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R v Chardon

R v Chardon

Case [2016] QCA 50 4 March 2016

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Chardon [2016] QCA 50

PARTIES:

R
v
CHARDON, John William
(applicant)

FILE NO/S:

CA No 70 of 2015
DC No 358 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Criminal

ORIGINATING COURT:

District Court at Southport – [2015] QDC 59

DELIVERED ON:

Order delivered ex tempore 4 December 2015
Reasons delivered 4 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2015

JUDGES:

Margaret McMurdo P and Gotterson and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Delivered ex tempore on 4 December 2015:

The application for a declaration that the applicant be tried on indictment number 4267/14 presented in the District Court at Southport by a judge without a jury is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where an indictment charging the applicant with three offences of indecent treatment of a child and one offence of rape was presented at the District Court at Southport on 10 September 2014 – where the applicant applied for two pre-trial directions: (1) that the venue of the trial be transferred to Brisbane, and (2) that he be tried by a judge sitting without a jury – where both applications were dismissed and a Form 26 Notice of Appeal was filed against the dismissal orders – where at the hearing of the appeal, counsel for the applicant acknowledged that s 590AA(4) of the Criminal Code (Qld) precludes a right to appeal before conviction or sentence against a pre-trial direction or ruling made under s 590AA(1) of the Criminal Code (Qld) – where accordingly, the appeal was dismissed – where once the appeal was dismissed, leave was sought on behalf of the applicant to file an application in which a declaration was sought that the applicant be tried on indictment 4267/14 presented in the District Court at Southport by a judge without a jury – where there was no objection and leave was granted – where the Court ordered the application be dismissed at the hearing of the appeal and that reasons of the order be provided at a later date

Criminal Code (Qld), s 590AA, ch 67
District Court of Queensland Act 1967 (Qld), s 63
Jury Act 1995 (Qld), s 37, s 43, s 48, s 69A
Supreme Court of Queensland Act 1991 (Qld), s 29(3)

Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, considered
Bacon v Rose [1972] 2 NSWLR 793, cited
Bourke v Hamilton [1977] 1 NSWLR 470, cited
R v Long (No 1) [2002] 1 Qd R 662; [2001] QCA 318, considered
Re Rozenes; Ex parte Burd (1994) 68 ALJR 372; [1994] HCA 11, cited
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, considered

COUNSEL:

P J Davis QC, with A Kimmins and Y Chekirova, for the applicant
M R Byrne QC, with J A Wooldridge, for the respondent

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 Chardon

Details

AGLC: R v Chardon [2016] QCA 50
Case: [2016] QCA 50
Decision Date: 4 March 2016

CaseChat Overview and Summary

The case of R v Chardon involved an applicant facing multiple serious charges, including three counts of indecent treatment of a child and one count of rape. The charges were presented at the District Court at Southport on 10 September 2014. The applicant sought pre-trial directions, requesting that the venue of the trial be transferred to Brisbane and that he be tried by a judge sitting without a jury. Both of these applications were dismissed by the District Court, leading to the applicant filing a Form 26 Notice of Appeal against the dismissal orders.

The legal issues in this case primarily revolved around the right to appeal pre-trial directions or rulings. Specifically, the applicant needed to establish whether there was a right to appeal before conviction or sentence against a pre-trial direction or ruling made under section 590AA(1) of the Criminal Code (Qld). Counsel for the applicant acknowledged during the appeal hearing that section 590AA(4) of the Criminal Code (Qld) precludes such an appeal. This acknowledgement led to the dismissal of the appeal, as it was clear that the applicant did not have a legal basis to challenge the pre-trial decisions.

Given the dismissal of the appeal, the applicant sought leave to file an application for a declaration that he be tried on indictment number 4267/14 by a judge without a jury. The court granted leave for this application, but at the hearing of the appeal, the court ordered the dismissal of this application and directed that reasons for the order be provided at a later date. Ultimately, the court refused the application for a declaration that the applicant be tried on indictment number 4267/14 by a judge without a jury.

