R v Kapociunas (No 2) - [2015] ACTSC 374

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 Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth) Criminal Code Act 1995 (Cth) ss 272.8(1), 272.9(1) Criminal Procedure Act 1986 (NSW) s 306I(1) Criminal Procedure Act 2009 (Vic) s 379 Evidence Act 1929 (SA) s 13D Federal Proceedings (Costs) Act 1981 (Cth) s 10(3) 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 Morris; Morris v Maroudas (1986) 66 ALR 699 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, 2^nd 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…

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.

Continue reading R v Kapociunas (No 2)

Details

AGLC: R v Kapociunas (No 2) [2015] ACTSC 374
Case: [2015] ACTSC 374
Decision Date: 3 December 2015

CaseChat Overview and Summary

The case of R v Kapociunas (No 2) involved the appellant, Kapociunas, who was charged with sexual assault and faced trial before the Supreme Court of Victoria. The primary dispute centred on the admissibility of a video recording made during an interview with a vulnerable witness, a child, under the provisions of Part 4 of the Crimes Act 1914 (Cth). The crux of the matter was whether the video recording could be admitted as evidence under the specific legislative framework designed to protect vulnerable witnesses.

The legal issues the court needed to address included the interpretation of the term "discontinued" as it appears in s 15YNA(b) of the Crimes Act. Specifically, the court had to determine whether the previous proceedings, which were terminated without a conviction, qualified as a "discontinued" trial under the statute. Additionally, the court considered whether the provisions of Division 5A of Part 4 of the Crimes Act applied to the re-trial of the appellant. These provisions are designed to protect vulnerable witnesses and govern the admissibility of video recordings in such cases.

The court held that the term "discontinued" in s 15YNA(b) of the Crimes Act encompassed proceedings that were terminated without a conviction. The court found that the previous trial, which had been discontinued without a verdict, fell within this definition. Consequently, the court concluded that the provisions of Division 5A of Part 4 of the Crimes Act applied to the forthcoming re-trial, ensuring that the protections afforded to vulnerable witnesses remained in effect. This interpretation aligned with the legislative intent to safeguard the interests of vulnerable witnesses in criminal proceedings.

The orders of the court confirmed that the trial of the accused was "discontinued" within the meaning of s 15YNA(b) of the Crimes Act. As a result, the provisions contained in Division 5A of Part 4 of the Crimes Act were applicable to the re-trial, ensuring that the protections for vulnerable witnesses were upheld.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.