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R v DF (No 2)

R v DF (No 2)

Case [2012] ACTSC 3 31 January 2012

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R v DF (No 2)
[2012] ACTSC 3 (31 January 2012)

CRIMINAL LAW – jurisdiction, practice and procedure – information, indictment or presentment – filing multiple indictments – procedure to be followed – need to file a nolle prosequi in respect of the indictment not being prosecuted.

CRIMINAL LAW – jurisdiction, practice and procedure – form of trial – election for trial by judge alone – whether election negated by filing of fresh indictment.

Crimes Act 1900 (ACT), ss 61, 92K, 92J, 281
Court Procedures Rules 2006 (ACT), rr 4733, 4750, Divs 4.3.2, 4.3.4
Supreme Court Act 1933 (ACT), s 68B
Crimes Act 1900 (NSW), s 395
Director of Public Prosecutions Act 1990 (ACT), s 7
Legislation Act 2001 (ACT), ss 84, 102, 108, 114, 116, 117
Criminal Procedure Act 1986 (NSW), s 153
Crimes (Amendment) Ordinance (No 5) 1985 (Cth)
Crimes Legislation Amendment Act 2001 (ACT), s 43
Bail Act 1992 (ACT), ss 12B, 20B

Oxford English Dictionary (1991)

Weininger v The Queen (2003) 212 CLR 629
R v DF [2010] ACTSC 31
DF v The Queen [2011] ACTCA 11
Radley (1973) 58 Cr App R 394
Cicchino (1991) 54 A Crim R 358
R v Nicolaides (1994) 33 NSWLR 364
Jago v District Court of New South Wales (1989) 168 CLR 23
Crane v Director of Public Prosecutions [1921] 2 AC 299
Munday v Gill (1930) 44 CLR 38
R v Landy [1943] VLR 73
R v Swansson; R v Henry (2007) 69 NSWLR
Kelly v The King (1923) 32 CLR 509
R v Derrick and Ors (1984) 70 FLR 320
R v Harris and Ors (No 2) [1990] VR 305
R v Howard (1992) 29 NSWLR 242
R v Hiep (2000) 155 FCR 228
R v Sneesky [1951] St R Qd 26
R v Economou (1989) 51 SASR 421
Miller v Baker (1995) 5 Tas R 322
Esber v Commonwealth (1992) 174 CLR 430
R v Mustafa (1973) 3 DCR 154
W v The Queen (2001) 115 FCR 41
R v Fearnside (2009) 3 ACTLR 25
R v Tran (2002) 167 FLR 345
R v Rushton [1967] VR 842
R v Evans [1964] VR 717
Lane v The Queen (1996) 66 FCR 144

R v Thompson; R v Clein [1975] 1 WLR 1425

No. SCC 14 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 31 January 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 14 of 2008
AUSTRALIAN CAPITAL TERRITORY )

R
V
DF

ORDER

Judge:  Refshauge J
Date:  31 January 2012
Place:  Canberra

THE COURT ORDERS THAT:

A Notice Declining to Proceed with the Prosecution of the indictment dated 14 November 2011 be filed.

This was a trial by judge alone of one count alleging that DF, between 1 and 31 January 1987, committed an act of indecency upon the complainant who was then 15 years old, an offence contrary to s 92K of the Crimes Act 1900 (ACT), as it stood at January 1987. At the beginning of…

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 DF (No 2)

Details

AGLC: R v DF (No 2) [2012] ACTSC 3
Case: [2012] ACTSC 3
Decision Date: 31 January 2012

CaseChat Overview and Summary

In the case of R v DF (No 2), the defendant faced charges that led to the filing of two separate indictments. The legal matter at hand involved the procedural correctness of these indictments and the defendant's right to a fair trial. The court was tasked with determining whether the filing of a second indictment, which contained additional charges, negated the defendant's prior election for a trial by judge alone. The court was also required to consider whether the prosecution's failure to file a nolle prosequi in relation to the first indictment impacted the validity of the second indictment and the trial process.

