R v Booth

[2021] ACTSC 226

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Booth

Citation:

[2021] ACTSC 226

Hearing Date:

1 September 2021

DecisionDate:

1 October 2021

Before:

Mossop J

Decision:

See [21]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for permanent stay of proceedings – where applicant was acquitted by jury of aggravated burglary – transfer charge of damaging property – transfer charge arising from same circumstances as aggravated burglary – whether continuation of the transfer charge would be an abuse of process – maintaining the damage property charge neither inconsistent with nor has a tendency to undermine acquittal on the aggravated burglary charge – application dismissed  

Legislation Cited:

Crimes Act 1900 (ACT), s 116

Criminal Code 2002 (ACT), s 45A

Supreme Court Act 1933 (ACT), ss 68CA, 68E(1)

Cases Cited:

Moti v The Queen [2011] HCA 50; 245 CLR 456

R v Carroll [2002] HCA 55; 213 CLR 635
Rogers v The Queen (1994) 181 CLR 251

TR v Director of Public Prosecutions [2020] NSWSC 255; 281 A Crim R 527

Parties:

Richard Booth ( Applicant)

The Queen ( Respondent)

Representation:

Counsel

J De Bruin ( Applicant)

S Jerome ( Respondent)

Solicitors

Legal Aid ACT ( Applicant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

SCC 177 of 2019

MOSSOP J:

Application for a stay

1. On 2 July 2021 a jury returned a verdict of not guilty in relation to a charge against Mr Booth of aggravated burglary.

1. There is a transfer charge of minor property damage contrary to s 116(3) of the Crimes Act 1900 (ACT) arising out of substantially the same circumstances as the aggravated burglary incident. It is therefore a related offence which can be dealt with by this court without a jury: see ss 68CA and 68E(1) of the Supreme Court Act 1933 (ACT).

1. By application in proceeding filed on 30 July 2021, the applicant seeks a permanent stay of the damage property charge. The application is made on the following grounds:

1.on 2 July 2021, the applicant was acquitted by a jury of aggravated burglary (joint commission);

2.the continuation of the damage to property charge is an abuse of process; and

3.the only available remedy is a permanent stay of proceedings.

1. The damage to property charge is particularised as being that the applicant caused damage to a wooden door and door frame.

1. The Crown case in relation to the aggravated burglary was that it was committed by joint commission when a number of people went to a house in Gilmore and entered the premises. The applicant was alleged to have been one of those people but he was not alleged to have entered the house proper as opposed to having entered the patio area. There was uncontradicted evidence that the door to the premises was damaged. There was evidence at trial that the occupants of the house had attempted to close the front door in order to keep the mob out.

1. The six accused were alleged to be guilty of the offence by joint commission pursuant to s 45A of the Criminal Code 2002 (ACT). The charge was also put in relation to two of the accused on the basis that they were individually responsible for the commission of the offence. One of the accused, Melanie Booth, was found guilty. Having regard to the acquittals of her co-accused, the guilty verdict must have been on the basis that she had individually committed the offence (that is, the offence was not by joint commission under s 45A of the Criminal Code).

1. The essential contention on the applicant’s part is that the verdict returned by the jury in relation to the applicant on the charge of aggravated burglary was because the jury was not satisfied that the applicant was at the door of the premises or, alternatively, that the applicant was seeking to gain access to the residence.

The power to grant a stay

1. The general principles applicable to an application for a stay so as to prevent an abuse of process are as follows:

1.The court has a prima facie obligation to exercise its jurisdiction.

2.The court has inherent power to stay proceedings which are an abuse of process.

3.It is only in exceptional cases that a stay of proceedings will be granted.

4.It is clear that the categories of abuse of process which might result in a stay extend beyond the initiation of proceedings for an ulterior and improper purpose. 

5.Although the decision to stay proceedings is said to be discretionary, that is because the circumstances in which proceedings will constitute an abuse of process may involve an exercise of categorisation in relation to which minds may differ.

6.Fairness to an accused is not the sole criterion in relation to the granting of a stay of proceedings. It is, however, a significant consideration where vexation or oppression is alleged.

See TR v Director of Public Prosecutions [2020] NSWSC 255, 281 A Crim R 527 at [39]‑[51] and the cases referred to therein.

