R v Sutton (No 5)
[2020] ACTSC 206
•3 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sutton (No 5) |
Citation: | [2020] ACTSC 206 |
Hearing Date: | 30 June and 3 August 2020 |
DecisionDate: | 3 August 2020 |
Before: | Robinson AJ |
Decision: | Application dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application in proceeding – Latent duplicity in counts of indictment |
Parties: | The Queen (Crown) Patrick Sutton (Accused) |
Representation: | Counsel S Janackovic (Crown) H Selby (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) N/A (Accused) | |
File Number: | SCC 120 of 2019 |
ROBINSON AJ
Background
Between 3 December 2019 and 10 December 2019, the accused was tried before Elkaim J and a jury on eight counts in an indictment that charged him with sexual offences against the one complainant. Those sexual offences took place on three occasions.
The jury deliberated for some days and returned verdicts of not guilty in relation to three of the eight counts. The jury was unable to reach a unanimous verdict in relation to the remaining counts. Elkaim J subsequently discharged the jury.
On 5 February 2020, the Director of Public Prosecutions filed a fresh indictment dated 3 February 2020 containing the five counts on which the jury had been unable to agree.
In response to the filing of this further indictment, the accused filed an Application in Proceeding. He sought an order that the arraignment and fixing of a new date for the retrial be stayed pending receipt by the Director of Public Prosecutions of advice from an independent, appropriately qualified source that such retrial is justified on the basis of an examination of the previous trial.
That application was heard by Crowe AJ and dismissed on 1 May 2020.
Current Application
On 15 May 2020, the accused made a further Application in Proceeding. He claimed an order that Counts 1, 2 and 3 of the indictment dated 3 February 2020 be permanently stayed. The grounds of the application were stated to be “That the counts as presently set forth and particularised offend by way of latent duplicity that cannot be cured”.
Counts 1, 2 and 3 of the indictment are expressed as follows:
The Director of Public Prosecutions, who prosecutes in this behalf … informs the court and charges that on a day unknown between 1 January 2017 and 31 December 2017 at Canberra … [the accused] engaged in sexual intercourse with [the complainant] without her consent, being reckless as to whether she was consenting.
And further that on a day unknown between 1 July 2017 and 1 January 2019 at Canberra [the accused] engaged in sexual intercourse with [the complainant] without her consent, being reckless as to whether she was consenting.
And further that on a day unknown between 1 July 2017 and 1 January 2019 at Canberra [the accused] engaged in sexual intercourse with [the complainant] without her consent, being reckless as to whether she was consenting.
As can be seen, the occasion of the offending is not within a narrow temporal description.
The particular identification of the date and place of the offence is an aspect of a fair trial over which the court has jurisdiction. There is a well-developed jurisprudence attached to it. What is required in this case, however, is that the accused knows the particular occasion on which he is alleged to have offended. Obviously, this can be done by the provision of the best possible date range but together with other acts, facts and circumstances that allow for the specification of the occasion by other than solely temporal means.
As it happened, the accused gave evidence at the trial before Elkaim J. The accused’s evidence was to the effect that on no occasion did he have sexual intercourse with the complainant while she was asleep. Even though the accused has taken this stance at a previous trial, it does not mean that the Crown does not have to specify the occasion on which the Crown relies. For example, in a given case, a precise occasion may allow the accused to rely upon alibi evidence, which could be called as to the precise occasion. The same evidence may have no probative value if directed to a date range as per Counts 2 and 3 above. The accused will, in general, be put in a position of procedural disadvantage without specification of the occasion of the offence.
The Crown case now comprises an indictment of five counts. Those counts arise out of incidents occurring on three separate occasions. The last of those three occasions was the subject of Counts 4 and 5 of the indictment and the Crown has been able to specify that those allegations occurred on 15 or 16 March 2019. There is no dispute between the parties regarding this last occasion.
After having heard the parties on 30 June 2020, I made orders to the effect that the Crown send a letter to the defence specifying by date, act, fact or circumstance each of the two occasions remaining in question with the accused to respond by letter setting out any difficulties with the specification.
At the resumed hearing on 3 August 2020, I was informed that the parties had now resolved their dispute.
Order
I otherwise dismiss the application.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: |
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