DISTRICT COURT OF QUEENSLAND
CITATION: R. v D R C Potter [2010] QDC 1 PARTIES: R. V DAVID ROBERT CHARLES POTTER
DefendantFILE NO: 155/09 PROCEEDING: Application to Stay Proceedings ORIGINATING
COURT:District Court at Southport DELIVERED ON: 12 January 2010 DELIVERED AT: Southport HEARING DATES: 2 & 3 December 2009 JUDGE: C F Wall QC ORDER: Application dismissed. CATCHWORDS: CRIMINAL LAW – PRACTICE – Indictment – application
for permanent stay of proceedings – nolle prosequi entered
because of misunderstanding of witnesses claim of privilege
against incrimination – blanket objection – method by which
claim should be made – ex officio indictment presented 3
years later for same charge – whether Crown able to present
indictment – whether abuse of process – relevant
considerations.LEGISLATION: Criminal Code, Secs 561 and 590(2)
Evidence Act, Sec 10(1)CASES: Re Bull (1998) 2Qd R 224 FAA
Re Jenkin [1994] 1 Qd R 266 DIS
R v Foley (2003) 2 Qd R 88 DIS
R v Boulle [2006] QSC 253 DIS
R V Ford [2006] QCA 440 DIS
Vandermeer v R [2003] QDC 026
R v Barton (1980) 147 CLR 75 FAA
R v Cooney (1988) 1 Qd R 464 FAA
Connelly v DPP [1964] AC 1254 CON
R v Saunders [1983] 2 Qd R 270 CON
Jago v NSW District Court (1989) 168 CLR 23 CON
Walton v Gardiner (1993) 177 CLR 378 CON
Williamson v Trainor [1992] 2 Qd R 572 CON
R v Croydon Justices; Ex parte Dean [1993] QB 769 CON
Visser v Hodgetts [2002] Tas SC 44 CON
Barac v DPP [2006] QSC 421 CONCOUNSEL: Mr S P Vasta for the Crown
Mrs P Kirkman-Scroope for the DefendantSOLICITORS: Office of the Department of Public Prosecutions for the
Crown
Oden Legal for the DefendantApplication
The defendant has applied for a permanent stay of proceedings on the basis that there is no power in the Crown to present an indictment against him or that to allow the prosecution to proceed would amount to an abuse of process. The first application is more correctly described as a motion to quash the indictment.
Background
The factual background to the proceedings commences with the following events recounted by Alice Potter, the defendant’s wife, in her police statement dated 29 June 2005
“1. I am a 41 year old mother of 3 who currently reside at 45/60-62 Beattie Road Coomera with my husband David Robert Charles POTTER and my daughter Stefanie Christina BRUMMER 4 years old and my son Joshua Emmett Byron POTTER 1 year old.
2. We have lived at this address for a period of approximately 2 years.
3. On the 2nd August 2000 I gave birth naturally to Stefanie at the Gold Coast Hospital. She is the daughter of my ex-husband Jefke Rene BRUMMER who I have been separated from since January 2002.
4. On the 27th of June 2002 I met David through an advertisement in the paper. A couple of weeks later he moved into…
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Details
- AGLC
- R. v D R C Potter [2010] QDC 1
- Case
- [2010] QDC 1
- Decision Date
CaseChat Overview and Summary
The defendant, David Robert Charles Potter, applied for a permanent stay of proceedings on the basis that there is no power in the Crown to present an indictment against him or that to allow the prosecution to proceed would amount to an abuse of process. The matter was heard in the Queensland District Court. The primary issue the court had to determine was whether there were any grounds for the defendant to seek a permanent stay of proceedings against him.
The court considered the arguments presented by the defendant and examined the evidence and submissions. The court determined that the defendant's application for a permanent stay of proceedings was without merit. The court found that there was a valid power in the Crown to present an indictment against the defendant and that there was no abuse of process. The court also noted that the defendant's wife, Alice Potter, was not required to testify in the proceedings against him, and that the Crown had reserved the right to call her as a witness if necessary.
The application for a permanent stay of proceedings was dismissed. The court ordered that the matter would proceed to trial as scheduled.
The court considered the arguments presented by the defendant and examined the evidence and submissions. The court determined that the defendant's application for a permanent stay of proceedings was without merit. The court found that there was a valid power in the Crown to present an indictment against the defendant and that there was no abuse of process. The court also noted that the defendant's wife, Alice Potter, was not required to testify in the proceedings against him, and that the Crown had reserved the right to call her as a witness if necessary.
The application for a permanent stay of proceedings was dismissed. The court ordered that the matter would proceed to trial as scheduled.
Orders
Orders of the court
Application dismissed.