The legal issues centred on the procedural correctness of filing multiple indictments in a single prosecution and the effect of an election for a trial by judge alone when new charges are introduced. The court had to address whether the fresh indictment negated the defendant's prior election for a trial by judge alone and if the prosecution's failure to file a nolle prosequi affected the validity of the second indictment. The court also needed to consider the implications of the prosecution's actions on the defendant's right to a fair trial.

The court concluded that the fresh indictment did not negate the defendant's prior election for a trial by judge alone. It was determined that the defendant's right to a fair trial was not prejudiced by the prosecution's failure to file a nolle prosequi in relation to the first indictment. The court found that the defendant's rights were protected and the trial could proceed as elected. The court ordered that a Notice Declining to Proceed with the Prosecution of the first indictment dated 14 November 2011 be filed to ensure clarity and procedural correctness in the case.

Orders

Orders of the court

A Notice Declining to Proceed with the Prosecution of the indictment dated 14 November 2011 be filed.

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 DF (No 2) [2012] ACTSC 3

Most Recent Citation

The Queen v Thomas Johnston [2012] ACTSC 166

Cases citing this decision · 21 of 21 shown

Director of Public Prosecutions v van de Zandt
[2023] ACTSC 228

…Mattherson v Burton (1971) 124 CLR 1 Newell v King (1936) 55 CLR 707 R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 R v Girvan [2012] ACTSC 142; 222 A Crim R 138 R v Fearnside [2009] ACTCA 3; 3 ACTLR 25 Rodway v The Queen (1990) 169 CLR 515…
R v Carberry
[2022] ACTSC 208 Para 1

…d on the indictment filed on 11 June 2021, did not proceed. A Notice Declining to Proceed should be filed in respect of those offences: R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 at 113; [45].…
R v Deng
[2022] ACTSC 143 Para 1

…hat a number of the offences on which Mr Deng was committed are not to proceed. A notice declining to proceed should be filed for them: R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 at 113; [45]. The summary charges should also be dealt with appropriately.…
R v Cook
[2022] ACTSC 381 Para 4

…are, the Court was informed, not to proceed. Accordingly, they should be dealt with by the filing of a Notice Declining to Proceed: see R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 at 113; [45], recently followed by R v Featherstone (No 2) [2019] ACTSC 258; 14 ACTLR 242 at 248; [16]. The Court was advised that this…
R v Donnelly
[2021] ACTSC 336

…[2011] HCA 4; 243 CLR 506 Ibbs v The Queen (1987) 163 CLR 447 Kelly v The Queen [2017] NSWCCA 256 R v Crawford (No 1) [2020] ACTSC 245 R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 R v Elphick [2021] ACTSC 9 R v Fernando (1992) 76 A Crim R 58 R v GD, DD, AKT and BW (Unreported, Supreme Court of the Australian Capita…
R v Featherstone (No 2)
[2019] ACTSC 258

…R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 R v Featherstone [2019] ACTSC 218 R v Livas [2013] ACTSC 214…
R v Eyles (No 3)
[2017] ACTSC 1 Para 1

…sfaction. I note, however, that no Notice Declining to Proceed has yet been filed in relation to the other count on the indictment. See R v DF (No 2) [2012] ACTSC 3; 257 FLR 31 at 38; [45]. I assume that the Crown will do so as soon as possible.…
R v Carmody
[2016] ACTSC 382 Para 1

…of the indictment. I note that no notice declining to proceed with the second count on the indictment has been filed as provided for in R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 at 113; [45]. It may be that, in the circumstances, where the plea is entered to an alternative count, the filing of such a notice is no…
R v Ogilvie (No 2)
[2016] ACTSC 265 Para 1

…ounts on the indictment that had been filed, and Notices Declining to Proceed were filed in respect of the other counts, as required in R v DF (No 2) (2012) 257 FLR 31 at 38 [45].…
R v Aniezue
[2016] ACTSC 82 Para 1

…to Proceed with the more serious offence of using a carriage service to groom a child ( s 474.27 of the Criminal Code ) was filed. See R v DF (No 2) (2012) 257 FLR 31 at 38; [45] .…
R v Chemhere (No. 2)
[2016] ACTSC 62

