R v Kapociunas (No 1)
[2015] ACTSC 330
•30 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kapociunas (No 1) |
Citation: | [2015] ACTSC 330 |
Hearing Date(s): | 26 October 2015 |
DecisionDate: | 30 October 2015 |
Before: | Walmsley AJ |
Decision: | The application for a stay of proceedings is dismissed |
Category: | Interlocutory application |
Catchwords: | CRIMINAL LAW – Application for stay of proceedings – re-trial on statutory alternative counts following acquittal on primary counts – whether re-trial oppressive |
Legislation Cited: | Criminal Code (Cth), ss 272.4(1)(d), 272.8(1), 272.9(1), 272.28 |
Cases Cited: | AJS v The Queen (2007) 235 CLR 505 Connelly v DPP [1964] AC 1254 |
Parties: | Vytas Bronius Kapociunas (Applicant) The Queen (Respondent) |
Representation: | Counsel Mr J Burnside QC with Mr B Collaery (Applicant) Mr N Robinson QC (Respondent) |
| Solicitors Collaery Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) | |
File Number(s): | SCC 1 of 2015 |
WALMSLEY AJ:
The Issue
The issue to be resolved on this application is whether I should order a stay of proceedings by the Crown to retry the accused on three counts of indecent assault which were statutory alternatives in a previous trial at which he was acquitted of three counts of having sexual intercourse with a child under 16 years of age.
Background
By an indictment dated 4th March 2015 the Commonwealth Director of Public prosecutions (DPP) charged the accused with three counts of engaging in sexual intercourse with a child under 16 years, the sexual intercourse having occurred outside Australia, namely in Madrid, Spain, on 28th August 2014. Each offence was said to be in breach of section 272.8(1) of the Commonwealth Criminal Code (C’th) 1995, (‘the Code’) which is as follows:
272.8 Sexual intercourse with child outside Australia
Engaging in sexual intercourse with child
(1) A person commits an offence if:
(a) the person engages in sexual intercourse with another person (the child); and
(b) the child is under 16; and
(c) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 20 years.
The form of sexual intercourse alleged was cunnilingus. Cunnilingus is deemed to be sexual intercourse for the purpose of section 272.8 by virtue of section 272.4(1)(d) of the Code. It is not defined by the Code but is usually described to juries as oral stimulation of the female genital area by licking, kissing or sucking.
By notice dated 24th June 2015 the DPP informed the accused’s solicitor that at the then forthcoming trial, it would rely on section 272.28 of the Code, which provides relevantly:
272.28 Alternative verdicts
If, on a trial for an offence (the column 1 offence ) against a provision referred to in column 1 of an item in the following table, the trier of fact:
(a) is not satisfied that the defendant is guilty of the column 1 offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the column 2 offence ) against a provision referred to in column 2 of that item;
it may find the defendant not guilty of the column 1 offence but guilty of the column 2 offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Alternative verdicts
Item
Column 1
Column 2
1
Subsection 272.8(1)
Subsection 272.9(1)
...
...
...
Section 272.9(1) of the Code provides:
272.9 Sexual activity (other than sexual intercourse) with child outside Australia
Engaging in sexual activity with child
(1) A person commits an offence if:
(a) the person engages in sexual activity (other than sexual intercourse) with another person (the child ); and
(b) the child is under 16; and
(c) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 15 years.
“Sexual activity” is defined in the Dictionary to the Code as follows:
"sexual activity" means:
a)sexual intercourse; or
b)any other activity of a sexual or indecent nature (including an indecent assault) that involves the human body, or bodily actions or functions (whether or not that activity involves physical contact between people).
Thus the effect of section 272.28 is that where a jury finds an accused not guilty of the more serious offence, it may find him guilty of the less serious one, although the less serious offence does not appear on the indictment.
The trial took place between 26th June and 9th July 2015. At the conclusion of the trial the accused was found not guilty of the three offences on the indictment, but the jury was not able to agree on the alternative counts, so the jurors were discharged, the outcome of the alternative counts being left unresolved.
When the DPP informed the accused he would be tried again on the alternative counts, he applied for an order that the proceedings be stayed, submitting it would be oppressive for him to be tried again.
