R v Warburton
[2006] VSC 446
•10 November 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7304 of 2006
| THE QUEEN | Plaintiff |
| v | |
| ROBERT JAMES WARBURTON & ANOR | Defendants |
---
JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 NOVEMBER 2006 | |
DATE OF JUDGMENT: | 10 NOVEMBER 2006 | |
CASE MAY BE CITED AS: | THE QUEEN V WARBURTON | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 446 | |
---
JUDICIAL REVIEW – County Court - Permanent stay of counts on a presentment ordered by the trial judge – Counts of rape and procuring acts of sexual penetration by threats or intimidation – Whether counts true alternatives – Whether an error of law – Crimes Act 1958, ss.38 and 57(1).
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr O.P. Holdenson QC with Mr R. M. Niall | Angela Cannon, Solicitor for Public Prosecutions |
| For the First Defendant | Mr G. Nash QC with | Dowling McGregor Thomas |
| No appearance for Second Defendant |
HIS HONOUR:
This is the return of an originating motion filed on 3 July 2006. The plaintiff, the Crown in right of the State of Victoria, seeks an order in the nature of certiorari or mandamus bringing up to this Court 14 counts to which, on a presentment made returnable in the County Court at Melbourne in a trial that began on 24 April 2006, the first defendant pleaded not guilty. Those counts, according to the claim for relief as set out in the originating motion, were the subject of orders made by the County Court judge on 2 May 2006, before the jury was empanelled. His Honour then ordered that the 14 counts in question be permanently stayed. By ordering that stay his Honour, according to the Crown, committed an error of law - which error appears on the face of the record. The Crown now accordingly asks me, as a judge of the Trial Division of this Court, to remit the matter to the Country Court to be dealt with in accordance with law.
The first count on the presentment alleges that the first defendant, at Forest Hill, between 1 August 2001 and 4 September that year, committed an act of vaginal rape on the complainant: s.38, Crimes Act 1958. The second count alleges, in effect, that in the same incident the first defendant, by threats or intimidation, procured the complainant to take part in an act of sexual penetration with himself: s.57(1), Crimes Act.
The following ten counts mirror the first two. In each case, a count of rape (successively, anal and oral) is followed by a count alleging that the first defendant procured the complainant by threats or intimidation to take part in an act of sexual penetration with him. In each case, the Crown intended to rely, in relation to the latter count, on the same facts as established (according to the Crown’s contention) the immediately preceding count of rape.
Counts 13 and 14 break the pattern established by the first 12, in that they are not accompanied by a corresponding count of rape. Count 13 is (and I paraphrase) that the first defendant at Melbourne, between 1 August 2001 and 30 November 2002, on an occasion other than those referred to in Counts 2, 4, 6, 8, 10 and 12, by threats or intimidation procured the complainant to take part in an act of sexual penetration. Count 14 is in the same terms as Count 13, save that it adds a reference to the latter count in its list of references to occasions “other than those referred to in [the earlier counts]”.
By a document dated 1 January 2006, the prosecution provided to the first defendant a set of "particulars relating to threats made as alleged on the draft presentment" – which, as it now appears, is exactly reproduced in the presentment in its final form. The particulars allege that the complainant and the first defendant were in a relationship between February 2001 and July that year. During this time, they had consensual sexual intercourse. As a result, the complainant became pregnant. In August 2001, she had an abortion. The subsequent advice of her medical practitioners was that she should not engage in sexual intercourse for at least the following two weeks.
As I understand it, the complainant asserts that this meant nothing to the accused. Two days after the abortion, he (as it is alleged) threatened the complainant that he would reveal the fact of the abortion to her parents unless she had sex with him. As a result of this threat, she submitted to his demand.
Over the next 15 months (again, according to my understanding of the Crown case) the first defendant performed other sexual acts with the complainant, all of which (for the purposes of the first 12 counts) involved penetration of her under the threat that, if she refused him, he would tell her mother about the abortion. The particulars of the 13th and 14th counts allege that, again induced by the same threat, she complied with his demand that she sexually penetrate him with her finger: hence the lack of any corresponding counts of rape in relation to Counts 13 and 14.
