R v GM
[2015] ACTSC 155
•17 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v GM |
Citation: | [2015] ACTSC 155 |
Hearing Date(s): | 15-17 June 2015 |
DecisionDate: | 17 June 2015 |
Before: | Robinson AJ |
Decision: | The jury be directed to return verdicts of not guilty for all five charges. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Trial – Application to discharge jury from giving a verdict – Request indictment on new charges |
Legislation Cited: | Crimes Act 1900 (ACT), ss 296, 297 |
Cases Cited: | R v Parkes [2010] ACTSC 44 |
Parties: | The Queen (Crown) GM (Defendant) |
Representation: | Counsel Ms S McMurray (Crown) Mr T Quilter (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Bevan and Co Lawyers (Defendant) | |
File Number(s): | SCC 156A of 2013 |
ROBINSON AJ:
The accused, GM, was arraigned before the jury on 15 June 2015 on five charges, to which he pleaded not guilty.
Those charges consisted of four counts of an act of indecency and one count of sexual intercourse. It was incumbent on each of those five charges for the Crown to establish, beyond reasonable doubt, that, at the time of the five acts in question, the complainant was under the age of 16 years.
The complainant gave evidence that she was, at the time of the acts in question, under the age of 16. This issue was, however, disputed in the case.
There was a series of, what I will call, objective events, in the narrative of the witnesses called by the Crown. Those witnesses were family members of the complainant and the complainant herself.
Those events potentially, at least, gave a chronology and framework for the sequence of facts and circumstances and their timing in relation to the five charges.
Those events included –
· When the A family first lived at [address in Canberra];
· When DA became a member of [redacted];
· When JA first commenced to work at [redacted];
· When JA first commenced to work at [redacted];
· When the A family left [address in Canberra];
· When the trip to Merimbula occurred;
· When the trip to Melbourne occurred;
· When the trip to New Zealand occurred;
· When the trip to Harden, in Year 10, to pursue work experience at [redacted], occurred;
All of these events had the potential to be proved by documentary or other cogent evidence. No doubt some of them could not be so proved for one reason or another but a combination of them could have been proved by documentary or cogent evidence.
Throughout the Crown case, on the first two days of the trial, Counsel for the Accused made specific suggestions to the witnesses as to the timing of some of the above events. For example, he put to DA that she occupied the house at [address in Canberra] between 11 October 2006 to 11 November 2009.
This morning, the Crown conceded, in the absence of the jury, that it was unable to prove beyond reasonable doubt that the Complainant was under the age of 16 at the time of the charges in question.
The Crown then applied, under s 296 of the Crimes Act 1900 (ACT), for me to discharge the jury from giving a verdict upon the indictment and asked that I direct the accused to stand trial on a different indictment, containing the substance of the previous charges but with the additional allegation that the acts were done without consent.
Those charges would not require proof of the age of the complainant.
It is the case that the complainant, in giving evidence before the jury, gave evidence that she did not consent to any of the five acts charged. The issue of her consent is not directly relevant to those charges though and forensic decisions concerning the cross-examination of the complainant may have had a part to play in this issue and the conduct of the trial generally by the accused.
The Crown drew my attention to the statutory concept of autrefois acquit, embodied in s 296 and 297 of the Crimes Act.
Those sections embody a discretion.
Counsel for the accused urged upon me the following –
· The Crown has had more than a year and half to present its case;
· The issue ought to have been seen, at least in terms of an uncertainty as to time, by reason of the contents of the statements from the witnesses;
· The Crown has run its case and drawn a response from the accused so that, at any subsequent trial, the Crown would be apprised of the accused’s forensic position;
· Much trouble and expense have been incurred in the preparation of the case so far.
In reply, the Crown submitted that it first became aware of the identity of the apartment building at Merimbula where the accused and the complainant actually stayed only during the course of this trial. The Crown told me that overnight investigation, consequent upon that information, had revealed that the complainant’s evidence could now be seen as being one year out in terms of its correspondence to the facts of the case. The Crown assured me that the concession that I have recorded above (at [9]) was properly made and considered as a result of the ‘new’ date of the Merimbula holiday.
It is not suggested that anything done, or omitted to be done, by the accused contributed to the difficulty in the procedural progress of this prosecution.
Ultimately, the decision is a discretionary one.
I interpolate here that, in the course of hearing submissions, I found s 296 of the Crimes Act rather awkwardly expressed. Subsequently, my attention was drawn to R v Parkes [2010] ACTSC 44, particularly at [74]. It is not necessary to go into this matter further at this time. I base my decision on the exercise of discretion.
In my judgment, in the circumstances, the Crown should not be permitted to re-cast its case and present a different one.
Whether there is evidence capable of proving a case beyond reasonable doubt is a matter of law. By the Crown’s concession the five charges must fail by reason of the Crown being unable to prove its case beyond reasonable doubt on the question of the age of the complainant.
In the circumstances I decline to accede to the application made by the Crown prosecutor under s 296 of the Crimes Act.
[I will direct the members of the jury to find the accused not guilty of all 5 charges.]
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Acting Justice Robinson. Associate: Date: 29 June 2015 |
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