R v Clowes

[2024] QDC 40

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Clowes [2024] QDC 40

PARTIES:

ANTHONY JOHN CLOWES

(applicant)

v

THE KING

(respondent)

FILENO:

1782/23

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVEREDON:

5 April 2024

DELIVEREDAT:

Brisbane

HEARINGDATE:

23 February 2024

JUDGE:

McGinness DCJ

ORDERS:

1.  Application dismissed

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – STAY OF INDICTMENT –

where historical sexual offence alleged – where defendant seeks permanent stay of indictment – where records of mediation not available – whether defendant materially prejudiced – whether direction to jury sufficient to cure unfairness

LEGISLATION:

Criminal Code Act 1899, s 590AA

Evidence Act 1977, s 132BA

CASES:

Dupas v The Queen (2010) 241 CLR 237

GLJ v Roman Catholic Church Lismore (2023) 97 ALJR 857

Jago v District Court (NSW) (1989) 168 CLR 23

R v Ansell; Bradbury [2022] QDC 148

R v DCL [2018] QDCPR 11

R v Dodds & H ex parte Attorney General [1996] QCA 402

R v Edwards (2009) 83 ALJR 717

R v Juides (unreported, 25 May 2022, Supreme Court of Qld)

R v KM [2016] QDCPR 8

Robinson v R [1999] HCA 42

Walton v Gardiner (1993) 177 CLR 378

COUNSEL:

S Holt K.C. for the applicant/defendant S McFarland for the respondent/Crown

SOLICITORS:

Gilshenan & Luton Legal Practice for the applicant/defendant

Office of the Director of Public Prosecutions for the respondent/Crown

Application

1. The defendant is charged on an indictment before the District Court at Brisbane with a single count of rape against the complainant relating to an incident on 9 December 1999.

2. The defendant applies pursuant to s 590AA Criminal Code Act 1899 (Qld) for the permanent stay of the indictment. The defendant submits that any trial of the defendant would be unfair because of the loss of evidence relating to a mediation said to have taken place between the complainant and the defendant. The prosecution opposes the application.

Complainant’s evidence

1. The defendant and complainant were police officers working from the Gladstone Criminal Investigation Branch at the time of the alleged offending.

2. On 9 December 1999, both attended a work Christmas party with colleagues. At about 4am, the complainant drove the defendant and a colleague Mr Stokes back to her house. It was arranged prior to the evening that they would stay the night because they would be drinking, and the complainant lived close to the venue. The defendant and Stokes were to sleep in the loungeroom. The complainant fell asleep in her bedroom fully clothed.

1. Sometime later the complainant woke to the defendant pressed up against her back with his hand across her chest and his penis penetrating her vagina. The complainant swore, jumped out of bed, and ran to the bathroom.

2. The following morning the complainant drove the defendant and Stokes to work. The complainant wished to get away from Gladstone, so she told her Officer in Charge, DS Rohweder (now Chief Superintendent) she had to do a ‘gun run’ to Brisbane. When she arrived in Brisbane, she told her friend…