R v Bo
[2014] ACTSC 287
•15 September 2014
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 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 them for the children to spend time with their father who also lived at the house.
It may be that the date was chosen because the siblings of the children’s father were under the care at the time of one Michael Taylor who died on 5 March 2012. He, the evidence suggested, was able to stop BO from what was described as bullying behaviour by BO towards the complainants or at least one of them.
In any event, the Crown has now applied to amend the indictment to extend the dates. So far as the first complainant is concerned, the application is to substitute 1 January 2008 for 1 March 2012. Initially the application was to substitute 2 July 2014 for 1 November 2012 but the evidence of the first complainant was that no sexual activity with her and BO took place after the sleeping arrangements were changed, namely on or about 1 November 2012, and I refused that application.
The application so far as the second complainant was concerned was to make the same two substitutions. Since the second complainant did not give the same evidence as to when any relevant sexual activity ceased as did the first complainant and as some was said to have taken place in the afternoon and not all when he and BO were sleeping in the same room, I entertained the application in relation to the second complainant as to both dates.
The application was opposed on the basis that there would be prejudice to BO and that the application was made too late. There were no details given of any specific prejudice that BO would suffer.
The Crown submitted that the case made by BO was that the acts constituting the offences did not happen and that the dates on the indictment were not specifically relevant. For example, BO did not rely on an alibi or other defence that was time-specific. It is also clear that the complainants did not specify that any act constituting any count on the indictment was related to any events that were able to be said to have occurred on any particular date or by reference to particular dates
It is clear that the Crown may amend an indictment. See s 264(1) of the Crimes Act 1900 (ACT). The provision permits amendment at any time during the trial. Indeed, in R v Bonner [1974] Crim LR 479, the Crown was permitted to amend the indictment during the judge’s summing up. In that case, dates were amended. The Court held that as dates are not an essential particular to a count on the indictment, there may be no injustice in the amendment where no other prejudice could be identified. The Court could make an amendment if the interests of justice required it.
Of course, such an amendment cannot be made where any prejudice to the accused would cause a miscarriage of justice or water down the case by the accused. See R v Westerman (1991) 5 A Crim R 353. There must be no specific prejudice to the accused. See Go v The Queen (1990) 73 NTR 1.
The Court of Appeal has had to consider a similar situation in Gillard v The Queen (2013) 275 FLR 416. Although the High Court upheld an appeal from that decision (see Gillard v The Queen (2014) 308 ALR 190) it did so on the ground that whether the conviction in that case was unsafe and unsatisfactory and the High Court did not suggest that the Court of Appeal’s decision as to the question of the amendment to the indictment was wrong. In Gillard v The Queen, the Court of Appeal referred to the need to specify the prejudice that an accused is said to suffer were the amendment made and that the inability to do so while still relying on what was called “general prejudice” meant that there was no unfairness in the trial from giving leave to amend so that the dates in the indictment became consistent with the evidence. In doing so, the Court relied on what Gummow and Hayne JJ said in Evans v The Queen (2007) 235 CLR 521.
The Crown’s position is that in the evidence so far adduced, including in cross-examination, there is a real possibility that the events could have occurred at any time while in the case of the first complainant she slept, as the evidence was, from time to time in BO’s bedroom or in the case of the second complainant, while he was on visits to his father at that home.
While the Crown can be criticised for not addressing this issue much earlier, the absence of specific prejudice identified by BO through his counsel means that it would not be in the interests of justice to deny the Crown the opportunity to put the counts in a form that is consistent with the evidence where the dates are not otherwise the subject of such specific evidence that there would be unfairness to BO to permit the amendment or otherwise a miscarriage of justice.
I have, as required by a decision such as R v Alderidge (1993) 67 A Crim R 371, considered carefully whether the amendment would lead to such a miscarriage of justice. I do not consider that it would do so.
Accordingly, 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.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 2014 |
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