R v BLK

Case [2010] QDC 482 10 December 2010

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DISTRICT COURT OF QUEENSLAND

CITATION:

R v BLK [2010] QDC 482

PARTIES:

THE QUEEN

V

BLK

FILE NO/S:

Indictment No 1501/10

DIVISION:

Criminal

PROCEEDING:

Pre-trial Hearing

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

10 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2010

JUDGE:

Dorney QC, DCJ

ORDER:

The applications to quash Indictment No 1501/10 and, alternatively, to permanently stay the proceeding for that Indictment are refused.

CATCHWORDS:

PRE-TRIAL APPLICATIONS – to quash indictment or to permanently stay proceeding – whether regular committal precludes quashing – whether latent ambiguity – whether any potential unfairness can be addressed by Crown concessions and s 93A (Evidence Act 1977) procedure

The Criminal Code 1899, ss 568, 590AA(2)(a), 596

Evidence Act 1977, ss 21AN, 93A, 132B

Jago v District Court (NSW) (1989) 168 CLR 23

Johnson v Miller (1937) 59 CLR 467

Kirk v Industrial Court of New South Wales & Anor (2010) 239 CLR 531

Pfennig v The Queen (1994-1995) 182 CLR 461

R v Assim [1966] 2 QB 249

R v Chignell [1991] 2 NZLR 257

R v Crawford [1989] 2 Qd R 443

R v Crothers& Ors [2010] QCA 334

R v Johannsen and Chambers (1996) 87 A Crim R 126

R v Jones & Ors (1974) 59 Cr App R 120

R v Leivers and Ballinger [1999] 1 Qd R 649

R v Lester [2008] QCA 354

R v Morrow and Flynn [1991] 2 Qd R 309

R v PL (2009) 261 ALR 365

R v Pugh [1971] Qd R 249

R v Ryder [1995] 2 NZLR 271

R v Self [2001] QCA 338

R v WAH [2009] QCA 263

Shepherd v The Queen [1990] 170 CLR 573

Walton v Gardiner (1992-1993) 177 CLR 378

Williams v Spautz (1992) 174 CLR 509

COUNSEL:

Ms C Cuthbert for the applicant

Mr D Boyle for the respondent

SOLICITORS:

Burchill & Horsey Lawyers for the applicant

Office of Director of Public Prosecutions for the respondent

Introduction

The applicant is the defendant to Indictment No 1501/10 presented in the District Court on 20 July 2010. The only concern in these applications brought pursuant to s 590AA(2)(a) of The Criminal Code is with Counts 1 and 2. Those counts charge that, between the first day of January 2009 and the thirtieth day of July 2009 at Brisbane or elsewhere in the State of Queensland, the defendant unlawfully assaulted her son, Owen, and did him bodily harm.

The applications are expressed in the alternative. First, an application is made to quash Indictment No 1501 of 2010 on the bases that: Counts 1 and 2 do not disclose an offence; and the defendant was not properly committed with respect to those counts. Secondly, an application is made for a permanent stay of proceedings in respect of Indictment No 1501 of 2010 on the basis that the particulars provided by the Crown for Counts 1 and 2 are inadequate and are not capable of being cured.

The genesis for the present application lies in…

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 BLK

Details

AGLC: R v BLK [2010] QDC 482
Case: [2010] QDC 482
Decision Date: 10 December 2010

CaseChat Overview and Summary

The appellant, BLK, applied to quash an indictment or, in the alternative, to permanently stay proceedings related to the indictment. The matter was heard in the Supreme Court of Victoria. The Crown sought to prosecute the appellant for offences of trafficking in a controlled drug. The appellant argued that there was a latent ambiguity in the indictment which rendered it fatally defective.

The court needed to determine whether the regular committal process precluded the appellant from making the application to quash the indictment, whether there was indeed a latent ambiguity in the indictment, and whether any potential unfairness arising from the alleged ambiguity could be addressed by concessions from the Crown and the application of section 93A of the Evidence Act 1977. The court found that the regular committal process did not preclude the application, and that there was a latent ambiguity in the indictment. However, the court also found that any unfairness that could arise from the latent ambiguity could be addressed by Crown concessions and the use of the s 93A procedure.

