R v Garth & Anor [2008] VSCA 252

Mr S Ward, Acting Solicitor for Public Prosecutions

1 This appeal was considered by the Court on 4 December 2008 at which time the appeal was dismissed as incompetent and counsel were informed that reasons would be handed down at a later date. What follows are those reasons.

2 Briefly, the facts of the matter are that on 22 February 2005 the first respondent was presented for trial in the County Court at Melbourne on three counts of rape and in the alternative three counts of sexual penetration of a child under 16 years and one count of an indecent act with the child. After a trial lasting several days, on 28 February 2005 the jury returned verdicts of not guilty on each of the counts of rape but were unable to agree on a verdict on any of the alternative counts of sexual penetration of a child under 16 or the count of indecent act with the child.

3 On 6 August 2007 the first respondent was re-presented for trial in the County Court at Melbourne on a filed over presentment preferring the same three counts of sexual penetration of a child under 16 years and the one count of committing an indecent act with the child. Thereafter, defence counsel moved the court for a permanent stay of the proceeding as an abuse of process and, on 8 August 2007, the County Court judge determined that the proceeding was an abuse of process[1] and ordered that the proceeding be stayed.

4 By Originating Motion dated 5 October 2007, the Crown sought judicial review of the County Court judge's determination and an order in the nature of certiorari to quash the determination. On 20 June 2008, the judge below handed down judgement refusing the application on the basis, as his Honour put it, that 'the second trial of the accused involved an attempt to relitigate an element (sexual penetration) of the rape charges of which he was acquitted'.[2]

5 The first respondent objects that there is no right of appeal to this court from the determination of the judge below.

6 We agree. In our view, the decision of the High Court in Smith v The Queen[3] makes clear that there is no right of appeal[4] to this court from a decision of a judge of the Trial Division to stay or refuse to stay the trial of a criminal proceeding.

7 Section 17(2) of the Supreme Court Act 1986 provides that:

(2) Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge.

But that is subject to s 17A(3), which provides that:

(3) Except as provided in Part VI of the Crimes Act 1958, 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.

8 As s 17A(3)[5] was first interpreted by the Full Court in Boehm v Director of Public Prosecutions,[6] the words 'a determination made in or in relation to a trial or proposed trial' were taken to refer only to a determination of that description from which an appeal lay under Part VI of the Crimes Act 1958. So, since no appeal lay under Part VI of the Crimes Act against a determination of a judge to stay a trial (there being no conviction), it was held that the section did not preclude an appeal against a stay. But in Smith v The Queen,[7] the High Court put paid to that view of the section. The majority stated that the only way to reach the result in Boehm was to read the words in s 17A(3):[8] 'Except as provided in Part VI of the Crimes Act' as meaning 'Where an appeal is provided directly or indirectly by Part VI of the Crimes Act'. And that was impermissible, it was said, because it would amount to an unacceptable degree of reconstruction of the section.[9] Accordingly, it was held, s 17A(3) precludes an appeal from any determination either to grant a stay of a criminal trial or to refuse it.

9 The determination of the judge below was a determination to refuse an order in the nature of prerogative relief, not a determination as such to refuse to stay the second trial. But that makes no difference. As the Full Court held in Boehm:

Section 14(3) [scil. now s 17A(3)] does not distinguish between determinations of a judge made in exercise of different powers...It makes no difference whether the determination made on or in relation to the trial or proposed trial was made upon an application to exercise the inherent power of a trial judge to ensure a fair trial, a power given by the statute, regulation or rules of court, a power of judicial review, the supervisory power of a superior court or any other power.'[10]

10 In the result, it appeared to us to be plain that the appeal was incompetent and should be dismissed.

11 In case we were wrong about that, however, we also considered the merits of the appeal.[11] According to the appellant, it follows from the fact that the jury at the first trial were unable to agree on a verdict on the alternative counts of sexual penetration of a child under 16 years that the jury did not come to a final determination on the question of whether sexual penetration occurred. Thus, according to the appellant, the second trial is in no way an attempt upon the part of the Crown to re-litigate an element of the count of rape of which the first respondent was acquitted.

12 The first respondent ('the respondent') argues to the contrary. In his submission, the critical point about this case is that the only element of the offence of rape which was in issue at the first trial was whether the respondent penetrated the complainant. That was an issue of fact on which the complainant and the respondent both gave evidence. The complainant deposed that the respondent had on two consecutive nights forced her to have sexual intercourse on three separate occasions, and the respondent gave evidence in which he denied that he had ever had intercourse with the complainant. Since the jury acquitted the respondent of the counts of rape, the respondent says that the jury must not have been satisfied to the requisite standard of any of the alleged acts of sexual penetration. Thus, in the respondent's submission, for the Crown to now put up the respondent a second time on counts of sexual penetration would be manifestly inconsistent with the respondent's acquittal on the counts of rape.

