R v DOM - [2016] QDC 118

DISTRICT COURT OF QUEENSLAND

CITATION:

R v DOM [2016] QDC 118

PARTIES:

R

(respondent)

v

DOM

(defendant/applicant)

FILE NO/S:

TD 140/15

DIVISION:

Criminal

PROCEEDING:

Application under s 590 AA of the Criminal Code

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

18 March 2016

DELIVERED AT:

Toowoomba

HEARING DATE:

11 March 2016

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1. Direct that the respondent provide further and better particulars of counts 7 and 10 on the indictment by 4pm on 23 March 2016.

CATCHWORDS:

CRIMINAL LAW- PROCEDURE- INFORMATION, INDICTMENT OR PRESENTMENT- AVERMENTS-UNCERTAINTY, DUPLICITY AND AMBIGUITY- where application made pursuant to s590AA of the Criminal Code- whether complaints are adequately particularised- whether joinder of counts/complaints is permissible-whether indictment should be quashed- whether separate trials should be ordered – where charges of a similar character and relevant nexus between charges – where potential cross-admissibility of evidence – where all counts properly joined on indictment – where separate trials not ordered – where two counts inadequately particularised – where prosecution directed to provide further and better particulars.

COUNSEL:

Ms S Petrie for the respondent.

Mr R Davies of counsel for the defendant/applicant.

SOLICITORS:

Officer Director of Public Prosecutions for the respondent.

David Burns Lawyers for the defendant/applicant.

The Indictment

There is presently before the Court a 32 count indictment charging the applicant with 23 counts of common assault; 4 counts of assault occasioning bodily harm; and 5 counts of assault occasioning bodily harm while armed. There are four complainants, each of whom were children placed in the care of the applicant. Two of the complainants, P and S, are twins.

The seven counts concerning offending against P are alleged to have been committed during various periods between 31 December 1998 and 1 August 2012. The six counts concerning offending against S are alleged to have been committed during various periods between 31 December 1999 and 1 January 2015. Nine counts concern offending against the complainant, K, during various periods between 31 December 1998 and 10 November 2008. Ten counts concern offending against the complainant, A, during various periods between 31 December 1998 and 1 January 2011.

The Application

The applicant has made an application to the court, ostensibly under s590AA of the Criminal Code. Regrettably, there has been a failure to comply with rule 42 of the Criminal Practice Rules 1999 which requires a party applying for a direction or ruling under s590AA to state in an application the nature of the direction or ruling sought. No application was filed.

The nearest there is to a statement of the nature of the direction or ruling sought is in paragraph 2 of the applicant’s submissions. Paragraph 2 is headed “Issues to be resolved at s590AA” and identifies, at paragraph 2.1, that the following issues require to be determined:

1. The adequacy of the particulars provided in relation to counts 7, 8, 9 and 10;

2. What joinder of counts/complaints is permissible;

3. Whether the current indictment should be quashed pursuant to s596 of the Criminal…

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 DOM

Details

AGLC: R v DOM [2016] QDC 118
Case: [2016] QDC 118
Decision Date: 18 March 2016

CaseChat Overview and Summary

In the case of R v DOM, the applicant, DOM, sought to have certain counts of the indictment quashed on the grounds that they were uncertain, duplicitous, ambiguous, and improperly joined. The case was heard by the Supreme Court of New South Wales, which considered whether the complaints in the indictment were adequately particularised and whether the joinder of counts was permissible.

The legal issues before the court were whether the complaints in the indictment were sufficiently particularised, whether the joinder of counts was appropriate, and whether the indictment should be quashed or if separate trials should be ordered. The court was also required to determine whether the counts had a relevant nexus and whether there was potential for the cross-admissibility of evidence.

The court found that the majority of the counts were properly joined on the indictment, and the complaints were adequately particularised. However, the court found that two counts were inadequately particularised and ordered the prosecution to provide further and better particulars by a specified date. The court determined that separate trials were not necessary as all counts had a relevant nexus and there was potential for the cross-admissibility of evidence. The court did not quash the indictment but directed the respondent to provide further and better particulars of the inadequately particularised counts.

In conclusion, the court did not quash the indictment but ordered the prosecution to provide further and better particulars for two counts. The court found that the majority of the counts were properly joined and that separate trials were not necessary. The court's decision ensures that the respondent has an opportunity to clarify the particulars of the two counts and that the trial can proceed in an efficient and effective manner.

Orders

Orders of the court

1. Direct that the respondent provide further and better particulars of counts 7 and 10 on the indictment by 4pm on 23 March 2016.

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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CITATION:	R v DOM [2016] QDC 118
PARTIES:	R (respondent) v DOM (defendant/applicant)
FILE NO/S:	TD 140/15
DIVISION:	Criminal
PROCEEDING:	Application under s 590 AA of the Criminal Code
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	18 March 2016
DELIVERED AT:	Toowoomba
HEARING DATE:	11 March 2016
JUDGE:	Horneman-Wren SC DCJ
ORDER:	1. Direct that the respondent provide further and better particulars of counts 7 and 10 on the indictment by 4pm on 23 March 2016.
CATCHWORDS:	CRIMINAL LAW- PROCEDURE- INFORMATION, INDICTMENT OR PRESENTMENT- AVERMENTS-UNCERTAINTY, DUPLICITY AND AMBIGUITY- where application made pursuant to s590AA of the Criminal Code- whether complaints are adequately particularised- whether joinder of counts/complaints is permissible-whether indictment should be quashed- whether separate trials should be ordered – where charges of a similar character and relevant nexus between charges – where potential cross-admissibility of evidence – where all counts properly joined on indictment – where separate trials not ordered – where two counts inadequately particularised – where prosecution directed to provide further and better particulars.
COUNSEL:	Ms S Petrie for the respondent. Mr R Davies of counsel for the defendant/applicant.
SOLICITORS:	Officer Director of Public Prosecutions for the respondent. David Burns Lawyers for the defendant/applicant.