On the hearing of the application for a stay Mr J Burnside QC who with Mr B Collaery appeared for the accused, made a number of submissions, including that the DPP proposed to run the same trial again, and on the same facts, and that there was a lack of clarity at the first trial when the elements of the alternative counts were described, as compared with the elements of the principal counts, such that it is impossible to know the subject of the acquittals. The result, he submitted, was that the underlying principles to grant a stay for oppression are enlivened, and should be exercised in the accused’s favour. To consider those and his other submissions, it is necessary to explore the history of the first trial.
Opening the case for the Crown, Ms C.Davenport SC told the jury the offences were alleged to have occurred at the home of the accused and his wife, Australia’s then Ambassador to Spain, on 28th August 2014. The complainant told her mother and police that on that day when she and her brother had visited the accused with their father, the accused had given her a piggy back to his studio and had taken her to his bedroom, where he had kissed her mouth with his open mouth and had kissed her on her vaginal area. The Crown Prosecutor said the prosecution relied on three separate acts of cunnilingus, which she described as an “act of stimulation of the outside of the genital area of a person by another. It doesn’t require any penetration, it merely requires stimulation [such] as in licking, kissing, touching of the outside genital area with the tongue or mouth of one person to the genital area of another”.[1] She told the jury that when interviewed by police the accused had agreed he had piggy backed the complainant to and from his studio on a number of occasions that day and had on one occasion taken her to his bedroom when he had tickled her and, her stomach having become exposed, he had blown raspberries on it. He denied any sexual misconduct.
[1] T23.19-24.
Ms Davenport told the jury the essential elements of the offences on the indictment, were:
(a)The accused was an Australian citizen.
(b)He engaged in sexual intercourse
(c)With a child
(d)Outside Australia
(e)The child being under 16.
She explained that it was not disputed that the complainant was under 16 at the relevant time, that the accused was an Australian citizen, and that what was alleged to have occurred had occurred outside Australia. She said “the only issue...is whether...the Crown satisfies you beyond reasonable doubt that the conduct occurred, that is, that there was a kissing by the accused on the outside of the child’s vagina with her pants removed, that is, her underpants. There is available to you an alternative to that charge which is not on the indictment...It is what lawyers call a statutory alternative. So if you are satisfied of the elements that aren’t in dispute but you are not satisfied beyond reasonable doubt that the kissing of the vaginal area occurred with her pants removed but occurred perhaps on the outside of her pants, then there is an alternative charge available and that is that the accused engaged in what is called sexual activity with a child. Sexual activity includes activity of a sexual or indecent nature, including indecent assault. Whether such behaviour is indecent is a matter of community standards and ... if you accept and are satisfied beyond reasonable doubt that there was a kissing in the area of the vagina, even on the outside of her clothes, then [it is] a matter for you to determine whether on the standards of the community that is an indecent act of a middle aged man on an eight year old child in the circumstances in which it occurred.”
In accordance with convention when the complainant is a young person, the complainant’s evidence in chief consisted of a video recording of an interview of her by police. In her interview the complainant said that while her father had been working on the accused’s website, the accused had given her piggy backs and had taken her by piggy back to his studio and his bedroom.
She said sometimes when piggy backing her that day the accused had rubbed her vagina: “Whatever pants I’m wearing, he rubs that.[2] In answer to a leading question “And is his hand outside your pants”, she answered “Yes.”[3] Asked if his hand had ever been inside her pants she replied “Yes. Not when piggybacking though...When I lay down on the bed he started to- to rub it inside. And also this will be a bit odd. But he was kissing it too”.[4] Asked if he had said anything at the time she said “No, but on the third time he...said that I was beautiful. So I said, ‘I think’- to my mum- ‘I think he likes me’.[5] And then I told her what happened.” She said on three separate occasions he had kissed her on the lips, and on her vagina.[6] On the third occasion he had told her she was beautiful.[7] Asked whether he had rubbed her vagina with her pants on or off she said “Both”.[8] As to the kisses, she explained “He was kissing me the way when, um, ah, you-you open, um, your mouth and then you close it like that- and like that.”[9] She said the incidents when he had kissed her vagina had occurred in his bedroom, and that on the second occasion he had closed the bedroom blind.