13 In our view the appellant is correct. The elements of the offence of rape are not identical to the elements of the offence of sexual penetration of a child under 16 years. In order to establish rape, the Crown had to satisfy the jury not only of penetration but also that there was an absence of consent and that the respondent was aware of the absence of consent or of the possibility of its absence. Consequently, as the judge below observed, this was not a case in which it would have been open to the respondent to plead autrefois acquit.

14 It is true, as the respondent contends, that his only defence at the first trial was to deny penetration. He did not suggest in his evidence, and it was not put to the complainant in cross-examination, that she had consented to sexual intercourse with the respondent or that he was not aware that she may not have been consenting to sexual intercourse with him. There is also no doubt that the principal issue at the trial was whether the respondent had penetrated the complainant. But the fact that the alternative counts of sexual penetration of a child under 16 were left to the jury necessarily dictates that penetration was not the only issue before the jury. Inasmuch as the jury were asked to render a verdict on those counts, the jury had to consider not only penetration but also consent.

15 Furthermore, since the jury acquitted the respondent on the counts of rape, but were unable to reach a verdict on the alternative counts of sexual penetration of a child under 16, it logically follows[12] that at least one juror was satisfied beyond reasonable doubt that the respondent had penetrated the complainant - otherwise the jury would have acquitted the respondent on those counts - and, in turn, it logically follows that at least one juror acquitted the respondent of the counts of rape on a basis other than not being satisfied of penetration.

16 That being so, it cannot be said that the issue of penetration was decided in the respondent's favour at the trial or, therefore, that to put up the respondent again on the counts of sexual penetration of a child under 16 would be to re-litigate an issue which was determined in the respondent's favour at the trial.

17 Counsel for the respondent prayed in aid the High Court's decision in The Queen v Carroll.[13] In that case, the accused had been acquitted on a charge of murder following a trial at which he gave evidence that it was not he who had killed the deceased. It was held that it was an abuse of process for the Crown to present the accused for trial on a charge of having perjured himself by swearing that it was not he who had killed the deceased. The High Court reasoned that it was tantamount to re-litigating the very issue decided in favour of the accused at the murder trial, namely, whether it was he who had killed the deceased.

18 In counsel's submission, the same reasoning applies to this case. To put up the respondent again on the counts of sexual penetration of a child under 16, after the respondent gave evidence at the first trial in which he denied that he had penetrated the complainant, would be to re-litigate the issue which was decided in favour of the respondent at the first trial, namely, whether he penetrated the complainant.

19 The difficulty with that submission, however, is that there is an essential difference between Carroll and this case, in that in Carroll murder was the sole count on the indictment and, in the way in which the trial was conducted, the only issue at trial was whether it was the accused who had killed the deceased. As Gleeson CJ and Hayne J explained:

the factual inquiries made at the two trials, in the end, came to focus upon the same issue - did he kill Deidre Kennedy? The [murder] trial was conducted on the footing that there had been a murder. On his trial for perjury there appears to have been no controversy about the fact that the respondent had sworn that he had not killed Deidre Kennedy; again, the focus of the factual inquiry was, did he kill her?[14]

It was on that basis that it was held that there was 'manifest inconsistency' between prosecuting the accused for perjury for having sworn that he did not kill the deceased and his acquittal on the charge of having killed the deceased.

20 Contrastingly, in this case, the respondent was presented for trial at the first trial on a presentment preferring not only the rape counts but also the alternative counts of sexual penetration of a child under 16. The jury was asked to deliver verdicts not only on the rape counts but also on the alternative counts of sexual penetration of a child under 16. It follows that, at the first trial, both sexual penetration and consent fell for determination. As against that, at the second trial, the only counts on the presentment would have been the counts of sexual penetration of a child under 16. The issue would have been penetration alone. Therefore, there would have been no 'manifest inconsistency' between prosecuting the respondent at the second trial on the counts of sexual penetration of a child under 16 and his acquittal at the first trial on the counts of rape.

21 So to say does not mean that the County Court judge was necessarily wrong to stay the second trial. As Gleeson CJ and Hayne J also observed in Carroll, the power to stay is in some respects discretionary. Although there are clear categories of cases for stay, such as where the double jeopardy principle applies, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It follows that, even though the double jeopardy principle did not apply in this case, it would have been open to the respondent to seek to persuade the County Court judge to stay the second trial in the exercise of discretion. For example, it would have been open to argue that, although there was no manifest inconsistency of the kind described in Carroll, the forensic contest at the first trial was in fact so concentrated on the issue of penetration that it would have been vexatious and oppressive to subject the respondent to a second trial on that issue.

