R v B; ex parte - [2001] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION: R v BM; ex parte Attorney-General [2001] QCA 59

PARTIES:
R
v
BM
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(applicant)

FILE NO: CA No 241 of 2000
DC No 55A of 1999

DIVISION: Court of Appeal

PROCEEDING: Reference under s 669A Criminal Code

ORIGINATING COURT: District Court at Rockhampton

DELIVERED ON: 27 February 2001

DELIVERED AT: Brisbane

HEARING DATE: 2 February 2001

JUDGES: McMurdo P, Williams JA, Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:
IN ANSWER TO THE ATTORNEY-GENERAL’S REFERENCE QUESTION:

“Can specifying an alleged act as the first occasion when conduct of a certain type was committed be sufficiently particular to identify the offence charged”
An accused person is entitled to be sufficiently apprised of the particular occasion referred to in a charge against him. When it is alleged that a series of acts of a similar character was committed, it is necessary to have regard to all relevant circumstances in deciding whether the accused person’s right to be adequately apprised of the occasion to which the count relates has been satisfied. The utility of describing a charged act as the “first occasion”, when such particularisation is given as a step towards attempting to ensure that the accused’s rights have been accorded to him, will depend on the particular circumstances of the case. In the absence of any objective fact or event to which the charged event can be related, reliance only on that identifying feature in a case where the offence was one of a number which allegedly occurred in the distant past and the period in which it was alleged to have occurred is lengthy, will ordinarily mean that there is insufficient compliance with what is required for the purposes of proper administration of justice.

CATCHWORDS:
CRIMINAL LAW - ATTORNEY-GENERAL REFERENCE S669A CRIMINAL CODE – rape – indecent dealing – alleged offences occurred in distant past – meaning of “first occasion” as part of particulars – delay in instituting the reference

Criminal Code Act 1899 (Qld), s 669A, s 669 A(1A)

DPP v His Honour Judge Lewis [1997] 1 VR 391, applied
Johnson v Miller (1937) 59 CLR 467, considered
R v F CA No 439 of 1994, 12 December 1994, considered
R v K [1998] QCA 161; CA No 64 of 1998, 23 June 1998, considered
R v Lewis; ex parte Attorney-General [1991] 2 QdR 293, applied
Longman v The Queen (1989) 168 CLR 79, considered
R v R [1998] QCA 83, CA No 445 of 1997 and CA No 17 of 1998, 6 May 1998, considered
R v S [2000] 1 Qd R 445, considered
S v The Queen (1989) 168 CLR 266, considered

COUNSEL:
LJ Clare for the applicant

P Callaghan for the respondent

SOLICITORS: Director of Public Prosecutions (Queensland) for the applicant
John Murphy & Co Lawyers for the respondent

McMURDO P: I agree with Mackenzie J's reasons…

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 R v B; ex parte

Details

AGLC: R v B; ex parte [2001] QCA 59
Case: [2001] QCA 59
Decision Date: 27 February 2001

CaseChat Overview and Summary

In this matter, the respondents, B and R, were charged with a number of offences, including rape and indecent dealing, with the alleged offences occurring in the distant past. The Attorney-General sought a reference under s 669A of the Criminal Code to determine whether specifying an alleged act as the first occasion when conduct of a certain type was committed could be sufficiently particular to identify the offence charged. The court was tasked with interpreting the meaning of “first occasion” as part of the particulars and whether the delay in instituting the reference affected the outcome.

The central legal issues revolved around the adequacy of the particularisation in the charge, specifically whether describing an alleged act as the "first occasion" when a series of similar acts was committed was sufficient to inform the accused of the specific offence they were charged with. The court also considered whether the delay in making the Attorney-General’s reference impacted the court's ability to determine the adequacy of the particularisation.

