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:

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.

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.

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.

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.

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

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 422
Decision Date: 17 December 2015

CaseChat Overview and Summary

In the case of R v Kapociunas (No 4), the defendant was facing a retrial following a previous acquittal. The nature of the dispute was the necessity of a jury direction in the retrial, specifically whether such direction was required to ensure the jury fully considered the previous acquittal. The matter was heard in the Supreme Court of Victoria. The legal issue before the court was whether a direction to the jury was required to ensure they fully appreciated the previous acquittal, specifically whether the phrase “full benefit” was necessary in the direction.

The court considered whether it was necessary to reiterate the phrase “full benefit” of the previous acquittal to the jury. The court held that a direction to the jury was not required if it was satisfied that the jury had already been adequately directed. The court reasoned that the jury would naturally consider the previous acquittal in their deliberations and that a specific direction was not necessary to ensure they fully appreciated the implications of the previous acquittal. The court found that the jury had already been sufficiently directed and that reiterating the phrase “full benefit” was unnecessary.

Consequently, the court determined that a jury direction was not required, and the defendant's retrial could proceed without such direction. The court held that the jury would naturally consider the previous acquittal in their deliberations and that a specific direction was not necessary to ensure they fully appreciated the implications of the previous acquittal. The court's final orders were that the jury direction was unnecessary.

Orders

Orders of the court

Jury direction unnecessary.

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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