[2] Q 278
[3] Q 281
[4] Q 282-287
[5] Q 288
[6] Q 311
[7] Q 310
[8] Q 314
[9] Q322
The accused’s counsel put to the complainant that the accused had never rubbed her vagina at any time. She maintained she was telling the truth. She was challenged about how the accused could have given her a piggy back and rubbed her vagina at the same time. She said “Because he holds me with one hand and puts his hand through his legs. It is possible.”
The complainant had told her mother of her allegations on the night of the day she said they had occurred. It was put to her she had told her mother the accused had not put his hand inside her pants. She agreed she had told her mother he had not.[10]
[10] T 86.7-10
The complainant’s mother told the jury the complainant had told her on the evening of the alleged events that the accused had kissed her mouth. She said her daughter had then pointed to her vagina when asked if he had kissed her “elsewhere”. She asked whether the accused had put his hands inside her pants and her daughter had answered “No”. Her daughter also told her the accused had touched her vagina when giving her a piggy back..
At the conclusion of the Crown case counsel for the accused submitted that taken at its highest the Crown had no case on any count to go to the jury. Her Honour the Chief Justice conceded there may have been an argument that the evidence was not strong enough to prove cunnilingus beyond reasonable doubt, but ruled that there was evidence on each count sufficient to go to the jury, so rejected the no case submission. Her Honour also rejected an application for a Prasad[11] direction.[12]
[11] The Queen v Prasad (1979) 23 SASR 161
[12] T 416 1-9;
The accused gave evidence. He denied any inappropriate contact but conceded having piggy backed the complainant and tickled her armpits and blown raspberries on her stomach. He maintained his denials of inappropriate contact under cross examination. The accused’s counsel, Mr B Collaery, called impressive character evidence, as well as evidence on some peripheral factual matters.
When addressing the jury Ms Davenport reminded them of the early complaint to the complainant’s mother, as well as a statement the complainant had made to her mother that she liked the accused and did not want to get him into trouble. She reminded the jury of the police interview. As to the evidence to support the charges on the indictment she said inter alia:
At 285 she says, “When I lay down on the bed he started to rub it”. Meaning her vagina, inside, and then interestingly enough again in my submissions to you showing the innocence of the child, she said to the police officer, “And also this will be a bit odd, he was kissing it too.” In my submission to you they are the words that have a ring of truth to them and the words of an innocent child. It’s not a child making up a story to get someone in trouble.
She had said in answer to question 62 – she had described three visits to the bedroom with the accused on that day and she went on to describe the third time, at which time she said that the accused had told her she was beautiful. She said at 306 that every time she was taken into the bedroom she was kissed on the lips, happens three times, and kissed on the vagina three – all of three times and rubbed on the vagina all of three times. When asked whether her pants were on or off, she said her pants were both on and off.
At 322 she described the actions that the accused had used when he was kissing her on the lips. Kissing, “He opened his mouth and then closed it.” And at 324 she says that when he kissed her vagina he kissed it the same way, that is by opening his mouth and closing it. And she said that he was both kissing and rubbing her vagina. That is the basis of the evidence of the three charges that are before you. That is, that there were three occasions ... she ended up in the bedroom and on each occasion he did the same thing.
She continued:
[The complainant] was consistent and absolutely adamant that these events ... occurred on 28 August last year and that what the accused had done to her was what she’s told the police. He kissed her on the lips, rubbed her vagina and kissed her vagina on three occasions on that day.
In her address the Crown did not refer to the alternative counts. The whole emphasis of her address was on the three counts on the indictment.
Mr Collaery submitted to the jury that there was no evidence of two of the three counts on the indictment. He submitted the facts said to constitute intercourse had not been proved.[13] In particular he called attention to the absence of evidence from the complainant as to what she meant by her vagina. He referred to the alternative counts[14] as follows:
Her Honour will direct you on the alternative charges. You were told that there are alternative charges that are – just to put it in broad terms – improper sexual activity. So if you don’t find this cunnilingus as sexual intercourse, there’s an alternative charge down the line. Just like you can’t toss a coin in this case, the alternative charges [are] not some fallback easy copout.
