R v Kapociunas (No 2)
[2015] ACTSC 374
•3 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kapociunas (No 2) |
Citation: | [2015] ACTSC 374 |
Hearing Date: | 30 November 2015 |
DecisionDate: | 3 December 2015 |
Before: | Murrell CJ |
Decision: | The trial of the accused was “discontinued” within the meaning of s 15YNA(b) of the Crimes Act 1914 (Cth) and the provisions contained in div 5A of pt 4 of the Crimes Act are applicable to the forthcoming re-trial. |
Catchwords: | CRIMINAL LAW – Evidence – vulnerable persons – admission of video recording given as evidence – discontinued proceeding – meaning of “discontinued” |
Legislation Cited: | Acts Interpretation Act 1901 (Cth) ss 13, 15AA, 15AB(1), 15AB(2) Crimes Act 1914 (Cth) ss 15YNA, 15YNA(b), 15YNB, 15YNC Juries Act 1967 (ACT) s 40 |
Cases Cited: | North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 90 ALJR 38 Postill v East Riding County Council (1956) 2 QB 386 Re Palmdale Insurance Ltd and Re the Companies Ordinance 1962 [1994] ACTSC 108 |
Texts Cited: | J A Simpson and E S C Weiner (eds), Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) vol 4 |
Parties: | The Queen (Applicant) Vytas Bronius Kapociunas (Respondent) |
Representation: | Counsel Mr N Robinson QC (Applicant) Mr B Collaery (Respondent) |
| Solicitors Commonwealth Director of Public Prosecutions (Applicant) Collaery Lawyers (Respondent) | |
File Number: | SCC 1 of 2015 |
MURRELL CJ:
Background to the application
Between 26 June and 9 July 2015, the respondent (accused) was tried before a jury on three counts of engaging in sexual intercourse with a child outside Australia contrary to s 272.8(1) of the Criminal CodeAct 1995 (Cth) (Criminal Code). The indictment did not contain the alternative statutory charges of engaging in sexual activity (other than sexual intercourse) with a child outside Australia contrary to s 272.9(1) of the Criminal Code. However, the trial was opened and run on the basis that, if the accused was found not guilty of any sexual intercourse charge, then the jury should consider the related alternative charge.
The child complainant and her sibling gave evidence (the original evidence) pursuant to pt 1AD of the Crimes Act 1914 (Cth) (Crimes Act). As they were “vulnerable persons” within the meaning of div 4 of pt 1AD of the Crimes Act their evidence (the original evidence) was recorded.
The accused was acquitted on the three charges of sexual intercourse. However, the jury was unable to agree on verdicts for any of the alternative charges and the jury was discharged.
In accordance with s 40 of the Juries Act 1967 (ACT) (Juries Act), after the jury was discharged, the matter was “adjourned” for mention before the Registrar.
At a call-over on 24 August 2015, a re-trial on the statutory alternative charges was fixed to commence on 7 December 2015. The applicant (prosecution) lodged a fresh indictment containing three charges of engaging in sexual activity (other than sexual intercourse).
On 22 October 2015, the prosecution lodged an application for an order permitting the uplift of the original evidence. The prosecution submitted that s 15YNB of the Crimes Act empowered the prosecution to prepare a record of the original evidence for the purpose of admitting that record at the re-trial. The prosecution submitted that an order permitting the uplift of the recording of the original evidence was necessary to give effect to that purpose. On 30 October 2015, Walmsley AJ made an uplift order.
In the proceedings before Walmsley AJ, the accused raised the issue of whether the record of the original evidence could be admitted at the re-trial. The accused submitted that, in the present circumstances, the Crimes Act did not permit the use of the record of evidence. Walmsley AJ referred this issue to the trial judge and it came before me for decision.
Issue
Pursuant to div 5A of pt 1AD of the Crimes Act, in applicable circumstances, a prosecutor may prepare a record of evidence given by a vulnerable person (including a child complainant) in an original proceeding. The record is admissible in a new proceeding and, at most, the vulnerable person need only give limited evidence in the new proceeding.
