R v Eqh

[2016] QDC 175

DISTRICT COURT OF QUEENSLAND

CITATION:

R v EQH [2016] QDC 175

PARTIES:

THE QUEEN

v

EQH

(defendant/applicant)

FILE NO/S:

CHAT1/2016 / DCR226/2015

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Charters Towers  

DELIVERED ON:

13 July 2016

DELIVERED AT:

Townsville

HEARING DATE:

02, 06, 10 and 24 June 2016

JUDGE:

Durward SC DCJ

ORDER:

1.   Application refused.

2.   No order as to costs.

CATCHWORDS:

LEGISLATION:

CASES:

CRIMINAL LAW – TRIAL – ADJOURNMENTS – trial adjourned for pre-hearing application re: admissibility of scientific evidence of DNA produced late by prosecution – whether circumstances amount to trial being discontinued and new trial ordered in terms of and for an application for costs from the Appeal Costs Fund Act 1973.

Appeal Costs Fund Act 1973 s 22(1)(c); Criminal Code (Qld) 1899 ss 592, 593 and 597C.

Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191; Perry v R (1975) WAR 33; Pivovarova v Michelsen [2016] QCATA 45; Re: Powell (1894) 6 QLJ 36; R v His Honour Judge Kimmins; ex Parte Attorney-General [1980] Qd R 524; R v Khoury [2003] QDC 235; R v Lacey & Lacey [2009] QDC 303; R v WAH [2009] QCA 263; R v Watts [2011] QDC 194.

COUNSEL:

Mrs. C Grant for the applicant/defendant

Ms. S Jerome for the respondent/Crown

SOLICITORS:

Anderson Telford Lawyers for the applicant/defendant

Office of the Director of Public Prosecutions for the respondent/Crown

1. The defendant has sought an indemnity certificate pursuant to s 22(1)(c) of the Appeal Costs Fund Act 1973 (“the Act”) arising from circumstances in which his trial in the District Court at Charters Towers, listed to commence before Judge and jury on 06 June 2016, was adjourned.

Charges

1. The defendant is charged with four offences, namely:

(a)        Count 1 – indecent treatment of a child under 16;

(b)        Count 2 – rape;

(c)        Count 3 – sexual assault; and

(d)        Count 4 – unlawful entry of a vehicle in the night time with intent to commit an indictable offence.

1. A number of preliminary hearings were conducted in the District Court at Townsville prior to the arraignment of the defendant in Charters Towers on 06 June 2016, when pleas of not guilty were entered. The trial had been variously estimated to take between two to three, or four, days depending on the extent of the prosecution evidence as was contemplated from time to time.

The adjournment of the trial

1. The circumstances giving rise to the application were created by the late production of new scientific evidence by the prosecution. There is no fault on the part of the prosecution for this having occurred because it arises from further Police investigation and evidentiary findings which were disclosed as soon as the prosecution received notice of them. The new evidence was the results of DNA testing which it is alleged implicates the defendant in at least counts 1 to 3 of the indictment. It appears, although I am not certain of this, that the issue of DNA evidence was raised well before the commencement of the proceedings and the prosecution had informed the defence that there was no DNA evidence implicating the defendant. The matter proceeded on that basis so far as both parties were concerned. However, it seems that either through a more diligent examination of relevant items and samples or the application of newer techniques of detection by the forensic laboratory, positive DNA evidence was able to be produced. It goes without saying that the production of this evidence, virtually on the eve of the trial, created a difficult situation for both parties. 

1. The trial was eventually adjourned and the indictment transferred from Charters Towers to the District Court in Townsville, for the purpose of a pre-trial hearing about the DNA evidence and an application - at least foreshadowed - to exclude it from the trial. 

1. The trial was adjourned without a jury having been empanelled and after the arraignment of the defendant. 

1. The question for me to resolve, in the discreet circumstances of this particular case, is whether the adjournment of the trial per se is, in effect, a “discontinuance” of the trial and the ordering of a new trial, in the context of s 22(1)(c) of the Act.

History

1. It is necessary to set out the forensic progress of the case in order to provide the context to which I have referred.

·     11 June 2015  Indictment presented in Townsville.