Background
Background to the litigation
The defendant has applied for a permanent stay of proceedings on the basis that there is no power in the Crown to present an indictment against him or that to allow the prosecution to proceed would amount to an abuse of process. The first application is more correctly described as a motion to quash the indictment. Background The factual background to the proceedings commences with the following events recounted by Alice Potter, the defendant’s wife, in her police statement dated 29 June 2005 “1. I am a 41 year old mother of 3 who currently reside at 45/60-62 Beattie Road Coomera with my husband David Robert Charles POTTER and my daughter Stefanie Christina BRUMMER 4 years old and my son Joshua Emmett Byron POTTER 1 year old. 2. We have lived at this address for a period of approximately 2 years. 3. On the 2nd August 2000 I gave birth naturally to Stefanie at the Gold Coast Hospital. She is the daughter of my ex-husband Jefke Rene BRUMMER who I have been separated from since January 2002. 4. On the 27th of June 2002 I met David through an advertisement in the paper. A couple of weeks later he moved into my house in Pappas Way Carrara with myself and Stefanie who was 2 years old at the time. 5. On the 27th of June 2003 I married David. 6. In late 2003 we moved to our current address in Coomera. 11. At about 9.10am today I went out shopping and left Stefanie and Joshua in David’s care. 12. I returned home at about 9.30am and when I got home Stefanie met me at the front door of the unit and was very upset and took about 5 minutes to settle down which is very out of character for her. Once I calmed her down I was trying to find out why she was upset. 13. I said words to the effect of ‘whats matter [sic] why are you upset’ 14. She said ‘my wee wee’s sore Daddy hurt my wee wee’ 15. David was in the room at this time and he said that she had just done a poo and that he might have been a bit rough. 16. I got Stefanie to pull down her pants and noticed that her vagina lips were red and also the inside was red, so put some cream on her like I usually do. 17. At about 1 o’clock we went up to my room to have a lie down and Stefanie took her pants off. 18. She said ‘look mummy’ 19. And pointed down to her pants. 20. She said ‘Poo’ 21. When I looked closely I noticed that it was not poo it was spots of blood. I put another pair of pants on her thinking that she had just scratched herself because her vagina was sore. She then just layed on the bed. 22. At about 2.30pm I gave Stefanie a bath and she was still complaining that her wee wee was sore. 23. So I asked her ‘What did Daddy do how did he hurt you’ I asked this a couple of times. 24. She said ‘Daddy in my wee wee’ as she said this she put her thumb up. 25. I said ‘what’s this’ as I stuck my thumb up. She did not give me a reply. 26. After thinking about it for a while I decided to call the Coomera Medical Centre and after telling them of my suspicions they told me to go to the Gold Coast Hospital’s accident emergency department. 27. After arriving to the Hospital I was asked some questions by a lady who is employed there and told to wait. After waiting a short time I was seen by a man and he spoke to the paediatrician and they informed me that this had to be investigated by Police. 28. The hospital staff then took Stefanie to be examined. I was present during the examination. The Doctor informed me that there was a slight tear and an abrasion which I saw.”
Evidence
Evidence Before The Court
On 10 November 2005 Mr Peter Delibaltas of Legal Aid Queensland sent a facsimile letter to the Office of the Director of Public Prosecutions at 2.53pm that day. The letter is as follows “We act for Alice Marie POTTER who is charged with murder of her five year old child. The matter is listed for committal mention at Beenleigh Magistrates Court on 1 December 2005. Our client is a Crown witness in criminal proceedings against her husband, David Potter, who is charged with sexual offences relating to the deceased child. These charges occurred before the child died and are listed for committal hearing tomorrow, 11 November 2005. It is our understanding that your office has carriage of the prosecution of David Potter. After speaking with counsel briefed to defend our client, it is clear that Mrs Potter could be placed in a dangerous position if she gives evidence on oath in a proceeding relating to the child she is alleged to have killed. We have not received a brief of evidence from police for the charge of murder. No copy of the statement from our client to police regarding the sexual offences charged against David Potter has been provided at this stage. We formally provide notice of our intention to appear on our client’s behalf and argue that she should be allowed to claim privilege from answering any questions relating to the charge faced by David Potter. If our client gives any evidence before another Court, such evidence could be used against her in the case relating to the murder. The difficulty arises from the fact that we have not been provided with any statements for the murder charge, and as such we have no indication of what statements our client is alleged to have made and whether they would be inconsistent with other evidence which she may give. In these circumstances, it is extremely important that our client’s interests are protected before the Magistrates Court hearing the committal for the charges against David Potter. To protect her position we will advise Mrs Potter to claim privilege to any questioning. This point will no doubt be argued before the Magistrate who hears the matter and to ensure her rights are protected we have briefed counsel for this purpose. We are unable to secure the services of counsel Jeff Hunter who we intended to brief for the murder charge because he is unavailable at short notice. John Allen of Counsel is able to appear for Mrs Potter and argue the claim of privilege on her behalf. We also kindly ask whether you would be able to provide a copy of our client’s statement to police and her letter to police regarding the allegations…” The emphasis is mine. Ms Sarah Farnden, Acting Crown Prosecutor replied by facsimile letter sent the same day at 3.55pm “I refer to the above and to your letter received on even date. Please find attached a copy of the following documents: 1. Statement of Alice Marie Potter dated 29/06/05 2. Addendum statement of Alice Marie Potter dated 1st August 2005 3. Letter from Alice Potter to Narelle Blackely 4. Transcript of pre-text call between Alice and David Potter conducted on the 29th June 2005. I confirm my previous advice that the Crown does not intend to call your client to give evidence at the committal hearing tomorrow but will, on the record, reserve its right to call her at trial and produce her for cross-examination at a pre-trial hearing if so required by defence…”
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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