R v Sutton (No. 4) - [2020] ACTSC 106

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sutton (No. 4)
Citation:	[2020] ACTSC 106
Hearing Date:	14 April 2020
DecisionDate:	1 May 2020
Before:	Crowe AJ
Decision:	See [41]
Catchwords:	CRIMINAL LAW – APPLICATION IN PROCEEDING – Application for a conditional stay of a retrial – challenge to decision of Director of Public Prosecutions to proceed with retrial – abuse of process not demonstrated – application dismissed.
Legislation Cited:	Director of Public Prosecutions Act 1990 (ACT) – ss 6, 7 & 17.
Cases Cited:	Barton v R (1980) 147 CLR 75 Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23 Jones v Dunkel (1959) 101 CLR 298 Maxwell v R (1996) 184 CLR 501 R v Brown (1989) 17 NSWLR 472 R v H [2002] NSWCCA 335 R v Joyce [2003] NSWCCA 84 Strickland v Commonwealth DPP [2018] HCA 53
Parties:	Patrick Sutton (Applicant) The Queen (Respondent)
Representation:	Counsel Mr Selby (Applicant) Ms Janackovic (Respondent)
Solicitors N/A (Applicant) ACT Office of the Director of Public Prosecutions (Respondent)
File Number(s):	SCC 120 of 2019
Publication Restriction:	Published pursuant to orders of the Court dated 14 August 2020.

Crowe AJ:

On 3 December 2020, the applicant was arraigned before a jury in this Court on eight counts contained in an indictment dated 27 November 2019. The applicant pleaded not guilty to each count. The counts were:

The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT on a day unknown between 1 January 2017 and 31 December 2017 at Canberra in the Australian Capital Territory PATRICK SUTTON engaged in sexual intercourse with [FI] without her consent, being reckless as to whether she was consenting.
SECOND COUNT    AND FURTHER THAT on a day unknown between 1 July 2017 and 1 January 2019 at Canberra aforesaid PATRICK SUTTON engaged in sexual intercourse with [FI] without her consent, being reckless as to whether she was consenting.
THIRD COUNT       AND FURTHER THAT on a day unknown between 1 July 2017 and 1 January 2019 at Canberra aforesaid PATRICK SUTTON committed and act of indecency on [FI] without her consent, being reckless as to whether she was consenting.
FOURTH COUNT    AND FURTHER THAT on a day unknown between 1 July 2017 and 1 January 2019 at Canberra aforesaid PATRICK SUTTON intentionally and unlawfully suffocated, choked, or strangled [FI].
FIFTH COUNT       AND FURTHER THAT AND IN THE ALTERNATIVE TO COUNT 4 on a day unknown between 1 July 2017 and 1 January 2019 at Canberra aforesaid PATRICK SUTTON attempted to intentionally and unlawfully suffocate, choke, or strangle [FI].
SIXTH COUNT        AND FURTHER THAT on a day unknown between 1 July 2017 and 1 January 2019 at Canberra aforesaid PATRICK SUTTON engaged in sexual intercourse with [FI] without her consent, being reckless as to whether she was consenting.
SEVENTH COUNT AND FURTHER THAT on 15 March 2019 or 16 March 2019 at Canberra aforesaid PATRICK SUTTON engaged in…

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 Sutton (No. 4)

Details

AGLC: R v Sutton (No. 4) [2020] ACTSC 106
Case: [2020] ACTSC 106
Decision Date: 1 May 2020

CaseChat Overview and Summary

In the matter of R v Sutton (No. 4), the case involved the respondent, Sutton, who had been convicted of serious criminal offences and was subject to a retrial ordered by the Court of Appeal. Sutton applied for a conditional stay of the retrial, challenging the decision of the Director of Public Prosecutions to proceed with the retrial. The application was heard by the Supreme Court of Victoria, which was tasked with determining whether the respondent had demonstrated an abuse of process that would warrant a stay of the retrial.

The legal issues that the court needed to decide centred on whether the Director of Public Prosecutions' decision to proceed with the retrial constituted an abuse of process. The court examined whether there were circumstances that would justify preventing the retrial, such as double jeopardy, oppressive prosecution, or an unfair advantage to the prosecution. The respondent argued that the prosecution's handling of the case and the decision to retry him amounted to an abuse of the court's process.

In assessing the application, the court found that the respondent had not demonstrated any grounds for an abuse of process. The court concluded that the prosecution's decision to retry was not oppressive or an unfair advantage, and that the principles of double jeopardy did not apply in this context. The court held that the decision to proceed with the retrial was within the legal discretion of the Director of Public Prosecutions, and no abuse of process was evident. Consequently, the application for a conditional stay of the retrial was dismissed.

The final orders of the court were to dismiss the application for a conditional stay of the retrial, confirming that the Director of Public Prosecutions' decision to proceed with the retrial was not an abuse of process.

Orders

Orders of the court

See [41]

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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