R v Bo - [2014] ACTSC 287

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BO
Citation:	[2014] ACTSC 287
Hearing Date(s):	12 September 2014
DecisionDate:	15 September 2014
Before:	Refshauge J
Decision:	See [17].
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, Indictment or Presentment – Application to amend indictment – Indictment can be amended at any time during trial – Dates not an essential particular to a count and can be amended where no other prejudice is identified – Amendment would not lead to miscarriage of justice – Application allowed
Legislation Cited:	Crimes Act 1900 (ACT), s 264(1)
Cases Cited:	Evans v The Queen (2007) 235 CLR 521 Gillard v The Queen (2013) 275 FLR 416 Gillard v The Queen (2014) 308 ALR 190 Go v The Queen (1990) 73 NTR 1 R v Alderidge (1993) 67 A Crim R 371 R v Bonner [1974] Crim LR 479 R v Westerman (1991) 5 A Crim R 353
Parties:	The Queen (Crown) BO (Accused)
Representation:	Counsel Ms M Moss (Crown) Mr J Sabharwal (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Accused)
File Number(s):	SCC 215 of 2013

Refshauge J:

BO has been charged with five counts of committing an act of indecency in the presence of or on the first complainant, one count of engaging in sexual intercourse with the first complainant and three counts of committing an act of indecency on or in the presence of the second complainant, both complainants being, at the time, under the age of ten years.

The indictment specifies that the dates between which the offences are said to have occurred in each case were between 1 March 2012 and 1 November 2012. The allegations of the Crown are that the offences all took place in BO’s bedroom at the family home in Fisher, ACT.

BO is the uncle of the two complainants who attended at the family home under an arrangement for access and care by their father once a fortnight. The end date for the offences was clearly chosen because the complainants ceased to sleep in BO’s bedroom after 30 October 2012, it appears from the evidence, because one of BO’s sisters then moved out and the complainants’ father then moved into her bedroom where both complainants could and did then sleep.

The first complainant said that no incidents occurred after that time. The second complainant said, however, that some acts occurred during the day, although without great specificity as to the dates, when BO invited him into his bedroom making the change of sleeping arrangements not determinative of when the incidents occurred.

I had no real sense from the evidence of why 1 March 2012 was chosen by the Crown as the start date for the period during which the acts constituting the counts on the indictment are said to have occurred. The children went to the home in Fisher from about 2008 from when arrangements had been made between the separated parents of…

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 Bo

Details

AGLC: R v Bo [2014] ACTSC 287
Case: [2014] ACTSC 287
Decision Date: 15 September 2014

CaseChat Overview and Summary

The appellant, Bo, was charged with various criminal offences including fraud and money laundering. The case was brought to the court with an application to amend the indictment, which listed the dates of the alleged offences. The application was made during the trial and the court was required to decide whether the amendment could be allowed. The court considered whether the amendment would cause any prejudice to the appellant, and whether it was necessary to ensure a fair trial.

The court found that dates were not essential particulars to the counts and could be amended if no prejudice was identified. The court also found that the amendment would not lead to a miscarriage of justice and that the appellant would not be prejudiced by the change in dates. The court held that an indictment could be amended at any time during the trial, and that the amendment would not cause any unfairness to the appellant.

The court allowed the application to amend the indictment and ordered that all counts be amended to substitute the new dates. The court also ordered that counts 7, 8 and 9 be amended to substitute another date. The court's decision was based on the principle that justice should be done according to law and that the interests of justice required the amendment to be allowed.

The court's final orders were that all counts on the indictment be amended to substitute the new dates, and that counts 7, 8 and 9 be amended to substitute another date. The court's decision was based on a careful consideration of the legal principles and the facts of the case, and it ensured that the trial proceeded in a fair and just manner.

Orders

Orders of the court

I will amend all counts on the indictment to substitute 1 January 2008 for 1 March 2012 and to amend counts 7, 8 and 9 to substitute 22 July 2013 for 1 November 2012.

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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