1. In Rogers v The Queen (1994) 181 CLR 251 at 286-287 McHugh J said that although the categories of abuse of process remain open, they usually fall into one of three categories:

(1) the court’s procedures are invoked for an illegitimate purpose;

(2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or

(3) the use of the court’s procedures would bring the administration of justice into disrepute.

1. Although dissenting in that case, his Honour’s categorisation has been referred to with approval subsequently: see Moti v The Queen [2011] HCA 50; 245 CLR 456 at [10].

1. So far as a second category is concerned, McHugh J said (at 287) one of the examples of this form of an abuse of process is “where an estoppel cannot be established but the proceedings are unjustifiably oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings”. 

1. R v Carroll [2002] HCA 55; 213 CLR 635 involved the second category of abuse of process. In that case a subsequent prosecution for perjury arising out of the respondent’s evidence that he had not killed a particular person was found to be an abuse of process because it sought to controvert his acquittal on an earlier charge of murder. In dealing with how inconsistency should be assessed, Gleeson CJ and Hayne J said at [40]:

There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial.

1. At [47]-[48] their Honours said:

Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive.

To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided.

(Footnote omitted.)

1. Gaudron and Gummow JJ agreed (at [93]) with this aspect of the reasons.

This case

1. The elements of the charge of aggravated burglary by joint commission were in the circumstances of these proceedings as follows:

1.     The accused entered into an agreement with at least one other person listed in the charge to commit an offence of aggravated burglary, that is, an agreement that one or more of the parties to the agreement:

(a)would enter or remain in a building:

(i)knowing that the person entering would be a trespasser; or

(ii)being aware of a substantial risk that the person would be a trespasser (and the jury considers that having regard to the circumstances known to the person at the time of the agreement it would be unjustifiable to take the risk); 

(b)intending to commit an offence that involves causing harm or threatening to cause harm to anyone in the building; and

(c)do so in company.

2.     The accused and at least one other party to the agreement intended that an offence would be committed under the agreement.

3.     The following things occurred:

(a)one or more of the parties to the agreement entered or remained in a building;

(b)the person who entered the building was in company (with a person named on the indictment or another member of the group) when entering or remaining in the building; and

(c)the person who entered or remained in the building did so as a trespasser, that is, had no permission or other lawful entitlement to enter or remain in the building.

1. The elements of the related offence are that:

1.the person caused damage to property other than by fire or explosive;

2.the damaged property belonged to someone else;

3.the person intended to or was reckless about causing the damage; and

4.the damage caused to property did not exceed $5000.

1. The jury’s verdict is clearly consistent with it being not satisfied beyond reasonable doubt that the agreement required to establish the charge against the applicant had been entered into. In particular, the jury’s verdict is consistent with an absence of one or more of the required components of such an agreement namely:

1.the absence of an agreement to enter or remain in a building;

2.the absence of an agreement to commit an offence that involved causing harm or threatening to cause harm to any person the building;

3.the absence of an intention to enter the building in company.

1. In the circumstances of this case, it is most likely that it was the second component of the agreement of which the jury was not satisfied. However, it is not necessary to reach any conclusion on that issue. It is certainly not the case that as a matter of law the verdict of the jury necessarily involves a conclusion that the applicant was not at the door or that the applicant was not seeking to gain access to the residence. Further, it is unlikely that the jury reached its verdict on that basis and the maintenance of the damage property charge is neither inconsistent with nor has a tendency to undermine the acquittal on the aggravated burglary charge.

1. A different way of examining the issue would be whether, if both charges were determined by the jury, there would be a necessary inconsistency between a verdict of not guilty on the joint commission aggravated burglary charge and a verdict of guilty on the property damage charge. It is perfectly clear that for the reasons given above, the jury may quite properly have acquitted on the aggravated burglary charge while convicting on the damaged property charge. Given that there would be no necessary inconsistency in a jury reaching those conclusions, there would be no necessary inconsistency in reaching a verdict of guilty in circumstances where the transfer charge is, pursuant to the relevant statutory provisions, determined by the trial judge and not the jury.

1. Therefore, the application must be dismissed.

Orders

1. The order of the Court is:

1.     The application in proceedings dated 30 July 2021 is dismissed.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 1 October 2021