The question is whether, in the circumstances of this case, s 15YNA(b) of the Crimes Act applies and enables a record of the original evidence to be used in the re-trial on 7 December 2015. The answer to that question depends upon whether, at the conclusion of the earlier hearing, the trial proceeding was “discontinued” within the meaning of s 15YNA(b) of the Crimes Act.
Section 15YNA of the Crimes Act provides:
This Division applies if a proceeding (the original proceeding) involving the trial of one or more defendants:
(a)concludes and, on appeal, a new proceeding involving the trial of any or all of the defendant is ordered; or
(b)is discontinued and a new proceeding involving the trial of any or all of the defendants is ordered.
(Emphasis in original)
New indictment
The accused argued that, by its terms, the original indictment did not refer to the alternative statutory charges. Consequently, the presentation of a new indictment involved the prosecution bringing a fresh proceeding, rather than a “new proceeding involving the [same] trial” within the meaning of s 15YNA(b) of the Crimes Act.
In theory, the prosecution may be able to proceed on the original indictment, making it clear to the new jury that the only counts upon which a verdict would be sought were the alternative statutory charges, which were not referred to in the indictment. That would be very confusing to the new jury. Alternatively, the prosecution could seek to amend the original indictment to add the alternative statutory charges, and then seek pleas only in relation to the alternative statutory charges. That would also be confusing to the new jury. On either of those scenarios, if a copy of the indictment was provided to the jury (as is common practice) the accused could be prejudiced because the jury would learn, in effect, that he was originally charged with more serious matters.
The prosecution has chosen the sensible course of presenting a new indictment that contains only counts under s 272.9(1) of the Criminal Code.
For the purposes of the present application, I proceed on the basis that, regardless of whether a new indictment is presented, the empanelment of a new jury means that there will be a “fresh proceeding”.
However, the commencement of a “fresh proceeding” does not prevent the application of s 15YNA of the Crimes Act to the proceeding. Section 15YNA of the Crimes Act contemplates that, after “discontinuance”, there will be a “new proceeding” which is not the “original proceeding”, although it is part of an overarching “proceeding ... involving the trial of [the accused]”. The critical matter is that both the original proceeding in June/July 2015 and the new proceeding concern the trial of the accused on the same three allegations of sexual activity; both involve the trial of the accused on those allegations.
Meaning of “discontinue”
Neither “discontinued” nor “discontinuance” is defined in the Crimes Act. The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) vol 4, defines “discontinuance” as “[t]he action of discontinuing or breaking off; interruption (temporary or permanent) of continuance; cessation; intermission.” The words “discontinue” and “discontinued” are similarly defined. Thus, in its ordinary use, “discontinuance” may have one of two meanings: final termination or conclusion; and cessation (possibly temporary cessation) without conclusion.
The availability of two meanings for the word “discontinue” has been recognised in the case law. In Re Palmdale Insurance Ltd and Re the Companies Ordinance 1962 [1994] ACTSC 108, Higgins J considered the meaning of “discontinued” and “discontinuance” as used in s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) (Federal Proceedings (Costs) Act). Section 10(3) provided that a court could issue a costs certificate where the hearing of any proceeding was “discontinued” and a new hearing ordered, and the “discontinuance” was not attributable to the conduct of the parties. When a scheduled hearing did not proceed because no judge was available, the applicant applied for a costs certificate. At [20] Higgins J observed that the expression “discontinuance” may refer either to a complete cessation of the relevant activity or to an “intermission” or temporary cessation.
In Postill v East Riding County Council (1956) 2 QB 386, a circus had obtained a land use permit from the Council, “subject to the condition that the use thereby authorized [sic] should be discontinued” by a certain date. The circus stopped using the land, but returned in the following years. The Court found that the circus had complied with the requirement that it “discontinue” use in the first year. In doing so, the Court distinguished between continuing user and the resumption of use for the same purpose after the lapse of substantial time.
