R v B (No 2) - [2010] QDC 307

DISTRICT COURT OF QUEENSLAND

CITATION:

R v B (No 2) [2010] QDC 307

PARTIES:

R

v

B

(applicant)

FILE NO/S:

2527/08

PROCEEDING:

Pre-trial hearing

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2010

JUDGE:

Rafter SC DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – GENERALLY – where previous ruling dismissing an application for a permanent stay of proceedings – where applicant submitted there were factors constituting special reason justifying the reopening of the ruling – where applicant ascertained one potential witness was deceased – where applicant was unable to locate two other potential witnesses despite attempts to do so – where one of the complainants allegedly lied under cross-examination at the committal hearing when asked whether she had made a previous rape complaint – where the particular complainant had admitted to lying in her police statement - whether leave ought to be granted to reopen the ruling

Criminal Code(Qld), s 590AA

Baker v The Queen (2004) 223 CLR 513, considered

R v B [2009] QDC 59, considered

R v Dunning; ex parte Attorney-General [2007] QCA 176, considered

R v Edwards (2009) 255 ALR 399, considered

R v Smith [1997] QCA 109, considered

COUNSEL:

A Hoare for the applicant

J Robson for the respondent

SOLICITORS:

Byrne Legal Group for the applicant

Office of the Director of Public Prosecutions for the respondent

The defendant is charged with one count of assault occasioning bodily harm, two counts of indecent assault on a female, eight counts of rape, two counts of deprivation of liberty and one count of stealing.

The charges relate to two female complainants. All offences are alleged to have occurred at the Gold Coast on the 13th of December 1981.

On 3 March 2009 Judge Brabazon QC dismissed an application by the defendant for a permanent stay of the indictment: see R v B [2009] QDC 59.

By this application the defendant seeks an order pursuant to section 590AA(3) Criminal Code granting leave to reopen the ruling made on 3 March 2009 and an order permanently staying indictment number 2527 of 2008 presented on 23 September 2008.

Section 590AA(3) provides that a pre-trial ruling is binding unless the Judge for special reason gives leave to reopen the ruling.

Although the factors constituting "special reason" cannot be defined Williams JA said in R v Dunning; ex parte Attorney-General [2007] QCA 176 that, "Frequently, perhaps more often than not, a material change to any factor relevant to the exercise of discretion will amount to 'special reason' for reopening the ruling..." (at para 33).

In Baker v The Queen (2004) 223 CLR 513 Gleeson CJ said, "There is nothing unusual about legislation that requires Courts to find 'special reasons' or 'special circumstances' as a condition of the exercise of a power. This is a verbal formula that is commonly used…

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 (No 2)

Details

AGLC: R v B (No 2) [2010] QDC 307
Case: [2010] QDC 307
Decision Date: 16 July 2010

CaseChat Overview and Summary

The case of R v B (No 2) involved the Crown and the defendant, B, in a criminal proceeding before the court. The defendant had previously sought a permanent stay of the proceedings, which was dismissed. The defendant now sought to reopen this ruling, claiming there were special circumstances justifying its reconsideration. These circumstances included the death of one potential witness and the inability to locate two other potential witnesses despite diligent efforts. Additionally, one of the complainants had allegedly lied under oath during cross-examination at the committal hearing regarding a prior rape complaint, and had admitted to lying in her police statement.

The court was tasked with determining whether the presented circumstances constituted special reasons warranting the reopening of the earlier ruling dismissing a permanent stay. The court considered the criteria for special reasons, including the death of a witness, the unavailability of other witnesses, and the credibility issues raised by the complainant's alleged falsehoods. The court needed to balance the defendant's right to a fair trial with the public interest in the finality of legal proceedings.

The court found that while the death of a witness and the unavailability of other witnesses were significant, they did not, on their own, constitute special reasons for reopening the ruling. Furthermore, the court held that the alleged lies of the complainant did not meet the threshold for special reasons, as they did not undermine the overall fairness of the proceedings. The court emphasised the importance of the finality of legal decisions and the need to prevent unnecessary delays. Consequently, the application to reopen the earlier ruling was dismissed.

The final order of the court was that the application to reopen the ruling dismissing the permanent stay of proceedings was dismissed. The proceedings against the defendant would continue as scheduled.

Orders

Orders of the court

The application is 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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v B (No 2) [2010] QDC 307
PARTIES:	R v B (applicant)
FILE NO/S:	2527/08
PROCEEDING:	Pre-trial hearing
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2010
JUDGE:	Rafter SC DCJ
ORDER:	The application is dismissed.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – GENERALLY – where previous ruling dismissing an application for a permanent stay of proceedings – where applicant submitted there were factors constituting special reason justifying the reopening of the ruling – where applicant ascertained one potential witness was deceased – where applicant was unable to locate two other potential witnesses despite attempts to do so – where one of the complainants allegedly lied under cross-examination at the committal hearing when asked whether she had made a previous rape complaint – where the particular complainant had admitted to lying in her police statement - whether leave ought to be granted to reopen the ruling Criminal Code(Qld), s 590AA Baker v The Queen (2004) 223 CLR 513, considered R v B [2009] QDC 59, considered R v Dunning; ex parte Attorney-General [2007] QCA 176, considered R v Edwards (2009) 255 ALR 399, considered R v Smith [1997] QCA 109, considered
COUNSEL:	A Hoare for the applicant J Robson for the respondent
SOLICITORS:	Byrne Legal Group for the applicant Office of the Director of Public Prosecutions for the respondent