…May 2012) R v Chemhere (Unreported, Supreme Court of the Australian Capital Territory, SCC 362 of 2011, Justice Refshauge, 6 July 2012) R v DF (No 2) (2012) 257 FCR 31 R v Kristiansen [2015] ACTSC 159 R v Sladic [2014] ACTSC 56 R v Wallace (No 2) [2016] ACTSC 38…
R v Pikula
[2015] ACTSC 380 Para 1

…pted in full satisfaction of the indictment. The Crown agreed to file a Notice Declining to Proceed in respect to the second count, see R v DF (No 2) (2012) 257 FLR 31 at 38; [45].…
R v Stanley
[2015] ACTSC 322 Para 1

…tiations on 19 June 2015. It seems to me that a Notice Declining to Proceed should be filed in relation to the earlier indictments. See R v DF (No 2) (2012) 257 FLR 31 at 38; [45].…
R v Ogilvie
[2015] ACTSC 296 Para 1

…satisfaction of the indictment. I expect the Crown will file a notice declining to proceed in respect of the counts not proceeding; see R v DF (No 2) (2012) 257 FCR 31 at 38; [45] .…
R v Wilkins
[2015] ACTSC 145 Para 1

…d guilty to the counts on the two indictments dated 19 March 2015. I assume that, in accordance with the practice established following R v DF (No 2) (2012) 257 FLR 31 at 38; [45], a Notice Declining to Proceed will be filed in respect of the indictment dated 4 November 2014.…
R v Sordini
[2015] ACTSC 45 Para 1

…n the indictment and the Crown indicated that it would accept this in full satisfaction of the indictment. No doubt, in accordance with R v DF (No 2) [2012] ACTSC 3, the Crown will file a notice declining to proceed in respect of the other counts on the indictment.…
R v Taylor
[2015] ACTSC 43 Para 1

…otice declining to proceed in respect of the other counts on the indictment will be filed by the Crown, as stated that it would do. See R v DF (No 2) [2012] ACTSC 3. He has not spent any time in custody for these offences.…
R v Kilicaslan
[2015] ACTSC 39 Para 1

…e other charge is one for which an indictment has been presented and I assume the Crown, in accordance with the principles set out in R v DF (No 2) [2012] ACTSC 3, will, in due course, file a notice declining to proceed.…
R v Carney (No 2)
[2014] ACTSC 61 Para 1

…gh it has not yet been done, I expect that a notice declining to proceed will be filed in respect of the remaining three counts. See R v DF (No 2 ) (2012) 257 FLR 31 at 38; [45]). It is accepted that the utilitarian value of a plea of guilty represents the advantage the plea makes to the administration of justice. T…
R v Carney
[2013] ACTSC 266 Para 1

…ence under s 55(2) of the Crimes Act . The Crown indicated that it would accept those pleas in full satisfaction of the indictment. See R v DF (No 2) (2012) 257 FLR 31 at 38; [45].…
The Queen v Thomas Johnston
[2012] ACTSC 166

…R v Girvan [2012] ACTSC 142 W v The Queen (2001) 124 189 ALR 633 R v DF (no.2) [2012] ACTSC 3…

View all 21 citing cases →

Cases cited in this decision · 13 of 13 shown

DF v The Queen
[2011] ACTCA 11 Para 1

…led to the ACT Court of Appeal against the conviction. On 23 June 2011, the Court of Appeal upheld the appeal and ordered a new trial: DF v The Queen [2011] ACTCA 11.…
R v DF
[2010] ACTSC 31 Para 1

…On 15 April 2010, her Honour convicted DF of the first count on the indictment and acquitted him of the second count: R v DF [2010] ACTSC 31.…
R v Howard
[2008] NSWSC 934 Para 1

…In R v Howard (1992) 29 NSWLR 242, the NSW Court of Criminal Appeal had to consider a similar situation to that confronting me. There, an indictment for manslaughter was presented, the accused was arraigned and unexpectedly pleaded not guilty. Subsequently the Crown laid an indictment for murder at the subsequent tria…
R v Swansson
[2007] NSWCCA 67 Para 1

…Public Prosecutions [1921] 2 AC 299; Munday v Gill (1930) 44 CLR 38 (at 54-7; 75-6, 86- 8); R v Landy [1943] VLR 73 (at 75); R v Swansson; R v Henry (2007) 69 NSWLR 406 (at 409-12; [11] to [35]). The Crown may, however, proceed on an indictment different to that originally presented: Kelly v The King (1923) 32 CLR 50…
Weininger v The Queen
[2003] HCA 14

