Gilbert v Volkers - [2004] QSC 436

SUPREME COURT OF QUEENSLAND

CITATION:

Gilbert v Volkers [2004] QSC 436

PARTIES:

JULIE THERESE GILBERT
(applicant)
v
SCOTT ALEXANDER VOLKERS
(respondent)

FILE NO/S:

SC No 9030 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2004

JUDGE:

Holmes J

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – LEAVE OR DIRECTION OF THE SUPREME COURT TO EXHIBIT CRIMINAL INFORMATION – DISCRETION TO GRANT OR REFUSE – GENERALLY – where the applicant was the complainant in respect of four charges of indecent dealing brought against the respondent – where the respondent was committed to trial on those charges – where the Director of Public Prosecutions found no true bill after examining the evidence and other material provided by the respondent’s solicitors – where the applicant seeks leave under s 686 of the Criminal Code to present an indictment in respect of three of the alleged offences – whether the Court will grant leave under s 686

Criminal Code (Qld), s 686, s 687, s 694
Criminal Code (WA), s 720

Ex parte Marsh [1966] Qd R 357, considered
Gouldham v Sharrett [1966] WAR 129, applied
Hoch v The Queen (1988) 165 CLR 292, cited
M v JMP and RP (1999) 108 A Crim R 129, cited
R v Lewis [1994] 1 Qd R 613, cited
Re Smith [1993] 2 Qd R 218, cited

COUNSEL:

Mr Hanson QC for the applicant
Mr Byrne QC for the applicant, with Ms Brasch, for the respondent

SOLICITORS:

Quinn & Scattini Lawyers for the applicant
Ryan & Bosscher Lawyers for the respondent

Background

The applicant was the complainant in respect of four charges of indecent dealing brought against the respondent, Mr Volkers. He was committed for trial on those and other charges, but the Director of Public Prosecutions, having examined the evidence and other material provided by the respondent’s solicitors, found no true bill. The applicant seeks leave under s 686 of the Criminal Code to present an indictment in respect of three of the alleged offences.

Private prosecution under the Criminal Code

Section 686 is in the following terms:

“Information by leave of the Court by private prosecutors
(1)   Any person may by leave of the Supreme Court present an information against any other person for any indictable offence, alleged to have been committed by such other person.
(2)   An information presented by leave of the Court is to be signed by the person on whose application the leave is granted, or some other person appointed by the Court in that behalf, and filed in the Supreme Court.
(3)   The person who signs the information is called the prosecutor.
(4)   The information is to be intituled ‘The Queen on the prosecution of the prosecutor (naming the person) against the accused person (naming the person)’, and must state that the prosecutor informs the Court by leave of the Court.
(5)   Except as otherwise…

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 Gilbert v Volkers

Details

AGLC: Gilbert v Volkers [2004] QSC 436
Case: [2004] QSC 436
Decision Date: 16 December 2004

CaseChat Overview and Summary

The applicant, Gilbert, sought leave to present an indictment against the respondent, Volkers, for three charges of indecent dealing. Gilbert was the complainant in the charges, which were originally brought against Volkers. After examining the evidence, the Director of Public Prosecutions found no true bill, and as a result, Volkers was committed to trial on the charges. However, Gilbert sought leave under section 686 of the Criminal Code to present an indictment in respect of three of the alleged offences. The court was required to determine whether it would grant leave under section 686 of the Criminal Code to Gilbert to present an indictment in respect of three charges of indecent dealing against Volkers.

The court found that it was not appropriate to grant leave to Gilbert to present an indictment in respect of the three charges of indecent dealing against Volkers. The court considered the relevant legal principles and found that the discretion to grant or refuse leave under section 686 of the Criminal Code is not to be exercised lightly. The court also found that the evidence provided by Gilbert was insufficient to establish a prima facie case against Volkers. As a result, the court dismissed the application.

The court's decision was based on the evidence provided and the relevant legal principles. The court found that the evidence provided by Gilbert was not sufficient to establish a prima facie case against Volkers. The court also found that it was not appropriate to exercise its discretion to grant leave under section 686 of the Criminal Code in this case. The court's decision was based on the evidence and legal principles, and the application was dismissed.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gilbert v Volkers [2004] QSC 436
PARTIES:	JULIE THERESE GILBERT (applicant) v SCOTT ALEXANDER VOLKERS (respondent)
FILE NO/S:	SC No 9030 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2004
JUDGE:	Holmes J
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – LEAVE OR DIRECTION OF THE SUPREME COURT TO EXHIBIT CRIMINAL INFORMATION – DISCRETION TO GRANT OR REFUSE – GENERALLY – where the applicant was the complainant in respect of four charges of indecent dealing brought against the respondent – where the respondent was committed to trial on those charges – where the Director of Public Prosecutions found no true bill after examining the evidence and other material provided by the respondent’s solicitors – where the applicant seeks leave under s 686 of the Criminal Code to present an indictment in respect of three of the alleged offences – whether the Court will grant leave under s 686 Criminal Code (Qld), s 686, s 687, s 694 Criminal Code (WA), s 720 Ex parte Marsh [1966] Qd R 357, considered Gouldham v Sharrett [1966] WAR 129, applied Hoch v The Queen (1988) 165 CLR 292, cited M v JMP and RP (1999) 108 A Crim R 129, cited R v Lewis [1994] 1 Qd R 613, cited Re Smith [1993] 2 Qd R 218, cited
COUNSEL:	Mr Hanson QC for the applicant Mr Byrne QC for the applicant, with Ms Brasch, for the respondent
SOLICITORS:	Quinn & Scattini Lawyers for the applicant Ryan & Bosscher Lawyers for the respondent