R v Kapociunas (No 1) - [2015] ACTSC 330

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 Davern v Messell (1984) 155 CLR 21 Pearce v The Queen (1998) 194 CLR 610 R v Carroll [2002] HCA 55 R v Garth [2008] VSC 210 R v Garth (2008) 191 A Crim R 256 R v Langdon [2004] 11 VR 18 The Queen v Prasad (1979) 23 SASR 161
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 4^th 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 28^th 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 24^th 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…

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.

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Details

Case: [2015] ACTSC 330
Decision Date: 30 October 2015

CaseChat Overview and Summary

In the case of R v Kapociunas, the defendant was acquitted on primary charges but faced potential re-trial on alternative counts. The Court of Appeal was asked to determine whether ordering a re-trial would be oppressive. The central issue was whether the re-trial would violate the principle against double jeopardy, given the previous acquittal on the primary charges. The court considered the circumstances of the initial trial, the nature of the alternative counts, and the potential impact on the defendant if required to undergo another trial. After thorough consideration, the court found that the re-trial would not be oppressive. The reasoning was based on the distinction between the primary and alternative counts, the need to ensure justice was served, and the procedural safeguards in place to prevent undue hardship on the defendant. The application for a stay of proceedings was dismissed, leaving the door open for the prosecution to proceed with the re-trial on the alternative counts.

Orders

Orders of the court

The application for a stay of proceedings is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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