Lovely v Attorney-General of Queensland

[2000] QCA 25

[LOVELY v ATTORNEY-GENERAL OF QUEENSLAND]

[2000] QCA 25

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
PINCUS JA

CA No 265 of 1999

THE QUEEN

v.

PETER RODNEY LOVELY  Respondent

ATTORNEY-GENERAL OF QUEENSLAND  Appellant

BRISBANE

..DATE 11/02/2000

JUDGMENT

THE CHIEF JUSTICE:  The Honourable the Attorney-General appeals against an order staying a count of unlawful and indecent dealing with a girl under the age of 16 years.  The complainant's account put before the District Court involved the accused having taken her in a car to a remote location, providing her with alcohol which she consumed and suggesting sexual conduct.  She moved to the rear of the car.  They were naked.  He committed an act of oral sex upon her lasting "a long time" then he had sexual intercourse with her.  The police charged the respondent with rape and he was committed on that basis.

With the involvement of the Director of Public Prosecutions, however, an indictment was presented charging only the indecent dealing.  Rape was unsustainable on the complainant's account and unlawful carnal knowledge was out of time.  Defence counsel submitted to her Honour that the proceedings on this count should be stayed.  Her Honour agreed apparently on the basis that it would be difficult to separate out the act of oral sex from the subsequent intercourse.  Describing it as a close call her Honour saw the prospect of an unfair trial.

Faced with this ruling from her Honour the Crown re-agitated the matter undertaking not to lead evidence of the intercourse pointing out that the complainant by the time of the trial was a mature age woman in her 30s.  The Judge was not dissuaded, however, and held to her ruling. 

Some old cases were cited to her in the course of argument supporting a need to stay such charges where the act of indecent dealing could not realistically be separated from the act of intercourse.  Examples were R v. Fehring (1926) 20 Queensland Justices of the Peace Reports 165 and
R v. Brombey (1952) Queensland Weekly Notes 32. One should not stay a charge on modern authorities unless in exceptional cases, an example being where any trial would be unfair (see Johansen & Chambers (1996) 87 A Crim R 126).

This was a case where the evidence establishing the indecent dealing could have been led without the need to go into the intercourse.  It could be separated out if that be relevant.  The former might have been preparatory to the latter as was urged before her Honour but the complainant's statement suggests that it could nonetheless have been presented as a sufficiently discrete event.  I respectfully suggest that the learned Judge erred in concluding as she appears to have done that a fair trial was not possible.

The indecent dealing arising as an alleged offence on the complainant's statement and separable as I have suggested it is, it is difficult to understand why the respondent should have been relieved of the need to meet this charge because he went on to commit the intercourse.  The count should not, in my opinion, have been stayed. 

I should say that the respondent was tried on a separate count and convicted and has served a term of imprisonment.  That may affect whether a trial on count 2 now actually proceeds.  But the Crown is entitled to pursue count 2 if it is so minded.  The further prosecution of that count should be left for consideration by the Director of Public Prosecutions. 

I would allow the appeal, set aside the order staying the proceedings on count 2 and adjourn the trial on that count to a date to be fixed enlarging the notices to the Crown witnesses as necessary. 

We were asked by Mr Rafter to grant his client a certificate under the Appeal Costs Fund Act. Assuming for the present there being a discretion to do so, these being criminal proceedings of a particular character, I would not in this case, I am afraid, exercise the discretion in favour of the grant of a certificate because of the role taken by counsel for the respondent before her Honour in urging the course which she followed on the basis she chose to adopt to justify it. I am not dissuaded from that position because of Mr Rafter's plea that his client should be regarded separately from his counsel.

Those are the orders I would make and the approach I would take to the disposition of the appeal.

PINCUS JA:  I agree with the Chief Justice's reasons.  I would add that it is not clear to me that if evidence of the act of sexual intercourse emerged at any trial of the indecent dealing charge, despite the efforts of counsel, that would render the trial unfair.  I would also add that it appears to me that the decisions in Kite (1992)
60 A Crim R 226 and in Pearce (1998) 194 CLR 610 were of assistance in considering this matter. I agree with the Chief Justice's reasons and the order his Honour proposes.

McPHERSON JA:  I too agree with the reasons of the Chief Justice and with the order he has it in mind to make.

THE CHIEF JUSTICE:  The order is as I have indicated.

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