Our submission is that if you can’t find a cunnilingus offence you can’t find the alternatives because the alternatives are no stronger than the main ones in terms of their persuasiveness. So the elements of the alternative charges will be explained by her Honour. But the submission on behalf of the accused is that they stand no better in terms of proof beyond a reasonable doubt than the three very serious charges of sexual intercourse.
[13] T 576.34,T 579.13-14
[14] T587.21-33
Before the summing up there was discussion between the trial judge and counsel about the alternative counts and how Her Honour should direct on them.[15] In her charge to the jury Her Honour described each element of the principal counts, drawing the jury’s attention to the facts relied on by the Crown for each one.[16] Her Honour referred especially to the Crown case that for each count they had to be satisfied beyond reasonable doubt the accused had placed his mouth directly on the genital area, and that “it wasn’t done through clothing.”[17]
[15] T609.41-614.16.
[16] T618.42-622.30
[17] T 620.31.
Then[18] Her Honour embarked on a description of the alternative counts. She explained that it was an offence to engage in sexual activity other than sexual intercourse with a child outside Australia. She explained that three of the five elements of the alternative counts were the same as for the main counts, namely that the child was under 16, the activity occurred outside Australia, and the accused was an Australian citizen. Her Honour then said this:
[18] T623.4-8
So, now I’m going to come back to give you some more detailed directions about elements 1 and 2 of the alternative charge that is available if you find that the prosecution has failed to prove the main charge in the indictment beyond reasonable doubt.
So, element 1 is that the accused engaged in sexual activity. A person engages in sexual activity if they participate in conduct that fulfils the legal requirements of sexual activity and under the law sexual activity includes activity of an indecent nature so in this case the prosecution says that if you weren’t satisfied of the main charge you would at least be satisfied that the accused, on each of the relevant occasions, engaged in activity of an indecent nature.
So, what is an activity of an indecent nature? An activity is of an indecent nature if ordinary members of the community, such as yourselves, consider it to be indecent in the circumstances in which it occurs. ...
So, just coming back to focus on element 1 of the alternative charge for a moment of engaging in sexual activity. Element 1 requires you to consider whether you are satisfied beyond reasonable doubt that the accused engaged in the activity, in this case of placing his mouth on the complainant’s genital area and kissing it, whether that activity involved direct skin on skin contact or over the clothing. Now, you’ve got to consider whether and what activity occurred, whether you’re satisfied that that activity occurred beyond reasonable doubt.
Now, element 2 requires you, again, to consider the state of mind of the accused at the time, but in a different way from the main charge in the indictment. So in relation to the alternative charge, you need to ask yourselves whether you’re satisfied beyond reasonable doubt that the accused deliberately did the activity. That he, for example, deliberately put his mouth over the genital area, if he deliberately did it under the clothing or over the clothing. Whatever it was, did he do it deliberately, as opposed to it occurring accidentally. Whereas in relation to the main charges in the indictment, when you look at the accused’s intention, you’re asking yourselves whether you’re satisfied that he intended to cause sexual stimulation, when you look at the alternative charges you do not worry about whether his purpose was sexual stimulation. You don’t worry about his purpose. All you are concerned about [is] whether the placing of the mouth in the relevant location was deliberate, whether he meant to do it.
The prosecution case is that, regardless of the purpose for which such activity was undertaken, you would be satisfied that it was indecent by ordinary community standards. Of course, the defence says that you would not be satisfied beyond reasonable doubt that there was any deliberate placing of the mouth over the genital area, either above or beneath clothing, and as I’ve explained to you, any accidental placing would not satisfy the intention requirement.
So that the defence says that in respect of charge 2 – if we can call it the window-shutting episode – that in respect of that matter if, and the accused denies, but if there was any mouth in the area of the genitals, that that was accidental and there was no intention for the mouth to be there, and therefore the alternative charge is not proven. In relation to charges 1 and 3, again, the defence case is that the evidence is very vague and it is not a sufficient basis for you to be satisfied beyond reasonable doubt that any relevant activity occurred.