While the term “discontinuance” may be used to mean “temporary cessation”, it usually means more than a brief interruption in the nature of an adjournment part heard: Re Morris; Morris v Maroudas (1986) 66 ALR 699 at 700 per Muirhead J; Re Palmdale Insurance Ltd and Re the Companies Ordinance 1962 [1994] ACTSC 108 at [23].
On this application, the accused relied on the fact that, when the jury was discharged in July 2015, the proceedings were “adjourned” in accordance with s 40 of the Juries Act. The accused argued that proceedings could not be both “adjourned” and “discontinued”.
However, it is important to examine the substance of what occurred following the discharge of the jury rather than to place undue reliance on the word “adjourned” in the Juries Act. Section 40 of the Juries Act provides that, if a jury is discharged, “the judge shall adjourn the trial”. There is no alternative manner in which to proceed. The substance of what occurred was that the first proceeding ceased when the deciding tribunal (the jury) was discharged without reaching a decision about the guilt of the accused on the statutory alternative charges. His trial on those charges will recommence when a new jury is empanelled.
Section 15YNA of the Crimes Act
The meaning of the word “discontinued” in s 15YNA(b) of the Crimes Act (whether it means final termination or temporary cessation) is to be found by reading the word in its legislative context. The legislative context includes relevant headings: s 13 of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) provides that headings are part of an Act.
As Gageler J recently noted in North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38 at [81], statutory language is to be read in its statutory context and in light of its statutory purpose. In interpreting any statutory provision, preference is to be given to the interpretation that would best achieve the purpose or object of the Act: s 15AA of the Acts Interpretation Act.
In this case, both a textual analysis and a purposive approach support an interpretation of the word “discontinued” that means that, where a jury has been discharged after they have been unable to reach a verdict, the original proceeding has been “discontinued” within the meaning of s 15YNA(b) and, accordingly, div 5A of the Crimes Act applies.
In construing the meaning of “discontinuance” as it is used in the context of s 15YNA(b) of the Crimes Act, it is relevant to consider other terms that are used in s 15YNA of the Crimes Act and the manner in which they inform the meaning of “discontinuance”.
Section 15YNA of the Crimes Act speaks of two types of “proceeding involving the trial” of one or more accused: “the original proceeding” involving the trial; and “a new proceeding involving the trial”. The term “proceeding” is defined in pt 1AD, but in a manner that provides no assistance in relation to the present application.
The accused submitted that the s 15YNA Crimes Act distinction between “original proceeding” and “new proceeding” was a mistake or, at least, an unnecessary distraction because an accused cannot be tried repeatedly on the same charge. In relation to any charge, there can only be one “proceeding”.
In my view, the distinctions that s 15YNA makes between “trial”, “proceeding”, “original proceeding” and “new proceeding” are consistent with the fact that, while an accused person cannot be repeatedly “tried” for the same offence, there are circumstances in which the trial of an accused (the overarching “proceeding” involving the accused’s trial) will be broken into two proceedings: an “original proceeding” and a “new proceeding”. An accused is tried by jury. Where one jury is discharged, that part of the “proceeding” is finished. It is necessary to empanel a new tribunal (a new jury) to hear any resumption of the “proceeding”.
There are two circumstances in which a person’s trial may involve an “original proceeding” and a “new proceeding”: where a conviction is overturned on appeal and a new trial is ordered; and where a jury is discharged, either during the hearing of the case or because the jury cannot agree on a unanimous verdict. In the first circumstance, one could say that the trial had “concluded”, but that the “conclusion” was negated on appeal. In the second circumstance, one could say that the trial did not “conclude” because there was no decision about the guilt of the accused. Rather, the trial ceased and it was uncertain whether it would resume at a later time. The expression “discontinued” is apt to describe this second circumstance.
Section 15YNA Crimes Act refers to both of the circumstances in which a person’s trial is broken into two proceedings; it contemplates that a “new proceeding” may flow either after the “conclusion” of the “original proceeding” (if there has been a successful appeal) or where the “original proceeding” has been “discontinued”.