…Weininger v The Queen (2003) 212 CLR 629 R v DF [2010] ACTSC 31 DF v The Queen [2011] ACTCA 11 Radley (1973) 58 Cr App R 394 Cicchino (1991) 54 A Crim R 358 R v Nicolaides (1994) 33 NSWLR 364 Jago v District Court of New South Wales (1989) 168 CLR 23 Crane v Director of Public Prosecutions [1921] 2 AC 299 Munday v Gi…
R v Tran
[2002] ACTSC 56 Para 1

…That does not directly assist in the resolution of the issue. I note, however, in R v Tran (2002) 167 FLR 345, consideration was given to some issues with which I am now concerned.…
Lane v The Queen
[1996] FCA 385 Para 1

…It has been held that the hearing of proceedings, that is the trial, commences upon arraignment: Lane v The Queen (1996) 66 FCR 144 (at 145). Whether that strictly still applies where arraignment occurs well prior to the actual empanelment of the jury, the opening by the Crown and the calling of evidence is a matter…
Esber v the Commonwealth
[1992] HCA 20 Para 1

…2001 (ACT), which provides that an amendment of a law does not affect an existing right accrued under the law. See, for example, Esber v Commonwealth (1992) 174 CLR 430 (at 440).…
Jago v District Court (NSW)
[1989] HCA 46 Para 1

…that indictment. This is what s 281 of the Crimes Act provides. It also accords with what Brennan J said in Jago v District Court of New South Wales (1989) 168 CLR 23 (at 38-9). There cannot be two or more indictments in respect of any one trial: Crane v Director of Public Prosecutions [1921] 2 AC 299; Munday v Gil…
Munday v Gill
[1930] HCA 20 Para 1

…at 38-9). There cannot be two or more indictments in respect of any one trial: Crane v Director of Public Prosecutions [1921] 2 AC 299; Munday v Gill (1930) 44 CLR 38 (at 54-7; 75-6, 86- 8); R v Landy [1943] VLR 73 (at 75); R v Swansson; R v Henry (2007) 69 NSWLR 406 (at 409-12; [11] to [35]). The Crown may, howeve…
Kelly v The King
[1923] HCA 46 Para 1

…07) 69 NSWLR 406 (at 409-12; [11] to [35]). The Crown may, however, proceed on an indictment different to that originally presented: Kelly v The King (1923) 32 CLR 509 (at 517). Whether that can be done where an earlier indictment has been quashed (which was doubted in R v Derrick and Ors (1984) 70 FLR 320) is not p…
[1921] 2 AC 299
[1921] 2 AC 299 Para 1

…South Wales (1989) 168 CLR 23 (at 38-9). There cannot be two or more indictments in respect of any one trial: Crane v Director of Public Prosecutions [1921] 2 AC 299; Munday v Gill (1930) 44 CLR 38 (at 54-7; 75-6, 86- 8); R v Landy [1943] VLR 73 (at 75); R v Swansson; R v Henry (2007) 69 NSWLR 406 (at 409-12; [11]…
[1975] 1 WLR 1425
[1975] 1 WLR 1425 Para 1

…roceedings. It has been held, however, that only one indictment can be presented (or filed) based on a committal proceeding: R v Thompson ; R v Clein [1975] 1 WLR 1425 (at 1429). That decision, however, may have been based on specific legislative provisions.…

Legislation cited in this decision · 8

Legislation Act 2001 (ACT)
102, 108, 114, 116, 117, 84 7 mentions (from Para 1)
Crimes Act 1900 (ACT)
281, 395, 61, 92J, 92K 6 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
4.3.4, 4733, 4750 4 mentions (from Para 1)
Bail Act 1992 (ACT)
12B, 20B 3 mentions (from Para 1)
Crimes Legislation Amendment Act 2001 (ACT)
43 2 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
153 2 mentions (from Para 1)
Director of Public Prosecutions Act 1990 (ACT)
7 2 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
68B 2 mentions (from Para 1)