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Porter (a pseudonym) v The King

Porter (a pseudonym) v The King

Case [2024] VSCA 127 7 June 2024

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0052

LINCOLN PORTER (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, BOYCE and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2024
DATE OF JUDGMENT:	7 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 127
JUDGMENT APPEALED FROM:	DPP v [Porter] (Unreported, County Court of Victoria, 15 March 2024, Judge Todd)

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CRIMINAL LAW – Interlocutory appeal – Proposed retrial on charges of sexual penetration and sexual assault – Two previous trials in which jury acquitted the applicant on some charges but were unable to reach verdicts on others – Whether retrial an abuse of process – Whether trial judge erred in refusing to order a permanent stay – Appeal allowed.

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Counsel
Applicant:		Mr D Carolan
Respondent:		Mr R Gibson KC with Mr M Wilson
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BOYCE JA
KAYE JA:

Introduction

On 20 May 2022, the applicant was committed to stand trial in the County Court on 12 charges of sexual assault of a child under the age of 16[2] and four charges of sexual penetration of a stepchild.[3] Subsequently, in June 2022, an indictment containing 16 charges was filed. Each charge alleged offending against the applicant’s stepdaughter, ‘MRD’, in a period between 27 February 2019 and 31 December 2021, when MRD was aged between 12 and 14 years.
[2]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016), s 49D(1).
[3]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016), s 50D(1).
In two trials, in April and September 2023 respectively, seven of the original 16 charges were disposed of: one charge was the subject of a directed acquittal; four charges resulted in jury verdicts of not guilty; and two charges were effectively abandoned by the prosecution. Two separate juries have been unable to agree on verdicts on the nine outstanding charges.
Notwithstanding that two juries have been unable to reach verdicts, the prosecution proposes to retry the applicant on the nine outstanding charges.
On 7 March 2024, the applicant made an application to a judge of the County Court for a permanent stay of the proceedings, contending that to attempt to once more try him amounts to an abuse of process.
In a ruling dated 15 March 2024, the judge refused to stay the proceedings (‘the ruling’ or ‘the interlocutory decision’).
By a notice filed 19 March 2024, the applicant seeks leave pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) to appeal against the interlocutory decision on a ground that contends that the judge erred
in refusing to order a permanent stay of the proceeding in circumstances where the applicant had been the subject…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Porter (a pseudonym) v The King

Details

AGLC: Porter (a pseudonym) v The King [2024] VSCA 127
Case: [2024] VSCA 127
Decision Date: 7 June 2024

CaseChat Overview and Summary

The case of Porter (a pseudonym) v The King concerns an interlocutory appeal by the applicant, referred to as Porter, against the proposed retrial of charges of sexual penetration and sexual assault. Porter had previously faced two trials in which the jury acquitted him on some charges but were unable to reach verdicts on others. Porter challenged the proposed retrial on the grounds that it would be an abuse of process and that the trial judge erred in refusing to order a permanent stay. The court was required to determine whether the proposed retrial was indeed an abuse of process and whether the trial judge's decision to not order a permanent stay was correct.

The court examined the principle of double jeopardy and the concept of abuse of process in criminal trials. It considered the circumstances of the previous trials and the reasons for the jury's inability to reach verdicts on certain charges. The court also reviewed the trial judge's decision-making process in relation to the application for a permanent stay. The court concluded that the circumstances of this case warranted a permanent stay due to the potential for an abuse of process, given the applicant's previous trials and the jury's inability to reach verdicts on some charges. The court found that the trial judge's refusal to order a permanent stay was an error.

In light of the above, the court allowed the appeal and set aside the orders for a retrial. The court held that the proposed retrial would be an abuse of process and that the trial judge should have ordered a permanent stay. The court emphasised the importance of protecting individuals from the stress and burden of repeated trials, particularly when the jury has already indicated difficulty in reaching a verdict. The final orders of the court were to set aside the orders for a retrial and to direct the parties to proceed with the appeal on the merits without further delay.

Orders