R v Garth

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.