Orders

Orders of the court

Delivered ex tempore on 4 December 2015:

The application for a declaration that the applicant be tried on indictment number 4267/14 presented in the District Court at Southport by a judge without a jury is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Chardon [2016] QCA 50

Most Recent Citation

R v Hanna [2021] QCA 48

Cases citing this decision · 3 of 3 shown

Hutson v Australian Securities and Investments Commission
[2023] QCA 167

…on and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20, cited R v Chardon [2017] 1 Qd R 148; [2016] QCA 50, cited R v Long (No 1) [2002] 1 Qd R 662; [2001] QCA 318, cited R v PV; Ex parte Attorney-General [2005] 2 Qd R 325; [2004] QCA 494, cited Sankey v Whitlam (1978) 142 CLR 1; [1978…
Hutson v Australian Securities and Investments Commission
[2022] QSC 243 Para 15

…A); Nichols v State of Queensland [1983] 1 Qd R 580, 589 (Andrews SPJ), citing Sankey v Whitlam ; R v Chardon [2016] 1 Qd R 148, [2] (McMurdo P); [2016] QCA 50.…
R v Hanna
[2021] QCA 48 Para 15

…res adopted during the jury selection process, and appropriate directions. [13]Reasons below at [39]; citing R v Chardon [2015] QDC 59; R v Chardon [2016] QCA 50 at [5]; R v Chardon [2018] QSCPR 17.…

View all 3 citing cases →

Cases cited in this decision · 13 of 13 shown

McNamara v The Queen (No 2)
[2021] SASCFC 43 Para 4

…” [31](1994) 120 ALR 193 at 195. [32]See eg The Queen v Iorlano (1983) 151 CLR 678 at 680; Yates v Wilson (1989) 168 CLR 338 at 339; see also McNamara v The Queen (1978) 20 ALR 98; R v Garrett (1988) 49 SASR 435 at 451. [33](1991) 173 CLR 28 at 32.…
Attorney-General for the State of Queensland v Anderson
[2020] QSC 142

…ensland Act 1967 (Qld), s 63 Jury Act 1995 (Qld), s 37, s 43, s 48, s 69A Supreme Court of Queensland Act 1991 (Qld), s 29(3) Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, considered Bacon v Rose [1972] 2 NSWLR 793, cited Bourke v Hamilton [1977] 1 NSWLR 470, cited R v Long (No 1) [2002] 1 Qd R 662; [2001] QCA 318, considered Re…
R v Chardon
[2015] QDC 59

…2015 DC No 358 of 2014 DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application - Criminal ORIGINATING COURT: District Court at Southport – [2015] QDC 59 DELIVERED ON: Order delivered ex tempore 4 December 2015 Reasons delivered 4 March 2016 DELIVERED AT: Brisbane HEARING DATE: 4 December 2015 JUDGES: Ma…
Kirk v Industrial Court of New South Wales
[2010] HCA 1 Para 2

…in criminal proceedings where there are exceptional or special circumstances: see Anderson v Attorney-General (NSW) [4] and Sankey v Whitlam .[5] [1](2010) 239 CLR 531. [2][1972] 2 NSWLR 793. [3][1977] 1 NSWLR 470. [4](1987) 10 NSWLR 198. [5](1978) 142 CLR 1, Gibbs ACJ 20-27; Stephen J 78-81; Mason J 81-82.…
R v Long (No 1)
[2001] QCA 318 Para 3

…cited s 29(3) and the now-repealed s 68(2) of the Supreme Court of Queensland Act 1991. [17]Appeal Transcript 1-6 114-5; 1-8 114-5; 1-10 17. [18][2001] QCA 318; [2002] 1 Qd R 662 at [53].…
Re Rozenes; Ex parte Burd
[1994] HCA 11

…NSWLR 470, cited R v Long (No 1) [2002] 1 Qd R 662; [2001] QCA 318, considered Re Rozenes; Ex parte Burd (1994) 68 ALJR 372; [1994] HCA 11, cited Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, considered COUNSEL: P J Davis QC, with A Kimmins and Y Chekirova, for the applicant M R Byrne QC, with J A Wooldridg…
R v Glennon
[1992] HCA 16 Para 5

…of the declaration. Further, as Gotterson JA explains in his reasons,[9] there are sound policy concerns supporting this legislative intent. [7](1992) 173 CLR 592, Brennan J, 614-616, Dawson J agreeing at 625. [8] Criminal Code s 590AA(4). [9]At [27] and [28].…
Beljajev v Director of Public Prosecutions
[1991] HCA 16 Para 4

…at 680; Yates v Wilson (1989) 168 CLR 338 at 339; see also McNamara v The Queen (1978) 20 ALR 98; R v Garrett (1988) 49 SASR 435 at 451. [33](1991) 173 CLR 28 at 32.…
Yates v Wilson
[1989] HCATrans 215 Para 4