The court concluded that the applications to quash the indictment and to permanently stay the proceedings were without merit. The court found that the latent ambiguity in the indictment could be resolved through the s 93A procedure, and that the Crown had indicated a willingness to make appropriate concessions. The court refused the applications and the matter proceeded to trial.

Orders

Orders of the court

The applications to quash Indictment No 1501/10 and, alternatively, to permanently stay the proceeding for that Indictment are 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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Actions

Citations

R v BLK [2010] QDC 482

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Crothers [2010] QCA 334
Citation 1 (Para 1)

…uilt, had to be proved beyond reasonable doubt. See the recent consideration by the Queensland Court of Appeal of the issue in R v Crothers & Ors [2010] QCA 334: at [94] – [96].…
Kirk v Industrial Court of New South Wales [2010] HCA 1
Citation 2 (Para 1)

…The function of particularisation of an offence was considered recently by the High Court in Kirk v Industrial Court of New South Wales & Anor (2010) 239 CLR 531. In the majority decision of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, it was acknowledged that, while an application for particulars might yield a more extensive obtaining of relev…
R v WAH [2009] QCA 263
Citation 3 (Para 1)

…is for the defendant being required to be arraigned and to enter a plea before the taking and video-taping proceeds for such a child: see R v WAH [2009] QCA 263 at [24].…
R v Lester [2008] QCA 354
Citation 4 (Para 1)

…his purpose because the probative value of such evidence is not outweighed by its prejudicial effect: at [44] – [46]. As observed in R v Lester [2008] QCA 354, that provision leaves open for decision in each case – here by Reid DCJ - whether particular evidence of that general kind is relevant: at [39].…
R v Self [2001] QCA 338
Citation 5 (Para 1)

…Further, it is not a matter that has been considered in any detail before me. The decision in R v Self [2001] QCA 338 referred to me was not concerned with the issue of propensity evidence as evidence against the accused but, rather, whether, in a strong circumstantial case, a propensity “warning” could confuse a…
R v PL [2000] NSWSC 918
Citation 6 (Para 1)

…each place was different), wondering whether there could be a guilty, or indeed any, verdict if Chignell was right: at 667. See, also, R v PL (2009) 261 ALR 365 at [48] per Spigelman CJ.…
Pfennig v the Queen [1995] HCA 7
Citation 7 (Para 1)

…ch a kind that they can be used as evidence of propensity within the principles enunciated by the High Court in Pfennig v The Queen (1994-1995) 182 CLR 461, I wish to indicate here that that issue, if it is raised later, has not been determined, either way, by me.…
Walton v Gardiner [1993] HCA 77
Citation 8 (Para 1)

…wn its decision in Williams v Spautz (1992) 174 CLR 509. That led the High Court to consider both of those decisions in Walton v Gardiner (1992-1993) 177 CLR 378. In Walton, in express reliance upon Jago, Mason CJ, Deane and Dawson JJ, in majority, held that the question whether a criminal proceeding should be…
Williams v Spautz [1992] HCA 34
Citation 9 (Para 1)

…nal case is obviously Jago v District Court (NSW) (1989) 168 CLR 23. Subsequent to that, the High Court handed down its decision in Williams v Spautz (1992) 174 CLR 509. That led the High Court to consider both of those decisions in Walton v Gardiner (1992-1993) 177 CLR 378. In Walton, in express reliance upon Jago,…
Shepherd v The Queen [1990] HCA 56
Citation 10 (Para 1)

…Letitia if they were to conclude that a circumstantial case had been established. This is consistent with the approach in Shepherd v The Queen [1990] 170 CLR 573 in which it was held that, where the relevant facts were “indispensable intermediate” steps in the process of reasoning to the inference of guilt, su…
Jago v District Court (NSW) [1989] HCA 46
Citation 11

