R v Garth - [2008] VSCA 252

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3819 of 2008

THE QUEEN	Appellant
v
ROGER MARK GARTH	First Respondent
and
COUNTY COURT OF VICTORIA	Second Respondent

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JUDGES:	MAXWELL P, NETTLE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2008
DATE OF JUDGMENT:	4 December 2008
DATE OF REASONS FOR JUDGMENT:	11 December 2008
DATE OF FURTHER ORDERS:	11 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 252

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CRIMINAL LAW – Procedure – Respondent found not guilty of three counts of rape but jury unable to agree upon three alternative counts of sexual penetration of child under 16 – Second trial on same three alternative counts of sexual penetration stayed as abuse of process – Queen v Carroll (2002) 213 CLR 635 followed.

APPEAL – Administrative law – Order in the nature of certiorari – No right of appeal against refusal of judge of Trial Division to quash order of County Court judge staying criminal trial – Supreme Court Act 1986 ss 17(2) and 17A(3).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the First Respondent	Mr P F Tehan QC with	Ronald V Tait
Mr L C Carter
For the Second Respondent	No appearance

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Court of Appeal
459 Lonsdale Street, Melbourne, Vic 3000.
MAXWELL P
NETTLE JA
WEINBERG JA:

This appeal was considered by the Court on 4 December 2008 at which time the appeal was dismissed as incompetent and counsel were informed that reasons would be handed down at a later date. What follows are those reasons.
The facts
Briefly, the facts of the matter are that on 22 February 2005 the first respondent was presented for trial in the County Court at Melbourne on three counts of rape and in the alternative three counts of sexual penetration of a child under 16 years and one count of an indecent act with the child. After a trial lasting several days, on 28 February 2005 the jury returned verdicts of not guilty on each of the counts of rape but were unable to agree on a verdict on any of the alternative counts of sexual penetration of a child under 16 or the count of indecent act with the child.
On 6 August 2007 the first respondent was re-presented for trial in the County Court at Melbourne on a filed over presentment preferring the same three counts of sexual penetration of a child under 16 years and the one count of committing an indecent act with the child. Thereafter, defence counsel moved the court for a permanent stay of the proceeding as an abuse of process and, on 8 August 2007, the County Court judge determined that the proceeding was an abuse of process[1] and ordered that the proceeding be stayed.
[1] On the basis, his Honour said, that it would impugn the integrity of the verdict of the jury at the first trial.
By Originating Motion dated 5 October 2007, the Crown…

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 Garth

Details

AGLC: R v Garth [2008] VSCA 252
Case: [2008] VSCA 252
Decision Date: 11 December 2008

CaseChat Overview and Summary

In the case of R v Garth, the Court was presented with an appeal concerning a criminal trial involving the first respondent, Garth, who had been acquitted of three counts of rape but the jury was unable to reach a verdict on alternative charges of sexual penetration of a child under 16. Following the first trial, a second trial was initiated on the same alternative charges, but the County Court judge stayed the proceeding, deeming it an abuse of process. The Crown subsequently sought judicial review of this decision, which was refused by the judge below. The appeal before the Court focused on the competency of the appeal against the refusal to quash the order staying the second trial.

The legal issues before the Court were twofold: whether the refusal of the judge below to quash the order staying the second trial was appealable, and whether the judge below erred in declining to exercise the discretion to grant a stay on the basis of abuse of process. The Court held that the decision of the High Court in Smith v The Queen made clear that there is no right of appeal to the Court of Appeal from a decision of a judge of the Trial Division to stay or refuse to stay the trial of a criminal proceeding, as per Section 17A(3) of the Supreme Court Act 1986.

Regarding the second issue, the Court noted that although it was unnecessary for the purposes of the double jeopardy principle, it was agreed that the judge below should have undertaken a balancing exercise if he had proceeded to consider the grant of a stay for abuse of process. However, the Court concluded that the appeal was incompetent and was dismissed. The Court also observed that costs could be awarded against the Crown under Section 24 of the Supreme Court Act 1986, subject to the practice in criminal proceedings, and that there was a question in Victoria whether the ancient doctrine that in matters at common law the Crown never paid nor received costs is relevant on an application for judicial review in this Court.