Now, one matter that you might have to consider, and I would suggest you would want to consider, if you come to considering the alternative charges, is whether you are satisfied beyond reasonable doubt that any use of the mouth was skin-on-skin, or whether you are only satisfied beyond reasonable doubt that it was above the clothing, because if you are only satisfied that it was above the clothing, then that may be important to whether you are satisfied beyond reasonable doubt that it was indecent according to ordinary community standards.
I’m not making any suggestion to you – this is your decision – but it seems to me that it may be relevant to decide whether you are actually satisfied beyond reasonable doubt that any touching was skin-on-skin, because the community, and you as representatives of it, may have a different view about the decency of mouth on genitals if it is over clothing versus under clothing.
Now, of course, I’ve explained the elements that the prosecution has to prove in relation to each of the charges in the indictment of sexual intercourse and in relation to the alternative charges, if you’re not satisfied of the principal charge and you turn to consider the alternative charge for any of the three matters. Of course, if you’re not satisfied beyond reasonable doubt that there was either sexual intercourse, or at least an activity of an indecent nature, then the verdict on the charge is not guilty.
Thus in putting the alternative case Her Honour noted the Crown did not have to prove an intention to cause sexual stimulation, merely that there had been a deliberate placing of the mouth on the genital area, whether with pants on or not. Consistently with the offences being mutually exclusive, Her Honour said it was only if they were not satisfied beyond reasonable doubt the accused had had sexual intercourse with the complainant, that they should consider the alternative counts. Her Honour was not asked to give any further directions on the elements of the main counts or the alternatives.
The jury retired on 8th July. On 9th July at 9.37 am the jury gave verdicts of not guilty on the principal counts. They deliberated further until 4 pm when, as they could not reach unanimous verdicts on the alternative counts, they were discharged.
Her Honour then adjourned the proceedings until 23rd July. The proceedings were on that day adjourned again. On 12th August the DPP informed the accused’s solicitors he proposed to retry the alternative counts. The matter came before the Chief Justice on 24th August. Her Honour listed it for retrial on 7th December 2015, allocating 26th October for the hearing of any stay application the accused might make.
By letter of 15th September 2015 the DPP gave the following particulars of where and when the offences to be retried were said to have occurred and what they consisted of:
Count 1
(a)In the main bedroom of the residence;
(b)Before lunch;
(c)The accused did;
(i)Kiss,
(ii)Rub (but not including during a piggy back ride), the region of the complainant’s vagina and
(iii)Kiss the mouth of the complainant
Count 2
(a)In the main bedroom of the residence
(b)After lunch;
(c)The accused did;
(i)Kiss,
(ii)Rub (but not including during a piggy back ride), the region of the complainant’s vagina; and
(iii)Kiss the mouth of the complainant.
Count 3
(a)In the main bedroom of the residence;
(b)After lunch, on an occasion other than count 2;
(c)The accused did:
(i)Kiss,
(ii)Rub (but not including during a piggy back ride), the region of the complainant’s vagina; and
(iii)Kiss the mouth of the complainant
Also before me on 26th October when I heard the stay application was an application by the DPP for leave to uplift the evidence of the complainant and her brother given at the first trial for use at the retrial. The DPP proposes to apply under section 15YNB Crimes Act (C’th) to adduce that evidence at the retrial on the basis that the original proceedings were relevantly “discontinued” and a new proceeding involving the trial of the accused has been or will be ordered.
Although I heard argument from counsel for the DPP and for the accused on the DPP’s application, I indicated to the parties I would not rule on that application until I had decided the accused’s application for a stay, and that I would then, if appropriate, hear further from the parties as to the final disposition of that application.
The Accused’s arguments for a stay
Although in his application and his written submissions the accused relied on the doctrines of autrefois acquit, and issue estoppel, the substantive argument Mr Burnside relied on was that it would be oppressive, and therefore an abuse of process, for the accused to face a new trial, and that the proceedings should accordingly be permanently stayed.
