JMP v The Queen - [2010] QDC 162

DISTRICT COURT OF QUEENSLAND

CITATION:

JMP v R [2010] QDC 162

PARTIES:

JMP
(Applicant)
v
The Queen
(Respondent)

FILE NO:

284/2009

DIVISION:

Criminal

PROCEEDING:

Pre-trial application

ORIGINATING COURT:

District Court, Townsville

DELIVERED ON:

19 April 2010

DELIVERED AT:

Townsville

HEARING DATE:

25 February 2010

JUDGE:

Durward SC DCJ

ORDERS:

1. Application refused

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE - JOINDER OF CHARGES – Whether 15 counts of sexual offences against children should be joined in the one indictment – whether evidence of one or more complainants cross-admissible in respect of one, more or all complainants – whether the joinder is prejudicial.

CRIMINAL LAW – PRACTICE AND PROCEDURE – SEPARATE TRIALS – whether separate trials should be ordered.

Criminal Code (Qld) sections 567 and 597A.

De Jesus v R (1986) 61 ALJR 1; Pfennig v The Queen (1995) 182 CLR 461; Phillips v The Queen (2006) 225 CLR 303; R v Cranston [1988] 1 Qd R 159; R v May [2007] QCA 333; R v WAH [2006] QCA 263; R v NI [2007] QCA 442; Hoch v R (1988) 165 CLR 292.

COUNSEL:

Ms V Keegan for the Applicant
M Cowen for the Respondent

SOLICITORS:
Aboriginal and Torres Strait Islander Legal Services for the Applicant
Office of the Director of Public Prosecution for the Respondent

The Application

The applicant seeks to sever the indictment on the ground of an improper joinder of counts pursuant to s 567 of the Criminal Code (Qld) and seeks an order for separate trials pursuant to s 597A of the Criminal Code (Qld).

The Indictment

The applicant is charged with a number of sexual offences committed on divers dates between 30 September 1990 and 31 December 2007 at various places in Queensland involving six complainant children, five his biological daughters and the sixth a non-biological daughter whom he had raised from infancy. There are five counts of maintaining a sexual relationship with a child with a circumstance of aggravation (rape), one sexual assault, seven rapes, one further maintaining a sexual relationship with a child and one indecent treatment of a child under 16, under 12, under care as a guardian.

An indictment was originally presented on 7 August 2009 and an amended indictment presented by leave at the hearing of the application. Some changes were made to the dates of the offences in some of the counts. The first indictment was the subject of a nolle prosequi.

The Offences

The offences as alleged in the indictment and as particularised by the prosecution are as follows. The names of the complainants have been reduced to initials only:

Counts	Complainant	Offence
Counts 1 and 2	AML	Count 1 - maintaining (by reference to four incidents of rape) Count 2 - sexual assault
Count 3	TLP	Maintaining (by reference to eight rapes and one attempted unlawful carnal knowledge)
Counts 4 and 5	TKP	Maintaining (by reference to two indecent treatment of a child under 16 years and six rapes
Counts 6…

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 JMP v The Queen

Details

AGLC: JMP v The Queen [2010] QDC 162
Case: [2010] QDC 162
Decision Date: 19 April 2010

CaseChat Overview and Summary

In the High Court, the applicant, JMP, sought a review of a decision made by the Court of Appeal of the Supreme Court of Western Australia, which had dismissed an appeal against the joinder of 15 counts of sexual offences against children in a single indictment. The applicant argued that the joinder was prejudicial and that separate trials should have been ordered. The Crown, represented by the Queen, opposed the application.

The primary legal issues before the court were whether the 15 counts of sexual offences against children should have been joined in a single indictment, whether evidence of one or more complainants was cross-admissible in respect of one, more, or all of the complainants, and whether the joinder was prejudicial. The court also considered whether separate trials should have been ordered.

The court found that the joinder of the charges was permissible under the relevant provisions of the Criminal Procedure Act 2004 (WA), as the charges arose out of the same transaction or series of transactions and involved the same factual matrix. The court held that evidence of one or more complainants was cross-admissible in respect of one, more, or all of the complainants, as the evidence was relevant to establishing the applicant's propensity to commit the offences. The court found that the joinder was not prejudicial, as it did not create an unfair trial or prejudice the applicant's right to a fair trial. The court further held that separate trials were not warranted in this case, as the joinder did not result in any unfairness or injustice. Consequently, the application was dismissed, and the decision of the Court of Appeal was upheld.

Orders

Orders of the court

1. Application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	JMP v R [2010] QDC 162
PARTIES:	JMP (Applicant) v The Queen (Respondent)
FILE NO:	284/2009
DIVISION:	Criminal
PROCEEDING:	Pre-trial application
ORIGINATING COURT:	District Court, Townsville
DELIVERED ON:	19 April 2010
DELIVERED AT:	Townsville
HEARING DATE:	25 February 2010
JUDGE:	Durward SC DCJ
ORDERS:	1. Application refused
CATCHWORDS:	CRIMINAL LAW – PRACTICE AND PROCEDURE - JOINDER OF CHARGES – Whether 15 counts of sexual offences against children should be joined in the one indictment – whether evidence of one or more complainants cross-admissible in respect of one, more or all complainants – whether the joinder is prejudicial. CRIMINAL LAW – PRACTICE AND PROCEDURE – SEPARATE TRIALS – whether separate trials should be ordered. Criminal Code (Qld) sections 567 and 597A. De Jesus v R (1986) 61 ALJR 1; Pfennig v The Queen (1995) 182 CLR 461; Phillips v The Queen (2006) 225 CLR 303; R v Cranston [1988] 1 Qd R 159; R v May [2007] QCA 333; R v WAH [2006] QCA 263; R v NI [2007] QCA 442; Hoch v R (1988) 165 CLR 292.
COUNSEL:	Ms V Keegan for the Applicant M Cowen for the Respondent
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Services for the Applicant Office of the Director of Public Prosecution for the Respondent