R v. Cabo

[2007] QDC 265

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Cabo [2007] QDC 265

PARTIES:

THE QUEEN

v

JACOBUS THEODOURIS CABO
Applicant

FILE NO/S:

Indictment No 153 of 2006

DIVISION:

Criminal Jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

Ipswich

DELIVERED ON:

27 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2007

JUDGE:

O’Sullivan DCJ

ORDER:

I dismiss the application

CATCHWORDS:

Application – s 590AA Criminal Code; permanent stay of proceedings; disclosure of defence details to complainant before trial.

COUNSEL:

Mr Eberhardt for the applicant

Mr Butler SC for the respondent

SOLICITORS:

Richard Zande & Associates for the applicant

Crown Solicitor for the respondent

1. This is an application by Jacobus Theodouris Cabo for a Ruling under s 590AA Criminal Code that all further proceedings on Indictment No. 153 of 2006 be permanently stayed.  The background to the application can be briefly summarised as follows:

A        This matter was listed for trial, with Mr Gundelach as Crown Prosecutor and Mr Seaholme as Defence Counsel.  Mr Gundelach indicated to Mr Seaholme that he had doubts about the veracity of the complainant and invited Mr Seaholme to make a submission to the Director of Public Prosecutions.

B        Mr Seaholme agreed to do so, on the basis of an undertaking from Mr Gundelach that the submission would not be used to ‘strengthen the Crown case.’

C        A submission was sent to the Director which included detailed material additional to the matters disclosed in the conversation between Mr Gundelach and Mr Seaholme, and indeed details of certain events, namely, the death of the complainant’s grandmother; the time the complainant’s sisters were at TAFE; the date of a cousin’s birthday party.

D.       The Director of Public Prosecutions decided to continue with the prosecution.

E         Mr Andrew was briefed to prosecute.  He had a conference with the complainant at which (it would seem) he put to the complainant that the dates which she had given were wrong, and he put to her the dates in the letter to the Director, and she responded: ‘that sounds right.’ Mr Andrew amended the indictment to change the dates of the alleged events.

F         The complainant gave evidence at a trial, during which she adopted the dates revealed in the letter to the Director. That trial commenced on 21 November 2006, but did not proceed to conclusion.

1. Affidavits have been filed by Mr Gundelach, Mr Seaholme, Mr Andrew, Ms Hudson (the Crown clerk who attended the conference between Mr Andrew and the complainant).

1. I have received written submissions from Mr Hunter on behalf of the applicant, and from Mr Butler SC and Mr Kinsella on behalf of the respondent.  Mr Eberhardt appeared on behalf of the applicant at the hearing.

1. Counsel for the applicant submitted that the action ought to be permanently stayed because the disclosure to the complainant of the matters in the letter to the Director has resulted in manifest and irremediable unfairness to the defendant in the conduct of his trial.

1. In essence, the submission of Counsel for the applicant is that…