R v Azad & Anor [2007] VSC 115

(1) concluding that on the available evidence the prosecution:

"Will not be able to prove beyond reasonable doubt that the physical act that the accused intended to procure as a result of his threats was that of sexual penetration."

and as a result the proceedings were an abuse of process;

(2) in inferring that the demands made by the accused could not be interpreted by a jury acting reasonably as involving a demand for sexual penetration; and

(3) in determining that the proceedings were an abuse of process.

6 For the purpose of this application it was agreed that the record involved: the transcript of proceedings in the County Court, her Honour's decision and her reasons, and the affidavit of Miss Karamitos which included the Crown opening. Mr Johns submitted that the depositions did not form part of the record as they were not referred to over and above the statement of the complainant and the passage from the committal that related to the very conversations. He took particular issue with parts of the record of interview which were here sought to be relied upon but were not canvassed in the lower Court.

7 Mr Trapnel submitted that the record for these purposes is the presentment, her Honour's order and her Honour's reasons for her decision. Mr Trapnel also submitted that whilst this Court must determine whether in making her decision her Honour made an error on the face of the record; regard should be had to the depositions which were available to her Honour for the purposes of determining if there was an error of law on the face of the record. He submitted that the Court should not be confined to the record for the purposes of determining whether there is an error of law but the error of law must be on the face of the record. I propose to proceed on the basis that the record for the purposes of determining whether there is an error is constituted by the documents agreed between the parties but does not include the first named defendant's record of interview. I have had recourse to the decision of Gillard J in Matson v The Racing Appeals Tribunal [2001] VSC 264 where it was stated that a strict approach is taken as to what constitutes the record and a record may be expanded to include the transcript of proceedings if, in fact, it was incorporated into the record by reference to it. In this case no reference to the first named defendant's answers in the record of interview was made in Her Honour's reasons for decision and for that reason I do not propose to have regard to it as part of the record.

8 The Crown case is that the complainant engaged in sexual activity with her boyfriend Damir Rizvic who was a friend of the firstnamed defendant. This took place in a bedroom at the house where the firstnamed defendant was living and the activity, despite Rizvic's assurances to the contrary, was videotaped. Two weeks after this, the firstnamed defendant rang the complainant and during the telephone call played the tape which was both audio and visual. The complainant recognised the sounds of she and Rizvic engaged in sexual activity and, indeed, the firstnamed defendant told her that he was playing the tape. The firstnamed defendant told the complainant that she "had a nice body and looked good" and he said to her: "If you really want the tape you will have to come over and have sex with me or at least kiss me." This forms the subject of Count 1 on the presentment.

9 The following night, the firstnamed defendant made another telephone call to the complainant and said that if she wanted the tape she would have to give him a kiss. The complainant again asked the firstnamed defendant for the tape and he replied in the negative. This conduct is not the subject of a count but is evidence admissible on the trial.

10 The firstnamed defendant telephoned the complainant the next night and the complainant said in her statement: "The same thing happened again. I was being nice, trying to convince him to say he would give me the tape but he still refused." At the committal the complainant expanded on this conversation stating that on the third time the firstnamed defendant said: "If I didn't do either of those things he'd show everybody at school. The guys that I was friends with and Damir's friends that what is on the tape that he'd let them --- watch it". This conduct forms the subject of Count 2 on the presentment.

11 It was common ground that the video is 17 minutes in duration and depicts graphic and explicit sexual activity. It is not disputed that at the time the complainant was aged 14 and the firstnamed defendant was aged 18.

12 Counsel for the firstnamed defendant, Mr Johns who was also counsel at the trial, submitted that as the threats relied upon by the Crown was made in the alternative, being "for sex or at least a kiss", the counts were therefore doomed to failure because the Crown must prove that the firstnamed defendant intended that sexual penetration take place because of his threats and his threats alone. Her Honour accepted this submission and in her ruling stated:

"The Crown will not be able to prove beyond reasonable doubt that the physical act that the accused intended to procure as a result of his threats was that of sexual penetration. The accused told the complainant that she could have the tape back if she kissed him. In offering a choice it is a reasonable hypothesis that the accused intended to give the tape to the complainant if she kissed him."

Her Honour held that the circumstances of the case are exceptional

"precisely because of the unequivocal account given by the complainant in her statement to the police and the committal hearing that the threat made to her by the accused that she would have the tape back if she had sex with him or gave him a kiss. This alternative is significant."

13 Mr Johns made the same submission before this Court contending that it was open to her Honour to find that it was "beyond argument" that Counts 1 and 2 on the presentment must fail and thus no error of law can be shown on the record.

14 Mr Trapnel, counsel for the plaintiff, submitted that the evidence was such that there were reasonable prospects of obtaining convictions in respect of Counts 1 and 2 and it could not be said that the Crown case was foredoomed to failure. In this context, he submitted, regard should be had to the decision of the Magistrate to commit the firstnamed defendant to stand trial, on the same evidence as was before the Learned Judge, and a Crown Prosector had signed the presentment. Mr Trapnel further submitted that her Honour in determining that the Crown could not exclude a reasonable hypothesis consistent with innocence and therefore the Counts on the presentment should be stayed, applied the wrong test.

15 Section 57(1) of the Crimes Act provides that a person must not by threats or intimidation procure a person to take part in an act of sexual penetration. Section 321M of the Crimes Act provides that a person who attempts to commit an indictable offence is guilty of the indictable offence of attempting to commit that offence.

16 Thus, for the firstnamed defendant to be found guilty the Crown must prove beyond reasonable doubt that he:

(a) attempted;

(b) by threats or intimidation;

(c) to procure;

(d) a person to take part in an act of penetration; and

(e) that he did so with the intention that the threats or intimidation would have that result.

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.

[1] (1993) 177 CLR 378

[2] [1995] VicRp 2; [1995] 1 VR 10