R v B; ex parte

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.