…on of interlocutory processes of a criminal trial’.” [31](1994) 120 ALR 193 at 195. [32]See eg The Queen v Iorlano (1983) 151 CLR 678 at 680; Yates v Wilson (1989) 168 CLR 338 at 339; see also McNamara v The Queen (1978) 20 ALR 98; R v Garrett (1988) 49 SASR 435 at 451. [33](1991) 173 CLR 28 at 32.…
House v R
[1936] HCA 40 Para 4

…tly obvious. The applicant has not shown that the judge made any error in the House v The King [6] sense in refusing to order a judge alone trial. [6](1936) 55 CLR 499, 507.…
Sankey v Whitlam
[1978] HCA 43

…01] QCA 318, considered Re Rozenes; Ex parte Burd (1994) 68 ALJR 372; [1994] HCA 11, cited Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, considered COUNSEL: P J Davis QC, with A Kimmins and Y Chekirova, for the applicant M R Byrne QC, with J A Wooldridge, for the respondent SOLICITORS: Paddington Law for the…
R v Iorlano
[1983] HCA 43 Para 4

…not fitted to the supervision of interlocutory processes of a criminal trial’.” [31](1994) 120 ALR 193 at 195. [32]See eg The Queen v Iorlano (1983) 151 CLR 678 at 680; Yates v Wilson (1989) 168 CLR 338 at 339; see also McNamara v The Queen (1978) 20 ALR 98; R v Garrett (1988) 49 SASR 435 at 451. [33](1991) 173 CLR 2…
Yates v Wilson
[1989] HCA 68 Para 4

…tory processes of a criminal trial’.” [31](1994) 120 ALR 193 at 195. [32]See eg The Queen v Iorlano (1983) 151 CLR 678 at 680; Yates v Wilson (1989) 168 CLR 338 at 339; see also McNamara v The Queen (1978) 20 ALR 98; R v Garrett (1988) 49 SASR 435 at 451. [33](1991) 173 CLR 28 at 32.…

Legislation cited in this decision · 4

Supreme Court of Queensland Act 1991 (Qld)
29, 29(3) 3 mentions (from Para 2)
District Court of Queensland Act 1967 (Qld)
63 2 mentions (from Para 8)
Jury Act 1995 (Qld)
37 2 mentions (from Para 5)
Constitution of Australia (Cth)
1 mention (from Para 2)

CITATION:	R v Chardon [2016] QCA 50
PARTIES:	R v CHARDON, John William (applicant)
FILE NO/S:	CA No 70 of 2015 DC No 358 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application - Criminal
ORIGINATING COURT:	District Court at Southport – [2015] QDC 59
DELIVERED ON:	Order delivered ex tempore 4 December 2015 Reasons delivered 4 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 December 2015
JUDGES:	Margaret McMurdo P and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Delivered ex tempore on 4 December 2015: The application for a declaration that the applicant be tried on indictment number 4267/14 presented in the District Court at Southport by a judge without a jury is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where an indictment charging the applicant with three offences of indecent treatment of a child and one offence of rape was presented at the District Court at Southport on 10 September 2014 – where the applicant applied for two pre-trial directions: (1) that the venue of the trial be transferred to Brisbane, and (2) that he be tried by a judge sitting without a jury – where both applications were dismissed and a Form 26 Notice of Appeal was filed against the dismissal orders – where at the hearing of the appeal, counsel for the applicant acknowledged that s 590AA(4) of the Criminal Code (Qld) precludes a right to appeal before conviction or sentence against a pre-trial direction or ruling made under s 590AA(1) of the Criminal Code (Qld) – where accordingly, the appeal was dismissed – where once the appeal was dismissed, leave was sought on behalf of the applicant to file an application in which a declaration was sought that the applicant be tried on indictment 4267/14 presented in the District Court at Southport by a judge without a jury – where there was no objection and leave was granted – where the Court ordered the application be dismissed at the hearing of the appeal and that reasons of the order be provided at a later date Criminal Code (Qld), s 590AA, ch 67 District Court of Queensland Act 1967 (Qld), s 63 Jury Act 1995 (Qld), s 37, s 43, s 48, s 69A Supreme Court of Queensland Act 1991 (Qld), s 29(3) Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, considered Bacon v Rose [1972] 2 NSWLR 793, cited Bourke v Hamilton [1977] 1 NSWLR 470, cited R v Long (No 1) [2002] 1 Qd R 662; [2001] QCA 318, considered Re Rozenes; Ex parte Burd (1994) 68 ALJR 372; [1994] HCA 11, cited Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, considered
COUNSEL:	P J Davis QC, with A Kimmins and Y Chekirova, for the applicant M R Byrne QC, with J A Wooldridge, for the respondent