·     07 August 2015  Mention – pre-recording listed for 21

September 2015 for two Affected Child Witnesses (“ACW’s”), one residing in Tasmania.

·     02 September 2015                  Mention - pre-recording hearing 21 September

2015 vacated and pre-trial application, if to proceed, substituted.

·     21 September 2015                  Pre-trial application granted with respect to

disclosure of prosecution witness conference notes on agreed terms; and application about disclosure of s 21AK recording and transcript of previous allegations by complainant concerning a different defendant, adjourned part-heard to 24 September 2015.

·     24 September 2015                  Mention - adjournment of pre-trial

application.

·     25 September 2015                  Balance of pre-trial application resolved on

draft orders and written reasons reserved. First part of orders made on 21 September 2015 complied with by the Crown. Pre-recording of evidence listed for DTBF in the week commending 06 October 2015.

·     01 October 2015   Mention – pre-recording to proceed on 07

October 2015 for two ACW’s, one to give evidence by video link from Courthouse in Burnie, Tasmania.

·     01 October 2015   Mention – Department of Communities, Child

Safety and Disability Services documents to be subpoenaed; Pre-recording of hearing for 07 October 2015 adjourned.

·     02 October 2015   Reserved reasons for judgment delivered.

·     04 November 2015                  Listed for mention on 23 November 2015.

Orders for inspection and copying of subpoenaed documents from Department of Communities, Child Safety and Disability Services.

·     02 December 2015                   Mention – matter remains listed for pre-

recording of evidence on 08 December 2015.

·     08 December 2015                   Pre-recording of evidence of both ACW’s

completed. Listed for pre-trial hearing of application regarding contested editing of complainant child’s Police interview and pre-recorded evidence.

·     05 February 2016   Application to exclude some evidence

granted. Listed as trial #1 commencing 06 June 2016 at Charters Towers.

·     25 May 2016   Mention – trial listing remains extant.

Application by prosecution to adduce video link evidence refused and witness to appear in person at Charters Towers. Application to edit evidence from pre-recordings granted, OAPD. Joint application to edit pre-recorded evidence by way of exclusion of some further parts of pre-recorded evidence granted, OAPD, in respect of that and other evidence.

·     02 June 2016   Mention – DNA evidence now produced.

Defendant foreshadows application to permanently stay indictment or exclude the DNA evidence. Application adjourned to 06 June 2016 at Charters Towers.

·     06 June 2016   Application by defendant to exclude DNA

evidence or for a stay of the indictment heard in summary outline. Indictment amended in one particular in count 4 and defendant arraigned and enters pleas of not guilty to all four counts. Defendant makes written and oral submissions in support of application. Respondent not required to make submissions on application to exclude the evidence. Submissions for stay of indictment adjourned to follow receipt of the s 95A certificate from the forensic witness. Application to exclude the DNA evidence pursuant to s 130 Evidence Act 1977 refused. Balance of application adjourned to DTBF in sittings at Charters Towers in week of 06 June 2016.

·      10 June 2016   Certificate pursuant to Evidence Act not ready.

Indictment transferred to Townsville for continuation of balance of pre-trial application and evidence in respect of the application. Defendant’s appearance excused for mention on 24 June 2016 at Townsville.

·     24 June 2016:   Application by defendant for costs pursuant to

the Act – parties given liberty to provide further material. Decision on application reserved.

The current position

1. The matter currently remains at the stage of a part-heard pre-trial application for a stay of the indictment. If that application is successful the indictment will remain stayed in Townsville.  If that application is refused, the indictment is to be transferred to Charters Towers for listing at the next call over for the trial to proceed in the November sittings. 

