R v Kapociunas (No 4)

[2015] ACTSC 422

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kapociunas (No 4)

Citation:

[2015] ACTSC 422

Hearing Date(s):

17 December 2015

DecisionDate:

17 December 2015

Before:

Murrell CJ

Decision:

Jury direction unnecessary.

Catchwords:

CRIMINAL LAW – Retrial – whether jury direction required – “full benefit” of previous acquittal

Cases cited:

AJS v The Queen (2007) 235 CLR 505

R v Garth (2008) 191 A Crim R 256

R v Kapociunas [2015] ACTSC 330

Parties:

The Queen (Crown)

Vytas Bronius Kapociunas (Accused)

Representation:

Counsel

Mr N Robinson QC (Crown)

Mr B Collaery (Accused)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Collaery Lawyers (Accused)

File Number(s):

SCC 1 of 2015

MURRELL CJ:

1. In an earlier trial, the accused was acquitted of three counts of engaging in sexual intercourse (cunnilingus) with a child outside Australia. In relation to three alternative counts of engaging in sexual activity with a child outside Australia, the jury was unable to reach verdicts. The current trial is a retrial on those three alternative counts.

1. Prior to commencing his closing argument, counsel for the accused submitted that I should direct the jury that the acquittal of the accused in the earlier trial means that they could not return a verdict of guilty on the basis that the accused intentionally placed his mouth, skin on skin, on the complainant's genital area.  The accused submitted that such a direction is necessary in order to give the accused the “full benefit” of the acquittal in the previous trial.

1. The retrial was the subject of an application before Walmsley AJ: R v Kapociunas [2015] ACTSC 330. In that application, a permanent stay was sought on three bases: first, that a retrial on the alternative counts offended against the rule of autrefois acquit; second, that it offended against the doctrine of issue estoppel; and, third, that it constituted an abuse of process. It was on the third basis that the application was pressed before Walmsley AJ. The accused submitted that, as he should be given the "full benefit" of the previous acquittal, the retrial on the alternative counts should not proceed.

1. His Honour concluded that there was no impediment to the retrial.  At [55] his Honour said:

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.

The basis upon which his Honour arrived at that conclusion, and the basis upon which I conclude that the accused's application is misconceived, is that the acquittal on the first trial in relation to the principal charges of having sexual intercourse (cunnilingus) with a child under 16 out of Australia, hinged on the jury's determination that the prosecution had not proved beyond reasonable doubt the relevant intention on the part of the accused, i.e. an intention to sexually stimulate the complainant.

1. The meaning of "full benefit" was discussed in AJS v The Queen (2007) 235 CLR 505. Important passages appear at [24]–[26]. At [24] the plurality pointed out that

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. That principle is that the verdict, as recorded in the court’s record, is not to be controverted.

1. In his reasons for decision, at [58], his Honour referred to observations made by the Victorian Court of Appeal in R v Garth (2008) 191 A Crim R 256, where the Court noted at [14]–[16] that:

[T]he principal issue at the trial was whether the respondent 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 re-litigate an issue which was determined in the ... [accused's]  favour at the trial.

1. At the earlier trial of the accused it was integral to the jury's verdict on the principal charges that the accused intended to stimulate.  That was fundamental to each allegation of sexual intercourse.  That is not an issue with which the jury in this trial should be concerned.  To the extent that they may be diverted by considering such an issue, it is appropriate that I direct them that they should not do so.  That is the only matter that the Court needs to address in order to ensure that the accused receives the full benefit of the acquittals at the previous trial.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date:  16 February 2016