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…
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- AGLC
- R v DF (No 2) [2012] ACTSC 3
- Case
- [2012] ACTSC 3
- Decision Date
CaseChat Overview and Summary
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
1.
A Notice Declining to Proceed with the Prosecution of the indictment dated 14 November 2011 be filed.
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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