Orders

Orders of the court

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Background

Background to the litigation

This appeal was considered by the Court on 4 December 2008 at which time the appeal was dismissed as incompetent and counsel were informed that reasons would be handed down at a later date. What follows are those reasons. The facts Briefly, the facts of the matter are that on 22 February 2005 the first respondent was presented for trial in the County Court at Melbourne on three counts of rape and in the alternative three counts of sexual penetration of a child under 16 years and one count of an indecent act with the child. After a trial lasting several days, on 28 February 2005 the jury returned verdicts of not guilty on each of the counts of rape but were unable to agree on a verdict on any of the alternative counts of sexual penetration of a child under 16 or the count of indecent act with the child. On 6 August 2007 the first respondent was re-presented for trial in the County Court at Melbourne on a filed over presentment preferring the same three counts of sexual penetration of a child under 16 years and the one count of committing an indecent act with the child. Thereafter, defence counsel moved the court for a permanent stay of the proceeding as an abuse of process and, on 8 August 2007, the County Court judge determined that the proceeding was an abuse of process[1] and ordered that the proceeding be stayed. [1] On the basis, his Honour said, that it would impugn the integrity of the verdict of the jury at the first trial. By Originating Motion dated 5 October 2007, the Crown sought judicial review of the County Court judge’s determination and an order in the nature of certiorari to quash the determination. On 20 June 2008, the judge below handed down judgement refusing the application on the basis, as his Honour put it, that ‘the second trial of the accused involved an attempt to relitigate an element (sexual penetration) of the rape charges of which he was acquitted’.[2] [2] The Queen v Carroll (2002) 213 CLR 635. Competency of the appeal The first respondent objects that there is no right of appeal to this court from the determination of the judge below. We agree. In our view, the decision of the High Court in Smith v The Queen[3] makes clear that there is no right of appeal[4] to this court from a decision of a judge of the Trial Division to stay or refuse to stay the trial of a criminal proceeding. [3] (1994) 181 CLR 338. [4] Except as against conviction. Section 17(2) of the Supreme Court Act 1986 provides that: (2) Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge. But that is subject to s 17A(3), which provides that: (3) Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Trial Division constituted by a Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment. As s 17A(3)[5] was first interpreted by the Full Court in Boehm v Director of Public Prosecutions,[6] the words ‘a determination made in or in relation to a trial or proposed trial’ were taken to refer only to a determination of that description from which an appeal lay under Part VI of the Crimes Act 1958. So, since no appeal lay under Part VI of the Crimes Act against a determination of a judge to stay a trial (there being no conviction), it was held that the section did not preclude an appeal against a stay. But in Smith v The Queen,[7] the High Court put paid to that view of the section. The majority stated that the only way to reach the result in Boehm was to read the words in s 17A(3):[8] ‘Except as provided in Part VI of the Crimes Act’ as meaning ‘Where an appeal is provided directly or indirectly by Part VI of the Crimes Act’. And that was impermissible, it was said, because it would amount to an unacceptable degree of reconstruction of the section.[9] Accordingly, it was held, s 17A(3) precludes an appeal from any determination either to grant a stay of a criminal trial or to refuse it. [5] When first introduced into the Act it was numbered 14(3). [6] [1990] VR 494. [7] (1994) 181 CLR 338. [8] Then numbered 14(3). [9] (1994) 181 CLR 338, 346.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

We also add for completeness that the appellant also contended that the judge was in error in failing to undertake the sort of balancing exercise which was countenanced in R v P, NJ[17] and R v P, NJ (No. 2).[18] We agree in part. It was unnecessary for the purposes of the double jeopardy principle. As the judge below said: The exercise of discretion to grant a stay for abuse of process involves different considerations when the double jeopardy ground is invoked on the basis that there are common facts and a common element in a first and second trial. In Carroll, Gaudron and Gummow JJ said of the power to stay for abuse of process in the circumstances of that case: The power to stay is said to be discretionary. In this context, the word ‘discretionary’ indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not.[19] But, as already observed, if the judge had gone on to consider the grant of a stay in the exercise of discretion, it would have been necessary to undertake the balancing exercise. [17] (2006) 174 A Crim R 1. [18] (2006) 174 A Crim R 15. [19] Reasons, [26]. Conclusion and orders For the reasons given, we dismissed the appeal as incompetent. Section 24 of the Supreme Court Act 1986 provides that: The proceeding below was a criminal proceeding.[20] The preferable view is, however, that the grant in sub-s 24(1) of power over costs is ample, subject only to sub-s (2), and that sub-s (2) should be taken as doing no more than preserving the ‘practice in any criminal proceeding’ in the sense that the jurisdiction conferred by sub-s (1) can be exercised only conformably with the practice. [20] Clarkson v Director of Public Prosecutions [1990] VR 745, 747–749. In this matter the only practice relied upon by the Crown to resist an order for costs against it is ‘the ancient doctrine that in matters at common law the Crown never paid nor received costs’.[21] But as was observed by Phillips JA in Perkins v County Court of Victoria:[22] [21] Cf Latoudis v Casey (1990) 170 CLR 534, 559 (Dawson J in diss.) [22] (2002) VR 246, [27]. There must now be a question in Victoria whether the practice is relevant on an application in this court for judicial review in relation to a criminal trial in the County Court. Further, as his Honour observed, in Wright, Darcy and Currie,[23] where the only question was the power of the court upon an application for judicial review to order costs, costs were ordered against the applicant when judicial review was refused. Similarly in ex parte Dunn; ex parte Aspinall,[24] where certiorari was sought to quash a conviction by a Court of General Sessions for criminal contempt which was held to be beyond power, Cussen J granted costs and noted that there had been other such cases in which costs had been granted. See also the Director of Public Prosecutions v Warburton,[25] where Harper J awarded costs to the Crown on its successful application for judicial review and in R v Bibaoui,[26] where the court made an order for costs against the Crown on an appeal by it against sentence upon the respondent.

Ratio Decidendi

Legal Principle Established

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