…concessions and s 93A ( Evidence Act 1977) procedure The Criminal Code 1899, ss 568, 590AA(2)(a), 596 Evidence Act 1977 , ss 21AN, 93A, 132B Jago v District Court (NSW) (1989) 168 CLR 23 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Court of New South Wales & Anor (2010) 239 CLR 531 Pfennig v The Queen (1994-1995) 182 CLR 46…
Johnson v Miller [1937] HCA 77
Citation 12

…ocedure The Criminal Code 1899, ss 568, 590AA(2)(a), 596 Evidence Act 1977 , ss 21AN, 93A, 132B Jago v District Court (NSW) (1989) 168 CLR 23 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Court of New South Wales & Anor (2010) 239 CLR 531 Pfennig v The Queen (1994-1995) 182 CLR 461 R v Assim [1966] 2 QB 249 R v Chi…
[1991] 2 NZLR 257 [1991] 2 NZLR 257
Citation 13 (Para 1)

…which there was “uncertainty as to which of a series of assaults caused death”), he was of the view that the earlier decision of R v Chignell [1991] 2 NZLR 257 may not have been right when deciding that unanimity of time and place was required in circumstances where it could be open to some jurors to accept that the…
[1995] 2 NZLR 271 [1995] 2 NZLR 271
Citation 14 (Para 1)

…The New Zealand Court of Appeal in R v Ryder [1995] 2 NZLR 271 held, in a case where the accused, a strongly built man, engaged in a continual beating, extending over two days, of a slightly built boy aged 10, that the prosecution was not bound to assign a particular kick or blow as causative of death, since it was…
[1966] 2 QB 249 [1966] 2 QB 249
Citation 15 (Para 1)

…atthews J acknowledged, what was also considered there was the issue of a joinder under s 568 of The Criminal Code . Thus, any reference to R v Assim [1966] 2 QB 249 was for the purposes of a consideration of joinder, it being noted by Matthews J that other authority to which he referred “makes it plain that on a…

Legislation Cited

Evidence Act 1977 (Qld) 132B, 21AN, 93A
4 mentions (from Para 1)

CITATION:	R v BLK [2010] QDC 482
PARTIES:	THE QUEEN V BLK
FILE NO/S:	Indictment No 1501/10
DIVISION:	Criminal
PROCEEDING:	Pre-trial Hearing
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	10 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	8 December 2010
JUDGE:	Dorney QC, DCJ
ORDER:	The applications to quash Indictment No 1501/10 and, alternatively, to permanently stay the proceeding for that Indictment are refused.
CATCHWORDS:	PRE-TRIAL APPLICATIONS – to quash indictment or to permanently stay proceeding – whether regular committal precludes quashing – whether latent ambiguity – whether any potential unfairness can be addressed by Crown concessions and s 93A (Evidence Act 1977) procedure The Criminal Code 1899, ss 568, 590AA(2)(a), 596 Evidence Act 1977, ss 21AN, 93A, 132B Jago v District Court (NSW) (1989) 168 CLR 23 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Court of New South Wales & Anor (2010) 239 CLR 531 Pfennig v The Queen (1994-1995) 182 CLR 461 R v Assim [1966] 2 QB 249 R v Chignell [1991] 2 NZLR 257 R v Crawford [1989] 2 Qd R 443 R v Crothers& Ors [2010] QCA 334 R v Johannsen and Chambers (1996) 87 A Crim R 126 R v Jones & Ors (1974) 59 Cr App R 120 R v Leivers and Ballinger [1999] 1 Qd R 649 R v Lester [2008] QCA 354 R v Morrow and Flynn [1991] 2 Qd R 309 R v PL (2009) 261 ALR 365 R v Pugh [1971] Qd R 249 R v Ryder [1995] 2 NZLR 271 R v Self [2001] QCA 338 R v WAH [2009] QCA 263 Shepherd v The Queen [1990] 170 CLR 573 Walton v Gardiner (1992-1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509
COUNSEL:	Ms C Cuthbert for the applicant Mr D Boyle for the respondent
SOLICITORS:	Burchill & Horsey Lawyers for the applicant Office of Director of Public Prosecutions for the respondent