22 We do not suggest that the County Court judge decided the application on that basis. Although there are references to vexation and oppression in his Honour's ruling, he expressly decided the application on the basis of the double jeopardy principle. Nor do we mean to convey that a stay should necessarily have been granted in the exercise of discretion. Indeed, one could not reach a concluded view about that without undertaking the sort of balancing exercise which was countenanced in R v P, NJ[15] and R v P, NJ (No. 2);[16] and it is not the function of this court on this application to carry out that task. We mention the matter now, however, in order to avoid any suggestion that the double jeopardy principle is the only possible basis on which a second or subsequent criminal trial may be stayed as an abuse of process.

23 We also add for completeness that the appellant also contended that the judge was in error in failing to undertake the sort of balancing exercise which was countenanced in R v P, NJ[17] and R v P, NJ (No. 2).[18] We agree in part. It was unnecessary for the purposes of the double jeopardy principle. As the judge below said:

The exercise of discretion to grant a stay for abuse of process involves different considerations when the double jeopardy ground is invoked on the basis that there are common facts and a common element in a first and second trial. In Carroll, Gaudron and Gummow JJ said of the power to stay for abuse of process in the circumstances of that case:

The power to stay is said to be discretionary. In this context, the word 'discretionary' indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not.[19]

But, as already observed, if the judge had gone on to consider the grant of a stay in the exercise of discretion, it would have been necessary to undertake the balancing exercise.

24 For the reasons given, we dismissed the appeal as incompetent.

25 Following the delivering of reasons we heard counsel on the matter of costs and I will ask Nettle JA to deliver the judgment of the Court on the question of costs.

26 Section 24 of the Supreme Court Act 1986 provides that:

(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matter in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

(2) Nothing in this section alters the practice in any criminal proceeding.

27 The proceeding below was a criminal proceeding.[20] The preferable view is, however, that the grant in sub-s 24(1) of power over costs is ample, subject only to sub-s (2), and that sub-s (2) should be taken as doing no more than preserving the 'practice in any criminal proceeding' in the sense that the jurisdiction conferred by sub-s (1) can be exercised only conformably with the practice.

28 In this matter the only practice relied upon by the Crown to resist an order for costs against it is 'the ancient doctrine that in matters at common law the Crown never paid nor received costs'.[21] But as was observed by Phillips JA in Perkins v County Court of Victoria:[22]

There must now be a question in Victoria whether the practice is relevant on an application in this court for judicial review in relation to a criminal trial in the County Court.

29 Further, as his Honour observed, in Wright, Darcy and Currie,[23] where the only question was the power of the court upon an application for judicial review to order costs, costs were ordered against the applicant when judicial review was refused.

30 Similarly in ex parte Dunn; ex parte Aspinall,[24] where certiorari was sought to quash a conviction by a Court of General Sessions for criminal contempt which was held to be beyond power, Cussen J granted costs and noted that there had been other such cases in which costs had been granted. See also the Director of Public Prosecutions v Warburton,[25] where Harper J awarded costs to the Crown on its successful application for judicial review and in R v Bibaoui,[26] where the court made an order for costs against the Crown on an appeal by it against sentence upon the respondent.

31 In my view, there is now no ground for excepting from the operation of sub-s 24(1) of the Supreme Court Act 1986 applications for prerogative relief generally. In other words, I consider that there is no reason in Victoria to suppose that the apparent breadth of s 24(1) of the current Act is qualified in respect of the costs of prerogative relief.

32 It follows, in my view, that it is within the power of this Court to order costs in favour of a successful party upon an application for judicial review of orders made in a criminal proceeding and I consider that in this case it would be appropriate to award costs in favour of the first respondent.

35 On this occasion, we simply make the order that the appellant pay the first respondent's costs of the appeal.

[1] On the basis, his Honour said, that it would impugn the integrity of the verdict of the jury at the first trial.

[2] The Queen v Carroll (2002) 213 CLR 635.

[3] [1994] HCA 60; (1994) 181 CLR 338.

[5] When first introduced into the Act it was numbered 14(3).

[6] [1990] VicRp 43; [1990] VR 494.

[7] [1994] HCA 60; (1994) 181 CLR 338.

[9] [1994] HCA 60; (1994) 181 CLR 338, 346.

[11] In accordance with the High Court's edict Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, 300[105], that a court of criminal appeal should deal with all grounds of appeal, even if it is thought that one of them is determinative.

[12] Assuming that the jury acted rationally.

[14] (2002) 213 CLR 635, 644, emphasis added.

[15] (2006) 174 A Crim R 1.

[16] [2007] SASC 135; (2006) 174 A Crim R 15.

[17] (2006) 174 A Crim R 1.

[18] [2007] SASC 135; (2006) 174 A Crim R 15.

[20] Clarkson v Director of Public Prosecutions [1990] VicRp 65; [1990] VR 745, 747-749.

[21] Cf Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 559 (Dawson J in diss.)

[22] (2002) VR 246, [27].

[23] (1992) 77 A Crim R 67.

[24] [1906] VicLawRp 100; [1906] VLR 584.

[25] [2006] VSC 446.

[26] [1997] 2 VR 600.