The court found that when multiple acts of a similar nature were alleged, it was necessary to consider all relevant circumstances to determine whether the accused was adequately informed of the specific occasion to which the charge related. The utility of describing a charged act as the "first occasion" depended on the particular circumstances of the case. The court held that if there was no objective fact or event to which the charged event could be related, and particularly in cases where the offences were alleged to have occurred in the distant past over an extended period, merely relying on the "first occasion" identification would usually be insufficient for proper administration of justice. The delay in making the reference was also considered but did not influence the primary issue of particularisation adequacy.

The court concluded that the particularisation was insufficient because it failed to provide the accused with adequate information about the specific act they were charged with, given the distant past context of the alleged offences. The court did not provide further orders beyond answering the Attorney-General's reference question.

Orders

Orders of the court

IN ANSWER TO THE ATTORNEY-GENERAL’S REFERENCE QUESTION:

“Can specifying an alleged act as the first occasion when conduct of a certain type was committed be sufficiently particular to identify the offence charged”

An accused person is entitled to be sufficiently apprised of the particular occasion referred to in a charge against him. When it is alleged that a series of acts of a similar character was committed, it is necessary to have regard to all relevant circumstances in deciding whether the accused person’s right to be adequately apprised of the occasion to which the count relates has been satisfied. The utility of describing a charged act as the “first occasion”, when such particularisation is given as a step towards attempting to ensure that the accused’s rights have been accorded to him, will depend on the particular circumstances of the case. In the absence of any objective fact or event to which the charged event can be related, reliance only on that identifying feature in a case where the offence was one of a number which allegedly occurred in the distant past and the period in which it was alleged to have occurred is lengthy, will ordinarily mean that there is insufficient compliance with what is required for the purposes of proper administration of justice.

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:	R v BM; ex parte Attorney-General [2001] QCA 59
PARTIES:	R v BM (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (applicant)
FILE NO:	CA No 241 of 2000 DC No 55A of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Reference under s 669A Criminal Code
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	27 February 2001
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2001
JUDGES:	McMurdo P, Williams JA, Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	IN ANSWER TO THE ATTORNEY-GENERAL’S REFERENCE QUESTION: “Can specifying an alleged act as the first occasion when conduct of a certain type was committed be sufficiently particular to identify the offence charged” An accused person is entitled to be sufficiently apprised of the particular occasion referred to in a charge against him. When it is alleged that a series of acts of a similar character was committed, it is necessary to have regard to all relevant circumstances in deciding whether the accused person’s right to be adequately apprised of the occasion to which the count relates has been satisfied. The utility of describing a charged act as the “first occasion”, when such particularisation is given as a step towards attempting to ensure that the accused’s rights have been accorded to him, will depend on the particular circumstances of the case. In the absence of any objective fact or event to which the charged event can be related, reliance only on that identifying feature in a case where the offence was one of a number which allegedly occurred in the distant past and the period in which it was alleged to have occurred is lengthy, will ordinarily mean that there is insufficient compliance with what is required for the purposes of proper administration of justice.
CATCHWORDS:	CRIMINAL LAW - ATTORNEY-GENERAL REFERENCE S669A CRIMINAL CODE – rape – indecent dealing – alleged offences occurred in distant past – meaning of “first occasion” as part of particulars – delay in instituting the reference Criminal Code Act 1899 (Qld), s 669A, s 669 A(1A) DPP v His Honour Judge Lewis [1997] 1 VR 391, applied Johnson v Miller (1937) 59 CLR 467, considered R v F CA No 439 of 1994, 12 December 1994, considered R v K [1998] QCA 161; CA No 64 of 1998, 23 June 1998, considered R v Lewis; ex parte Attorney-General [1991] 2 QdR 293, applied Longman v The Queen (1989) 168 CLR 79, considered R v R [1998] QCA 83, CA No 445 of 1997 and CA No 17 of 1998, 6 May 1998, considered R v S [2000] 1 Qd R 445, considered S v The Queen (1989) 168 CLR 266, considered
COUNSEL:	LJ Clare for the applicant P Callaghan for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the applicant John Murphy & Co Lawyers for the respondent