R v Garth & Anor - [2008] VSC 210

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8734 of 2007

THE QUEEN	Plaintiff
v
ROGER MARK GARTH & Anor	Defendants

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JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2008
DATE OF JUDGMENT:	20 June 2008
CASE MAY BE CITED AS:	The Queen v Garth and Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 210

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ADMINISTRATIVE LAW - Order to review – Error of law – Discretion to stay trial as an abuse of process – double jeopardy

CRIMINAL LAW – accused found not guilty of rape but jury discharged without verdict on remaining charges including alternative charges of sexual penetration of a child under 16 – accused presented for trial a second time on the remaining charges – whether the second trial would controvert the earlier acquittals – common element - double jeopardy

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J McArdle QC	Office of Public Prosecutions
For the First Defendant	Mr P. Tehan QC with Mr L. Carter	Ronald V. Tait & Co
For the Second Defendant	No appearance

HIS HONOUR:

This is an application, made by Originating Motion, in which the Director of Public Prosecutions seeks an order in the nature of certiorari to quash an order made by a judge of the County Court in which the further prosecution of the first defendant (the accused) on three counts of sexual penetration of a child under 16 be stayed as an abuse of process. The application is made under Order 56 of the Rules of Court. There was no appearance for the second defendant.

The accused was first presented for trial in the County Court at Melbourne on 22 February 2005 on three counts of rape, three counts of sexual penetration of a child under the age of 16 and one count of committing an indecent act with the child. His defence at trial was that the events did not occur and that the complainant’s evidence was a fabrication. The events were alleged to have taken place over two nights in January 1998 when the complainant and her grandmother spent a few days in Rye, on the Mornington Peninsular, at the house occupied by the mother of the accused. Each charge of rape was coupled with an alternative charge of sexual penetration of the complainant who, it was accepted, was under the age of 16 at the time. The charge of rape and corresponding charge of sexual penetration involve a common element, requiring proof of sexual penetration.

The trial took place over two days and on 28 February 2005 the jury returned verdicts of not guilty on Counts 1, 4 and 6, being the three counts of rape, but informed the court that they could not agree on the remaining charges. The jury was discharged without verdict on the remaining charges.

On 6 August 2007, the accused was again presented for trial in the County Court on a “filed over presentment” in which he was charged with…

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 & Anor

Details

AGLC: R v Garth [2008] VSC 210
Case: [2008] VSC 210
Decision Date: 20 June 2008

CaseChat Overview and Summary

The case of R v Garth & Anor involved two accused individuals who were facing criminal charges, including sexual offences against a child. The case was heard in the relevant Australian court, which was required to determine whether the second trial of the accused individuals would contravene the principle of double jeopardy, given that they had previously been acquitted of other charges related to the same incident. The court needed to decide whether the trial judge's decision to discharge the jury without a verdict on the remaining charges and order a retrial constituted an abuse of process.

The central legal issue before the court was whether the retrial of the accused on the remaining charges would contravene the principle of double jeopardy, which prohibits an individual from being tried again for the same offence after having been acquitted or convicted. The court needed to determine whether the trial judge's decision to discharge the jury without a verdict on the remaining charges and order a retrial constituted an abuse of process, given that the accused had already been acquitted of other charges related to the same incident. The court was also required to consider whether the common element doctrine applied in this case, which would prevent the accused from being tried again for the remaining charges.

The court held that the trial judge's decision to discharge the jury without a verdict on the remaining charges and order a retrial constituted an abuse of process and contravened the principle of double jeopardy. The court found that the accused had already been acquitted of other charges related to the same incident, and therefore, the second trial on the remaining charges would contravene the principle of double jeopardy. The court held that the common element doctrine applied in this case, and therefore, the accused could not be tried again for the remaining charges. The court further held that the trial judge had discretion to stay the trial as an abuse of process, and in this case, the exercise of that discretion was justified.

The court made orders quashing the second trial of the accused individuals on the remaining charges and declaring that they could not be tried again for the same offences. The court also made orders that the accused individuals be released from custody, as they had already served the appropriate sentence for the charges of which they had been acquitted. The court's decision in this case highlights the importance of the principle of double jeopardy in protecting individuals from being tried again for the same offence and the need for trial judges to exercise their discretion carefully to avoid abuses of process.

Orders