R v Warburton - [2006] VSC 446

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

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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

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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).

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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 Mr J. Lavery	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…

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 Warburton

Details

AGLC: R v Warburton [2006] VSC 446
Case: [2006] VSC 446
Decision Date: 10 November 2006

CaseChat Overview and Summary

The matter before the County Court involved a judicial review application by the defendant in a criminal case. The defendant, Mr Warburton, sought a permanent stay of certain counts on a presentment, which related to charges of rape and procuring acts of sexual penetration by threats or intimidation. The court was required to determine whether these counts constituted true alternatives under the Crimes Act 1958, and if the trial judge's decision to order a stay constituted an error of law.

The court examined the legal principles underpinning the concept of true alternatives and whether the counts in question satisfied the criteria set out in sections 38 and 57(1) of the Crimes Act 1958. The central issue was whether the acts of rape and procuring acts of sexual penetration by threats or intimidation were sufficiently distinct to warrant separate counts or whether they were so closely related as to constitute the same offence. The court needed to determine whether the trial judge correctly exercised his discretion to order a stay of the counts.

In its reasoning, the court held that the acts of rape and procuring acts of sexual penetration by threats or intimidation were indeed sufficiently distinct to be considered true alternatives. The court found that the trial judge had correctly identified the separate elements of the offences and had exercised his discretion appropriately in ordering a permanent stay of the counts. Consequently, the court dismissed the defendant's application for judicial review.

The court's decision affirmed the trial judge's exercise of discretion and upheld the stay of the counts on the presentment. The court found no error of law in the trial judge's decision and consequently dismissed the application for judicial review. This outcome ensures that the defendant faces a clear and legally sound set of charges, while also respecting the principles of judicial discretion in the handling of criminal proceedings.

Orders