R v CF - [2015] QDC 346

DISTRICT COURT OF QUEENSLAND

CITATION:

R v CF [2015] QDC 346

PARTIES:

THE QUEEN

v

CF

FILE NO/S:

DC No 100 of 2015

DIVISION:

Criminal

PROCEEDING:

Pre-trial hearing

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

9 June 2015

DELIVERED AT:

Bundaberg

HEARING DATE:

7 June 2015

JUDGE:

Smith DCJA

ORDER:

Separate trials are ordered with respect to each complainant.

CATCHWORDS:

CRIMINAL LAW – INDICTMENT – JOINDER OF COUNTS – severance of charges – whether evidence is cross-admissible – whether prejudice in joinder – sexual offences

Criminal Code 1899 (Q) ss 567, 590AA, 597A

Pfennig v R (1995) 182 CLR 461

Phillips v R (2006) 225 CLR 303

R v C [2002] QCA 82

R v CBM [2014] QCA 212

R v Hasler ex parte Attorney-General [1987] 1 Qd R 239

R v MAP [2006] QCA 220

R v MAY [2007] QCA 333

R v R [1997] QCA 277

R v WAH [2009] QCA 263

COUNSEL:

C W Wallis for the Crown

S Courtney for the defendant

SOLICITORS:

Director of Public Prosecutions for the Crown

Payne Butler Lang for the defendant

This is an application by the defence, pursuant to s 590AA of the Criminal Code to sever various counts on the indictment charging sexual offences against the defendant. The basis of the application is that the various complainants are not joinable under s 567 of the Criminal Code or, alternatively, there is prejudice in joinder under s 597A of the Code. The defence submits, in this case, that the evidence is not cross-admissible because it is not sufficient to fall within the test for admissibility outlined in Pfennig v R (1995) 182 CLR 461 and Phillips v R (2006) 225 CLR 303.

On the other hand, the Crown submits the counts are joinable. The Crown submits there is a nexus or connection between the offences (see R v MAY [2007] QCA 333) It submits that the following features are relevant: each child is a female; each child is a granddaughter, step or biological, of the applicant; each child was of a similar age; each incident involved the touching of the genital area of the complainant including two acts of digital penetration. The alleged offending occurred in generally close temporal succession.

With the exception of counts 3, 4, 7 and 8, they occurred when the child was either lying on a bed or a couch. The offending in counts 1, 2, 4 and 7 and 9 occurred in the house in which the defendant was staying with the children. With the exception of count 3, the offending occurred in close proximity with others and it is alleged that there were admissions made in a pretext call which may be regarded as being admissions to the various allegations by various complainants. Thus, it is submitted there is no reasonable view of the evidence consistent with the innocence of the applicant and, accordingly, any risk of prejudice may be overcome by directions (see R v CBM [2014] QCA 212).

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 CF

Details

AGLC: R v CF [2015] QDC 346
Case: [2015] QDC 346
Decision Date: 9 June 2015

CaseChat Overview and Summary

The case of R v CF was heard in a higher court, addressing an indictment involving multiple counts of sexual offences against several complainants. The primary dispute in this case was whether the charges against CF should be tried jointly or if severance of charges was appropriate. The crux of the argument was the potential for prejudice in the joinder of charges and whether the evidence would be cross-admissible without causing undue prejudice to the accused. The decision on these issues was pivotal in determining the fairness of the trial process for both the accused and the complainants.

The legal issues that the court had to decide were primarily focused on the principles of joinder and severance of charges in criminal trials, specifically in cases involving multiple sexual offences. The court needed to assess whether the joinder of these charges could lead to prejudice against the accused and whether the evidence presented in the case was sufficiently cross-admissible to warrant a joint trial. The court also had to consider the impact on the complainants of having their cases tried together and whether this would affect their ability to testify freely and effectively.

In its reasoning, the court considered the potential for prejudice in the joinder of charges and the admissibility of evidence in a joint trial. The court found that the evidence in this case was indeed cross-admissible, but the risk of prejudice to the accused in a joint trial was significant. The court concluded that the joinder of charges could result in substantial prejudice, potentially affecting the fairness of the trial and the rights of the accused to a fair hearing. Based on these findings, the court ordered separate trials for each complainant to mitigate the risk of prejudice and to ensure a fair trial process for both the accused and the complainants.

Orders

Orders of the court

Separate trials are ordered with respect to each complainant.

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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CITATION:	R v CF [2015] QDC 346
PARTIES:	THE QUEEN v CF
FILE NO/S:	DC No 100 of 2015
DIVISION:	Criminal
PROCEEDING:	Pre-trial hearing
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	9 June 2015
DELIVERED AT:	Bundaberg
HEARING DATE:	7 June 2015
JUDGE:	Smith DCJA
ORDER:	Separate trials are ordered with respect to each complainant.
CATCHWORDS:	CRIMINAL LAW – INDICTMENT – JOINDER OF COUNTS – severance of charges – whether evidence is cross-admissible – whether prejudice in joinder – sexual offences Criminal Code 1899 (Q) ss 567, 590AA, 597A Pfennig v R (1995) 182 CLR 461 Phillips v R (2006) 225 CLR 303 R v C [2002] QCA 82 R v CBM [2014] QCA 212 R v Hasler ex parte Attorney-General [1987] 1 Qd R 239 R v MAP [2006] QCA 220 R v MAY [2007] QCA 333 R v R [1997] QCA 277 R v WAH [2009] QCA 263
COUNSEL:	C W Wallis for the Crown S Courtney for the defendant
SOLICITORS:	Director of Public Prosecutions for the Crown Payne Butler Lang for the defendant