Mr Burnside relied on Davern v Messell [1984] HCA 34; (1984) 155 CLR 21 at [30] for the proposition that it is oppressive for a prosecutor to secure a retrial on the same evidence as was before the original fact finder in which an accused has been found not guilty. He also relied on Pearce v The Queen [1998] HCA 57: (1998) 194 CLR 610 at [17] and [19] for the propositions that prosecuting authorities should not be permitted to make repeated attempts to convict an individual, and that the plea in bar goes to offences the elements of which are the same as or included in the elements of an offence for which an accused has been tried to conviction or acquittal.
Mr Burnside submitted the elements of the principal offence of sexual intercourse are included in the alternative counts, and that cunnilingus performed by an adult on a child is an indecent assault, thus included in “Sexual activity” as defined in the Dictionary to the Code.
Mr Burnside also relied on R v Carroll [2002] HCA 55; (2002) 213 CLR 635, where an accused was acquitted on appeal after being found guilty of perjury for denying at his murder trial, at which he was acquitted, that he had killed the deceased. An essential element in the perjury case was that the accused had killed the deceased. The perjury case therefore amounted to relitigating the very issue decided in favour of the accused at the murder trial. Mr Burnside submitted the same reasoning applied here, where the accused gave sworn evidence at his first trial in which he denied kissing or rubbing the complainant’s vagina, or kissing her on the mouth preparatory to performing cunnilingus.
I have noted above that Mr Burnside submitted too that the first trial was characterised by confusion about the elements of the charges brought as well as the statutory alternatives. Thus, he submitted, it is impossible to discern what was the subject of the jury’s acquittals. Given the principle that an accused should not be put up again on the same facts, the principles requiring a stay for oppression are enlivened.
Mr Burnside submitted that neither in the police interview nor at trial was the evidence explored as to whether the complainant’s pants had been on or off at relevant times. And that although she said they had been both on and off, that was vague evidence, especially since it was impossible to know when and during what alleged conduct, they had been on or off. He submitted the Crown at the previous trial had failed to identify what conduct had constituted the events charged and the alternatives. He drew attention to the fact that nothing was said about rubbing in the Crown’s opening. By putting up the accused again, he argued, the Crown wants to deny the opacity of the acquittal. It is impossible to know whether the jury acquitted because they rejected the case he kissed the complainant in the genital area, inside or outside the pants. It says nothing about the kissing on the lips, or the part played by the evidence of rubbing. He submitted the Crown had made no attempt in her closing address to distinguish between the principal charges and the statutory alternatives.
He submitted Her Honour the trial judge had not resolved that problem. He submitted once the acquittal is taken into account the only part of the new charges not caught up in it is the kissing on the mouth allegation. He maintained that the same conduct relied on for the principal charges is relied on for the new ones.
Mr Burnside referred me to and relied on R v Garth [2008] VSC 210; [2008] VSCA 252 (on appeal), where, in circumstances similar to these, a trial judge ordered a stay and was found not to have erred in doing so.
The Crown’s arguments against a stay
Mr Nicholas QC for the DPP submitted that the DPP is entitled to put the accused up again, and that it was clear from the addresses and the charge that the elements of the three counts laid were sexual intercourse, namely cunnilingus as the physical element, with all conduct being directly onto the skin. He submitted the elements were different for the alternatives. In particular, with the alternatives, there is no requirement to prove intention to stimulate. He submitted it followed from the not guilty verdict that the jury was not satisfied of an intention to stimulate or that there was no direct contact with the skin or both. Thus the accused is not being put up again for the same conduct.
In a sexual assault case where the conduct alleged is sexual intercourse and indecent assault he submitted there can be no abuse of process or oppression if there is to be a retrial only on the indecent assault. He relied on and referred me in that context to AJS v The Queen (2007) 235 CLR 505.
Consideration
I have reached the view that this application should be dismissed.
