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

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

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).

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.

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

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.

The six accused were alleged to…

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 R v Booth

Details

AGLC: R v Booth [2021] ACTSC 226
Case: [2021] ACTSC 226
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Richard Booth sought a permanent stay of proceedings against a charge of damaging property, which arose from the same circumstances as an earlier charge of aggravated burglary of which he had been acquitted. The applicant argued that continuing with the property damage charge would be an abuse of process. The court was required to determine whether the continuation of the property damage charge would constitute an abuse of process, considering the acquittal on the aggravated burglary charge.

The court considered the principles of abuse of process, which include the initiation of proceedings for an ulterior and improper purpose, proceedings being unjustifiably oppressive, or proceedings that would bring the administration of justice into disrepute. The court held that the jury's acquittal on the charge of aggravated burglary did not necessarily mean that the jury was not satisfied that the applicant was at the door or seeking to gain access to the residence. Furthermore, the maintenance of the property damage charge was neither inconsistent with nor had a tendency to undermine the acquittal on the aggravated burglary charge. The court concluded that there was no necessary inconsistency between a verdict of not guilty on the aggravated burglary charge and a verdict of guilty on the property damage charge, as both charges could be properly determined by the jury without inconsistency.

The court dismissed the application for a permanent stay of proceedings against the charge of damaging property. The reasoning was that the jury’s verdict on the aggravated burglary charge did not necessarily involve a conclusion about the applicant's presence at the door or intent to gain access to the residence. Moreover, maintaining the property damage charge was not inconsistent with or undermining the acquittal on the aggravated burglary charge. As such, the application was dismissed, and the charge of damaging property would proceed in accordance with the statutory provisions.

Orders