17 The Crown must prove the firstnamed defendant's intention at the time he committed the act or acts which are said to constitute the attempt. Thus, because the offence is one of attempt, the Crown must prove the intention to commit the substantive offence which is here to procure by threats of intimidation a person to take part in an act of penetration.
18 The threats or intimidation relied upon by the Crown is the withholding of the tape despite the repeated request for its return and the threat to show it to others.
19 In order for the firstnamed defendant to be found guilty the Crown must satisfy the jury beyond reasonable doubt of the requisite intent. The Crown case on the question of intention was not simply and solely based on the firstnamed defendant's express words. Indeed, the Crown would invite the jury to infer the firstnamed defendant's intention at the time he said those words, not only from what he said but also from the facts and circumstances as the jury found them to be and these include, but are not limited to, the fact of the making of three successive telephone calls to the complainant, each of which related to the tape, the playing of the tape during the first call, the comments about the complainant's body. In those circumstances the Crown would be entitled to invite the jury to reject the firstnamed defendant's statement that he wanted a kiss and the jury would be entitled to infer that the firstnamed defendant's intention at the time of making the calls was that he intended to procure the complainant to take part in an act of sexual penetration despite the reference to a kiss.
20 In those circumstances it cannot be said that the prosecution was " clearly foredoomed to fail" or that it was "plain beyond argument" that the prosecution would fail as the authorities posit the test (Walton v Gardiner[1] and the Queen v Smith[2]). In the Queen v Smith Justice Byrne held that the power to order a stay in criminal proceedings should be limited to the case where it is plain beyond argument that the prosecution suffers from some incurable vice. Such vice must be readily apparent and clearly fatal to the prospect of success to the prosecution. His Honour went on to say " I cannot readily imagine that such a vice could arise out of some insufficiency of evidence relied on by the Crown unless a matter such as incurable absence of admissible evidence on some essential element." That cannot be said to be the case here. Here there is ample evidence which could go before a jury from which the jury would be asked to draw an inference as to the firstnamed defendant's state of mind.
21 The issue of the firstnamed defendant's intention is quintessentially a jury question and whether the Crown can exclude an hypothesis consistent with innocence is entirely a matter for the jury. That her Honour came to the view that the Crown could not exclude such a hypothesis is not to the point and in coming to that view, her Honour appears not to have applied the appropriate test for the grant of a stay. Where it is a matter of what inferences can be drawn from established facts the issue of competing hypothesis is entirely a matter for the jury and, as Justice Byrne stated in Smith, where the prosecution depends upon inference which the jury will be asked to draw from constituent facts the test would, as a minimum, prevent the judge from ordering a stay on the ground that the given inference was not open so long as there was evidence which had been treated as admitted as tending to support those inferences.
22 Accordingly in applying the test, as expounded in the Queen v Smith, as there is here evidence from which the jury could be asked to infer the firstnamed defendant's intention and if it be a matter of competing inferences then that is a matter entirely for the jury and does not amount to an incurable vice in the prosecution case and because it is a matter of competing inferences it cannot be said that it is "plain beyond argument" that the Crown case will fail or in the words of Walton v Gardiner "that it is clearly foredoomed to fail."
23 The authorities make it clear that it is only in exceptional cases where there is an incurable vice in the evidence such that an element of the offence cannot be made out that a stay will be granted. There was here no defect in the evidence which would justify a stay. Indeed, the evidence has been deemed sufficient to warrant the committal of the firstnamed defendant to the trial and has been subjected to the scrutiny of a Crown Prosecutor who has signed the presentment. Nor could it be said, as her Honour did here, that this was an exceptional case by reason of the complainant's unequivocal account given to the police in her statement or at the committal hearing that the threat made to her by the firstnamed defendant was stated to be in the alternative. What was intended by those express words is a matter for the jury. In my view this is not an exceptional case in the terms in which the authorities contemplate.
24 I have to come to the view that in making the determination that the Crown case was foredoomed to fail and ordering a stay on Counts 1 and 2 on the presentment her Honour was in error because such a finding on the material before her was not open as a matter of law. Accordingly I propose to grant the application and quash her Honour's order staying Counts 1 and 2 on Presentment number S00199207 and I remit the case to the secondnamed defendant for trial according to law.