R v Du (No 2) - [2019] ACTSC 241

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DU (No 2)
Citation:	[2019] ACTSC 241
Hearing Date:	20 August 2019
DecisionDate:	30 August 2019
Before:	Murrell CJ
Decision:	See [64]–[67].
Catchwords:	CRIMINAL LAW – STAY OF PROCEEDINGS – Where the accused charged with maintaining sexual relationship with a young person under special care under s 56 of the Crimes Act 1900 (ACT) – Where seven instances underlying the charge – Where prosecution presented three different indictments – Where final indictment presented after taking of the complainant’s pre-trial evidence – Whether prosecution fundamentally changed its case – Whether defence suffered prejudice incurable by further evidence – Whether a stay should be granted.
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 4750 Crimes Act 1900 (ACT) ss 54, 55A, 56, 60, 67 Crimes Legislation Amendment Act 2018 (ACT) s 4 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 63(3)
Cases Cited:	Agresti v The Queen [2017] ACTCA 20; 13 ACTLR 1 Dupas v The Queen [2010] HCA 20; 241 CLR 237 Jago v District Court (NSW) (1989) 168 CLR 23 R v DU [2018] ACTSC 281 R v Goodwin [2009] ACTSC 111; 233 FLR 473 Royall v The Queen (1991) 172 CLR 378 Tony Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; 93 ALJR 1 Zonneveld v The Queen (No 2) [2018] ACTCA 31
Parties:	The Queen (Crown/Respondent) DU (Accused/Applicant)
Representation:	Counsel J Hiscox (Crown/Respondent) K Archer (Accused/Applicant)
Solicitors ACT Director of Public Prosecutions (Crown/Respondent) Aulich Criminal Law (Accused/Applicant)
File Number:	SCC 15 of 2018

Murrell CJ

Introduction

The applicant seeks a permanent stay of his trial on a charge that, in February/March 2017, he maintained a sexual relationship with BT (the complainant), a young person under his “special care”. The Crown alleges that the complainant was under the applicant’s special care because he was her tenpin bowling coach.

Alternatively, the applicant seeks a stay of the charge until further evidence is taken from the complainant and the Crown pays his costs thrown away because of a fundamental change in the prosecution case following the pre-trial cross-examination of the complainant.

The applicant is privately funding his defence and has incurred significant costs in defending the proceedings, in part because of the asserted change to the Crown case.

The applicant was committed for trial on six charges of engaging in sexual intercourse with a young person who was under the applicant’s special care, contrary to s 55A of the Crimes Act 1900 (ACT) (Crimes Act).

The current indictment is the most recent of three indictments filed in the Supreme Court.

The first indictment, dated 16 March 2018, contained 14 counts: the charge of maintaining a sexual relationship with the complainant (contrary to s 56 of the Crimes Act); six counts alleging specific acts of non-consensual sexual intercourse with the complainant (contrary to s 54 of the Crimes Act); six charges alleging sexual intercourse with a young person under…

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 Du (No 2)

Details

AGLC: R v Du (No 2) [2019] ACTSC 241
Case: [2019] ACTSC 241
Decision Date: 30 August 2019

CaseChat Overview and Summary

The case of R v Du (No 2) involved the respondent, Du, who was charged with maintaining a sexual relationship with a young person under special care, contrary to section 56 of the Crimes Act 1900 (ACT). The prosecution presented three different indictments, with the final indictment being presented after the complainant had given pre-trial evidence. The court was required to determine whether the prosecution had fundamentally altered its case and whether this change caused prejudice to the defence that could not be remedied by further evidence. Consequently, the court had to decide whether a stay of proceedings should be granted.

The court considered whether the prosecution had fundamentally altered its case by presenting three different indictments, each based on varying instances. The court examined the timing of the final indictment, which was presented after the complainant had already given pre-trial evidence, to determine if this change prejudiced the defence in a manner that could not be cured by additional evidence. The court also considered the principles governing stays of proceedings, focusing on whether the defence had suffered prejudice that would make a fair trial impossible.

The court concluded that the prosecution had fundamentally altered its case by presenting different indictments, which led to prejudice to the defence. The court found that the defence suffered prejudice that could not be cured by further evidence, as the final indictment was presented after the complainant had already provided pre-trial evidence. Consequently, the court granted a stay of proceedings, recognising the significant prejudice to the defence and the impossibility of a fair trial under the circumstances presented.

The final orders of the court were detailed in paragraphs [64] to [67] of the judgment, wherein the court formally granted a stay of proceedings in favour of the respondent. The court's decision underscored the importance of maintaining consistency in the prosecution's case to ensure a fair trial and protect the rights of the accused.

Orders

Orders of the court

See [64]–[67].

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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