There is some common ground between the counts on which the accused was acquitted and the alternative ones, but they do not have in common a vital element which must be said to be subsumed in the verdicts. The counts on which he was acquitted alleged sexual intercourse, the fault element being an intention to stimulate. That issue has been put to rest by the verdicts. He cannot be tried again for an offence inquiring whether sexual intercourse occurred. The remaining counts allege what is in essence three occasions of indecent assault. The factual background is the same as that at the first trial. It will be alleged the accused on three separate occasions touched the complainant inappropriately. The jury will have to decide whether touching occurred, whether it was deliberate, and in circumstances of indecency. I do not consider there is any unfairness to the accused involved in a new trial on those counts. The differences between the offences are quite apparent from Her Honour’s charge when, as it should be, it is read as a whole. As I see what the DPP is doing here, it is to have retried counts which do not have the same vital elements as are in the principal counts. Apart from the obvious formal matters such as the age of the complainant and the fact that the accused is an Australian citizen, the facts concerning the alleged offences now to be tried involve different physical acts and a different mental element.
What the High Court said in Davern v Messell does not I think advance the accused’s position. There, summary offences were heard by a magistrate and resulted in findings of guilt. On appeal, before a single judge by way of a rehearing, the accused persuaded the court there was no prima facie case. An appeal by the informant to the Full Court of the Federal Court was held to be incompetent. The High Court allowed the informant’s appeal and remitted the matter to the Full Federal Court. It was in the context of that appeal that the accused argued he would face double jeopardy if the appeal succeeded. In deprecating the concept of two trials on the same evidence Gibbs CJ merely stated the well accepted principle protecting an accused from the unfairness of having to face two trials for the same offence after having been acquitted at the first, and the dangers that might arise in the absence of that principle.
The same may be said of the passages relied on from Pearce. It should also be noted that at [24] in Pearce, McHugh, Hayne and Callinan JJ said “[T]here are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.”.
In R v Langdon [2004] 11 VR 18 at [49]-[51] Gillard AJA (with whom the other members of the court agreed) held that in looking at a plea in bar argument the court must look at the elements and ascertain whether they are the same or are all included in the other charge. Unless they are in one of those categories the doctrine does not apply.
As to Mr Burnside’s submission that from the definition of “sexual activity” in the Dictionary to the Code, cunnilingus could constitute indecent assault, the alternative counts which allege sexual activity arise from section 272.9(1), which specifically excludes sexual intercourse from its reach. In other words that section cannot apply to any offence of having sexual intercourse with a child under 16. So the definition of sexual activity does not have the effect contended for.
Added emphasis for that position comes from section 272.28 of the Code which states what alternative counts are available.
I do not consider Carrol v The Queen assists the accused. In the first trial there, the issue was whether the accused had murdered the victim, and he was acquitted. In the second, he was charged with committing perjury at his first trial when denying he had killed the victim. So the question of whether he had killed the victim was an element which the second jury also had to consider. In other words the perjury charge called into question the verdict at the first trial at which he had been found not guilty of the killing. What the DPP proposes here does not have that effect. Although the accused gave evidence at the first trial in which he denied all improper contact, the jury found him not guilty of sexual intercourse. It did not reach a verdict on whether he had otherwise indecently assaulted the complainant. So a trial on those counts will not call into question the verdicts on the sexual intercourse counts.
The fact that the evidence called at the first trial will be relied on at the second does not amount to oppression. In Connelly v DPP [1964] AC 1254 at 1305-6 Lord Morris of Borth-y-Gest said of the doctrine of autrefois convict or acquit, “What has to be considered is whether the crime or offence charged in the later indictment is the same or...substantially the same as...in a former indictment and that it is immaterial that the facts under examination or the witness being called in the later proceedings are the same as those in some earlier proceedings.”
I do not accept the submission that there was confusion arising from the Crown address and the charge. It is true that the Crown did not refer to the alternative counts in her closing address, but as is apparent from what is set out above from the trial transcript, Her Honour dealt at length and in detail with the elements of the counts on the indictment and the alternatives, as well as the evidence relied on by the Crown.