The judge held that, as framed, the presentment was in these circumstances duplicitous, because the six counts of rape were not true alternative to the counts of procuring, by threats or intimidation, an act of sexual penetration. Accordingly, he ruled, on 1 May 2006, "that if the sexual matters are to proceed, the Crown must elect as to which charge it is proposed to proceed upon, either this count of rape or the s.57(1) offence." His Honour made no special reference here to Counts 13 and 14 but, as the first defendant submitted before me, their severance was - as a matter of practicality - inappropriate. To quote from paragraph 7 of the amended outline of the first defendant's submissions:
"The order staying the proceeding in respect of Counts 1-12, was not intended by the learned trial judge to be a final disposition of the allegations forming the basis of those acts. It was always anticipated by both parties and the learned trial judge that the allegations forming the basis of Counts 1-12 would ultimately be presented at a trial. Had the learned trial judge not stayed Counts 13 and 14 it was open to the Crown to proceed on those counts."
The Crown declined to make the election which his Honour had sought. The judge then gave the following ruling:
"Mr Slim, who appears for the prosecution, having indicated that my ruling is not accepted, it seems to me that I am left with two alternatives. One is to quash the counts which I think are inappropriately pleaded. These are the s.57(1) offences. If I do that, that in the circumstances may cause some embarrassment to the Crown and it may have the effect, if my ruling is wrong, of denying the Crown the opportunity to pursue those charges.
It seems to me that this is a matter that must be authoritatively settled, … the terminology [threats or intimidation] are clearly ingredients of the allegedly alternative sexual charges and also ingredient elements in the crime of rape.
For that reason I felt that … this was a case where circumstances … dictated the decision that I made. The step of staying a proceeding on the authorities is only to be taken in exceptional circumstances but in this case where in my opinion the Crown is persisting to proceed with sexual offences which are in fact duplicates, not true alternatives, I think the appropriate course is to stay so much of the presentment as relates to the sexual offences. Accordingly, that is the order I shall make. In that event the Crown is in a position to challenge this ruling and get an authoritative statement on the issues that arise in this case. Accordingly I order that Counts 1-14 inclusive be permanently stayed." [1]
[1]T. 293-294
It was as a result of this ruling that the originating motion presently before me was issued. The first question is the basis upon which it comes to the Trial Division of this Court. Neither the plaintiff nor the first defendant argued that the appropriate course was an appeal to the Court of Appeal. Indeed, the first defendant’s position was that the matter ought simply to have proceeded to trial in the County Court, with the Crown being required to elect as between rape and the s.57(1) counts. He points to the general reluctance of the courts to fragment criminal proceedings, a reluctance reflected in s.17A(3) of the Supreme Court Act 1958 - which so far as is presently relevant states that, except as provided in Part VI of the Crimes Act, an appeal does not lie from a determination of the Trial Division constituted by a judge made on or in relation to the trial or proposed trial of a person on indictment or presentment.
The first defendant submits that this provision applies to a determination not only of a judge of the Trial Division of this Court, but also of a judge of the County Court. This follows, it is submitted, because it is the intention of the legislature that the latter, when exercising jurisdiction in relation to the trial of an indictable offence, have the same powers - and be subject only to the same controls - as a judge of the Supreme Court exercising like jurisdiction. Not only (the submission continues) is this consistent with the Crimes Act in general, but it is specifically required by s.36 A(2) of the County Court Act. That sub-section provides that, subject to s.36A(1), the County Court shall have jurisdiction and powers with respect to indictable offences as fully and as amply as the Supreme Court; and the general principles of practice and procedure observed in the latter court with respect to indictable offences shall be adopted and applied in the County Court.
The first defendant therefore submits that, if an appeal does not lie from a determination of the Trial Division constituted by a judge made on or in relation to the trial or proposed trial of a person on indictment or presentment, then neither does it lie from a determination of a judge of the County Court.