The headings in the Crimes Act support the interpretation for which the prosecution contended. Part 1AD of the Crimes Act is titled “Protecting vulnerable persons”. Division 5A, which sits in pt 1AD of the Crimes Act, is titled “Special rules for later trials”. Section 15YNA governs the application of div 5A, specifying the two circumstances in which later trials may occur, and which give rise to the need for special rules to protect vulnerable persons.
The interpretation for which the accused contended does not align with a purposive approach to the construction of s 15YNA of the Crimes Act.
All the provisions within pt 1AD of the Crimes Act are designed to protect vulnerable persons. Part 1AD of the Crimes Act limits the evidence that may be given about the sexual reputation and sexual experience of child witnesses (div 2), it protects vulnerable witnesses against inappropriate or aggressive cross-examination, and it precludes cross examination of vulnerable witnesses by unrepresented defendants (div 3). It makes provision for vulnerable witnesses to give their evidence by closed-circuit television (div 4). It enables the video recording of an interview with a child witness to be admitted as the witness’s evidence-in-chief (div 5). It enables a child witness to be accompanied by a support person and to give their evidence in closed court, and it protects child witnesses from identification (div 6). It would be a glaring oversight if pt 1AD failed to protect vulnerable persons in relation to evidence given at re-trials
Initially, the accused contended that s 15YNA of the Crimes Act did apply where a trial was aborted and the jury was discharged because a juror became ill or there was some misadventure. However, the accused later appeared to concede that there was no reason to distinguish between the situation where a jury is discharged mid-trial and the situation where a jury is discharged because it cannot reach a unanimous verdict. If, as the accused in effect contended, s 15YNA(b) of the Crimes Act does not apply in any situation where a jury has been discharged, then what work remains for it to do? The accused provided no satisfactory answer to this question.
On the other hand, the interpretation for which the prosecution contended is confirmed by the relevant explanatory memorandum. An explanatory memorandum may be considered if it is capable of either confirming that the meaning of a provision is the ordinary meaning that accords with a textual and purposive interpretation or determining the meaning of an otherwise ambiguous, obscure or unreasonable provision: s 15AB(1),(2)(e) of the Acts Interpretation Act. The “[e]xtrinsic material does not displace the text but can illuminate the meaning conveyed by the text”: North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38 at [81] per Gageler J.
Division 5A (which contains s 15YNA) was added to pt 1AD of the Crimes Act by the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth) (Amendment Act). The Explanatory Memorandum to the Amendment Act refers to the goals of minimising the trauma experienced by vulnerable witnesses and maximising the likelihood that such witnesses will give reliable evidence.
The interpretation for which the prosecution contended supports these purposes.
The interpretation for which the accused contended would lead to the anomalous result that, where a jury was discharged, vulnerable witnesses would be re-traumatised by having to give evidence in a new trial. Because of the lapse of time, such evidence may be less reliable than the evidence given in the original proceeding.
In relation to s 15YNA of the Crimes Act, the Explanatory Memorandum to the Amendment Act states, at page 44:
Under this section, the new Division will apply if a proceeding (the “original proceeding”) either:
· concludes and, on appeal, a new trial is ordered, or
· is discontinued for any reason and as a result a new trial is listed.
The Division will apply regardless of whether a new trial is ordered or listed for any or all of the defendants in the original proceeding. For example, the Division will apply where a new trial is ordered for one defendant, even if there were multiple defendants in the original proceeding.
(Emphasis added)
The Explanatory Memorandum emphasises that div 5A will apply if the original proceeding is discontinued “for any reason” that results in a “new trial” being listed.
The Explanatory Memorandum notes that the States and Territories have provisions that protect vulnerable persons called to give evidence in trials. The Explanatory Memorandum explains that one purpose for the enactment of div 5A of the Crimes Act was to “ensure there is consistency [with the States and Territories] in the support and protection afforded to victims and witnesses of Commonwealth criminal offences.”