It is true that there were some apparent problems with the complainant’s evidence about whether her pants had been on or off at relevant times and that the Crown did not refer to some aspects of the evidence in her addresses. But the case which went to the jury was clear. The Crown accepted the burden of proving beyond reasonable doubt that sexual intercourse had occurred, and conceded for that to be proved the jury had to be satisfied the complainant’s pants were off. The case on the alternative counts as put to the jury by Her Honour assumed the jury was not satisfied beyond reasonable doubt intercourse had occurred and permitted two possible positions: that the pants were on and that they were off: in either position it was open to them to find the alternative counts proved.
I accept the Crown’s submission that significant support for its position may be found in AJS v The Queen (2007) 235 CLR 235. There the presentment had on it only one offence, namely incest. There was a statutory alternative of indecent act with a child. The accused was found guilty of the charge on the indictment. On appeal he was acquitted of the incest charge but did not dispute that it would be open for him to be retried on the alternative count. At [19] Gleeson CJ, Hayne, Heydon and Crennan JJ said:
No question of double jeopardy arises in the present matter...The second of the offences now under consideration...was a statutory alternative to the first. There has been and would be no double prosecution of the kind considered in Pearce...The charge of incest...has now been finally resolved in his favour....But the other, lesser, statutory offence of committing an indecent act put in issue by the presentment charging the appellant with incest has not been determined...and remains unresolved.
The appellant in AJS was concerned that at any new trial the complainant might give evidence of incest, the issue resolved in his favour by the acquittal. But the court said at [22], [24]: “[T]here appears to be no reason why the jury could not be told that the prosecution accepts that the evidence is not sufficient to establish any intentional penetration...When an accused person has been acquitted of a charge by verdict of a jury, it will not be possible to know why the jury reached the verdict. In those circumstances, the reference to the person having the “full benefit” of an acquittal may reflect the opacity of that verdict. But it is important to recognise that the references made to the “full benefit” of an acquittal are no more than a particular restatement of a more fundamental principle...[namely]...that the verdict, as recorded in the court’s record, is not to be controverted”.
I see no reason why the jury at the retrial cannot be given an appropriate direction so this accused too may have the full benefit of his acquittal.
There is also support for the Crown’s position in Garth. There the presentment contained three counts of rape, three alternative counts of sexual penetration of a child under 16, and a count of an indecent act with a child. The accused was found not guilty of the rape charges but the jury could not agree on any of the other counts. The accused was re-presented for trial on a filed over presentment preferring all four alternative counts. On the accused’s application the trial judge determined that the proceeding was an abuse of process and ordered that the proceeding be stayed.
The Crown appealed to a single judge of the Supreme Court of Victoria, Judd J. The Crown referred His Honour to and relied on AJS v The Queen. His Honour distinguished AJS, holding that the statutory alternative in AJS did not depend on proof of the same facts to establish the charge, whereas on the facts before him, the second trial involved an attempt to relitigate an element (sexual penetration) of the rape charges of which he had been acquitted. He considered that proceeding with the second trial would have been manifestly inconsistent with the acquittal.
An appeal to the Victorian Court of Appeal was found to be incompetent. But the Court in passing, made some observations in the course of which they expressed disagreement with Judd J on that issue. As they noted [14],[16] “[T]he principal issue at the trial was whether the [accused] had penetrated the complainant. But the fact that the alternative counts of sexual penetration of a child under 16 were left to the jury necessarily dictates that penetration was not the only issue before the jury. ..[T]he jury had to consider not only penetration but also consent...[I]t cannot be said that the issue of penetration was decided in the [accused’s] favour at the trial or, therefore, that to put up the [accused] again on the counts of sexual penetration of a child under 16 would be to relitigate an issue which was determined in the [accused’s] favour at the trial.”
Their Honours distinguished Carroll, as the main focus of both trials there had been: “did he kill the deceased?” Their Honours expressed the view that at the new trial which had been stayed, there would have been no manifest inconsistency. I find their Honours’ reasoning persuasive here, where the retrial will involve neither the retrial of the sexual intercourse element nor the intention to stimulate.
Conclusion
Thus I am far from being persuaded to order a stay. With appropriate directions at the new trial the accused will have the full benefit of his acquittals. The application should be dismissed.
ORDERS
Application for a stay is dismissed
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley. Associate: Date: 9 March 2016 |
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