The difficulty with this argument is that s.17A(3) is in the Supreme Court Act, whereas the County Court Act contains no equivalent. Moreover, the section refers to appeals; and the proceeding before me is an application for the exercise by this court of its supervisory jurisdiction which exists independently of the appeal process. Indeed, it forms part of the original jurisdiction of the Court.
The first defendant also relies upon s.455(1) of the Crimes Act. That section forbids the removal into the Supreme Court by writ of certiorari of any presentment or indictment in the County Court. In this case, however, the plaintiff does not seek such removal; it contends that the presentment is in proper form. Moreover, s.455 was enacted before the commencement of the Administrative Law Act 1978; and by s.12 of the latter Act, any proceeding may be removed into the Supreme Court notwithstanding any provision to the contrary in an Act passed before such commencement.
There are many examples of removal of the kind that, as the first defendant contends, may not be effected here. I need mention only Director of Public Prosecutions v. His Honour Judge G. D. Lewis [1997] 1 VR 391; Director of Public Prosecutions v. The County Court [1997] ACR 270; Atlas v. The Director of Public Prosecutions [2001] 3 VR 211; and R v. The County Court & Raby (unreported) [2003] VSC 213.
For these reasons I have in my opinion jurisdiction to hear and determine the originating motion presently before me.
The substantive issue must also, it seems to me, be resolved in favour of the plaintiff. It is an element of each of the counts of rape that the first defendant was aware that the complainant was not, or might not be, consenting to the penetration, or to the continuation of the penetration. It is not an element of any of the counts of procuring sexual penetration by threats or intimidation that the first defendant was aware of the absence, or possible absence, of consent (which of course means the absence of free agreement). I note in this context that, during argument in the County Court, his Honour spoke of consent - but consent is not free agreement if it is induced by threats.
It follows that, in theory at least, the jury might acquit an accused of a count of rape on the ground that they were not satisfied beyond reasonable doubt that he was aware that the complainant was not, or might not be, consenting; and then convict on the count of procuring sexual penetration by threats because they were satisfied beyond reasonable doubt that he intentionally threatened or intimidated the complainant, and thereby procured her to take part in an act of sexual penetration. Such a conviction would not be bad merely because the Crown had failed to prove that, at the time of penetration and while it continued, the accused was aware that the complainant was not, or might not be, consenting.
Of course, if threats or intimidation have been employed and sexual penetration follows, the accused would in most cases be aware of the complainant’s want of free agreement: but neither in fact nor in legal theory is that inevitably so. It is therefore proper to conclude that a count based upon s.57(1) of the Crimes Act is an alternative to a count based upon s.38 of that Act. The distinction lies in the necessity to prove, in the one case, that the accused was aware that the complainant was not or might not be consenting; and, in the other, the complete absence of that necessity. It is true that care would be needed in making the distinction clear to the jury. On the other hand, a clear direction ought not to be insuperably difficult; and I reject the submission that, where a verdict of acquittal on a count of rape was followed by a verdict of guilty on the corresponding count of procuring, the latter would necessarily be unacceptable because dangerous.
I also reject the first defendant's submission that the danger of a compromise verdict would necessarily be so high that that in itself justified the present stay. The trial judge must be the ultimate arbiter on these points; but it is I think unduly dismissive of the intelligence and integrity of juries to suggest that they are necessarily incapable of properly acting upon a direction that they must not base a verdict of guilty of a lesser, alternative, charge on a desire to effect a compromise.
I accept that I have a discretion whether or not to grant relief in the nature of certiorari or mandamus. In my opinion the discretion should in this case be exercised in favour of granting the plaintiff the relief which it seeks, or relief of that kind. In my opinion, his Honour was wrong to conclude that the relevant counts in this case were essentially the same. It seems to me that they are true alternatives. If I am right, his Honour has acted upon a wrong principle. In any event, his was not a discretionary decision; and House v. The King (1936) 55 CLR 499 is, therefore, inapplicable. In these circumstances it seems to me that I ought to grant the relief sought in the originating motion. I will do so in the terms set out at paragraph 33 of the supplementary outlines of submissions on behalf of the plaintiff.
---
2
0