The equivalent provision in New South Wales is in div 4 (titled “Special provisions relating to retrials of sexual offence proceedings”) of pt 5 (titled “Evidence in Sexual Offence Proceedings”) of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act (NSW)). Section 306I(1) of the Criminal Procedure Act (NSW) provides that:
(1)If the trial of an accused person is discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant.
The equivalent provision in South Australia is in s 13D (titled “Court’s power to admit evidence taken in earlier proceedings”) of the Evidence Act 1929 (SA). Section 13D(1) of the Evidence Act provides:
(1)If, on application by a party to civil or criminal proceedings before a court, the court is satisfied that—
(a)evidence given by a witness in earlier criminal proceedings is relevant to the proceedings before the court; and
(b)the witness—
...
(iv) is a vulnerable witness,
the court in the later proceedings has a discretion to admit an official record of the evidence.
...
The equivalent provision in Victoria is s 379 of the Criminal Procedure Act 2009 (Vic) (Criminal Procedure Act (Vic)). Section 379 of the Criminal Procedure Act (Vic) provides:
Subject to section 381, a recording is admissible in evidence as if its contents were the direct testimony of the complainant—
(a) in the proceeding; and
(b) unless the relevant court otherwise orders, in—
(i) any new trial of, or appeal from, the proceeding; or
(ii) another proceeding in the same court for the charge for a sexual offence or a charge for a related offence;
...
These equivalent provisions distinguish between an “original” (or “earlier”) and “new” (or “later” or “another”) proceeding. The distinction is consistent with the interpretation of s 15YNA of the Crimes Act for which the prosecution contended. The Explanatory Memorandum and the equivalent provisions confirm that the meaning to be attributed to s 15YNA of the Crimes Act is that for which the prosecution contended.
When a jury is discharged because it is unable to reach a unanimous verdict and the matter is “adjourned” in accordance with the Juries Act, it is “discontinued” within the meaning of s 15YNA(b) of the Crimes Act and div 5A of the Crimes Act applies to any re-trial.
Right to a fair trial
The accused submitted that his right to a fair trial was compromised by s 15YNC of the Crimes Act because the child complainant and her sibling could not be required to give further evidence.
Section 15YNC of the Crimes Act provides:
(1)A vulnerable person whose evidence is included in a record admitted under section 15YNB need not give any further evidence in the new proceeding unless the court orders that this is necessary:
(a)to clarify the vulnerable persons evidence given in the original proceeding; or
(b)to give proper consideration of information or material that has become available since the original proceeding; or
(c)in the interests of justice.
(2)If the court makes an order under subsection (1), the court is to ensure that the vulnerable person is questioned in the new proceeding only about the matters specified in the order.
The accused’s submission is not sustainable. A court is able to ensure a fair trial by ordering that a vulnerable person give such further evidence as is necessary in the interests of justice.
Contrary to the submission of the accused, the associated requirement that the court ensure that the vulnerable person is questioned “only about the matters specified in the order” does not imply a requirement that the accused identify the precise questions that the accused wishes to ask of the vulnerable person. Rather, it implies that the order will specify areas or topics for questioning. The Explanatory Memorandum states:
In particular, any examination of the vulnerable person by either the prosecution or defence must be limited to the matter that caused the court to make the order.
(Emphasis added)
The requirement to specify the matters (areas or topics) for questioning (as opposed to the specific questions) does not compromise the right of an accused to a fair trial.
If, in the forthcoming re-trial, the prosecution seeks to rely upon different particulars of sexual activity or otherwise adopt a different approach to the original evidence, then that may very well mean that it is in the interests of justice that leave be given under s 15YNC of the Crimes Act.
Orders
The Court:
(a)Declares that the provisions contained in div 5A of pt 4 of the Crimes Act are applicable to the forthcoming re-trial of the accused.
(b)Orders that the matter is listed at 2:15pm on 3 December 2015 for the purpose of hearing any application under s 15YNC of the Crimes Act.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 9 February 2015 |
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