SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DU |
Citation: | [2018] ACTSC 281 |
Hearing Date: | 3 August 2018 |
DecisionDate: | 12 October 2018 |
Before: | Burns J |
Decision: | See [70]-[71] |
Catchwords: | CRIMINAL LAW – whether the indictment filed by the Crown results in double jeopardy – whether this Court can and should take steps to rectify that situation CHILD SEXUAL OFFENCES – Committed for trial on six charges of engaging in sexual intercourse with a young person who was under the applicant’s special care – ex officio charge alleging that the applicant maintained a sexual relationship with the young person – six acts which form the basis of the charges under s 55A of the Crimes Act 1900 (ACT) are the same six acts which the Crown relies upon as the basis for the charge under s 56 of the Crimes Act – application for a stay STATUTORY INTERPRETATION – interpretation of subsections 56(8) and (9) – legislative history – s 92EA of the Crimes Act 1900 (ACT) – legislature sought to address common law requirement that offences be particularised to an extent that may make prosecution of child sexual offences problematic – whether the previous offence permitted the prosecution to proceed on a charge of maintaining a sexual relationship and specific charges based upon the same alleged acts – consideration of other jurisdictions – issue estoppel – Model Provision recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse - difficulty prosecution authorities experience in prosecuting cases of persistent sexual abuse of children – introduction of persistent child sex abuse offences HUMAN RIGHTS – Human Rights Act 2004 (ACT) s 24 – “an offence” – whether the term is to be construed narrowly or to be given a broader interpretation – European jurisprudence COMMON LAW – pleas in bar – autrefois convict – autrefois acquit – availability of a stay of proceedings in appropriate cases to prevent abuse of process or double punishment |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55A, 56, 92EA (repealed), pt 3 Crimes Act 1900 (NSW) ss 33, 110 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into force 23 March 1976) 999 UNTS 171, Article 14(7) |
Cases Cited: | Franz Fischer v Austria (European Court of Human Rights, Third Section, Application No 37950/97, 29 May 2001) |
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CaseChat Overview and Summary
The primary legal issue was whether the charges brought by the Crown amounted to double jeopardy, given that the six acts alleged under section 55A of the Crimes Act were the same acts relied upon for the charge under section 56. The court examined the legislative intent behind these provisions and whether the previous offence permitted prosecution on both the ex officio charge and specific charges based on the same acts. The interpretation of sections 56(8) and (9) of the Act was also crucial, as was the consideration of issue estoppel and the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. Additionally, the court considered the broader implications of prosecuting persistent child sexual abuse cases and the role of human rights legislation in this context.
The court found that the charges did indeed result in double jeopardy, as the legislative intent was to allow prosecution of both the ex officio charge and specific charges based on the same acts, without resulting in double jeopardy. The court also interpreted the term "an offence" in the Human Rights Act 2004 (ACT) to be given a broader interpretation, in line with European jurisprudence. The court concluded that it had the authority to take steps to rectify the double jeopardy situation, and granted a stay of proceedings to prevent abuse of process or double punishment.
The court ordered that the charges be stayed to prevent double jeopardy, ensuring that the defendant would not be unfairly prosecuted twice for the same acts. The specific details of the stay and any further proceedings were outlined in the final orders section of the judgment.
Orders
Orders of the court
See [70]-[71]
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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