The legislation

1. Section 22 of the Act provides:

“22       Abortive proceedings and new trials after proceedings discontinued

(1)Where after the commencement of this Act –

…

(c) the hearing of any civil or criminal proceeding is discontinued and a new trial ordered by the presiding judge, magistrate or justice for a reason not attributable in any way to the act, neglect or default, in the case of civil proceedings, of any of the parties thereto or their legal representatives, or, in the case of criminal proceedings, of the accused or the accused’s legal representatives, and the presiding judge, magistrate or justice grants a certificate (which certificate the presiding judge, magistrate or justice is hereby authorised to grant) –

…

(ii) in the case of criminal proceedings – to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of the accused or the accused’s legal representatives;

…

any party to the civil proceedings are the accused in the criminal proceedings or the appellant, as the case may be, who pays or is ordered to pay additional costs or on whose behalf additional costs are paid or ordered to be paid by reason of the new trial shall be entitled to be paid from the fund such costs as the board considers have been reasonably incurred by the person or on the person’s behalf in the proceedings before they were rendered abortive or the conviction was quashed or the hearing of the proceedings was discontinued, as the case may be.”

1. The requirements for the grant of an indemnity certificate in s 22 of the Act in respect of a criminal proceeding are:

·     The hearing of any criminal proceeding is discontinued; and

·     A new trial ordered; and

·     For a reason not attributable in any way to the act, neglect or default of the accused or his legal representatives.

The issue

1. The trial was adjourned and not specifically discontinued. Nor was a new trial ordered. However, Mrs Grant submitted that the circumstances in this case where the trial was ready to proceed on 06 June 2016, but was not able to proceed because of the late disclosure of potentially critical DNA evidence implicating the defendant in the commission of at least three of the four offences, has created a circumstance in which the defendant has incurred, paid or is obliged to pay legal fees and outlays with respect to his trial and that the adjournment of the trial was not something for which he or his lawyers were responsible in any way, those circumstances thus amounting to a discontinuance of the trial.  

1. The defendant had not been arraigned until the morning of 06 June 2016 at the District Court at Charters Towers. However, for the purposes of this application, I do not consider that to be a critical matter.

1. The resolution of this application thus depends upon the meaning of the words “adjournment” and “discontinued”. 

Discussion

1. The Criminal Code (Qld) (“the Code”) in sections 592 and 593 give a Court power to adjourn a trial and direct that it be heard at a later time, where the defendant has not been arraigned. Section 597C of the Code provides that a trial is deemed to begin when the defendant is arraigned on the indictment: see R v WAH [2009] QCA 263, at [22]. In that regard, I consider that an adjournment of a trial is not dependent upon arraignment and in order for adjournment to be made prior to or following an arraignment in circumstances where a trial is not thereby “discontinued”.

1. In that respect, I agree with the observations of his Honour Judge Rafter SC in R v Lacey & Lacey [2009] QDC 303, at [22]. I also agree with his Honour’s observations distinguishing an “adjournment” from a “discontinuance” of a trial.

1. I am fortified in that view by reference to a number of other authorities. In R v Khoury [2003] QDC 235 his Honour Judge Hoath considered whether an adjournment was a “discontinuance” of a trial, in circumstances where a trial was adjourned on several occasions because the prosecution was not ready or prosecution witnesses were unavailable or satisfactory particulars of the subject fraud offence were not able to be provided and there was in the event likely to be a significant delay in the prosecution’s compliance with that latter requirement. The trial was adjourned to a date to be fixed several months ahead and counsel for the defendant made an application for an indemnity certificate under the Act. His Honour wrote that:

“[10] The accused’s entitlement to an Indemnity Certificate is dependent on my order adjourning the trial being a discontinuance of the proceedings and the ordering of a new trial.”

1. His Honour considered a number of authorities but concluded (at [15]) that they did not provide “a settled uniform line of authority or reasoning that can be applied in interpreting s 22(1)(c)” of the Act.

1. His Honour referred to the established general rule in criminal cases that the Crown neither receives nor pays costs. He cited Griffith CJ in Re: Powell (1894) 6 QLJ 36, at p 38; and to Jackson CJ in Perry v R (1975) WAR 33, at 35. His Honour concluded that there was in Queensland no provision entitling either the Crown or the defendant to recover costs on an adjournment: R v His Honour Judge Kimmins; ex parte Attorney-General [1980] Qd R 524. His Honour acknowledged that the Act abrogated the general rule and considered the question of whether adjournment amounted to a discontinuance, writing at [21]:

“It is almost a daily occurrence in criminal lists that proceedings are adjourned at the outset for one reason or another.  It is never understood in ordinary legal parlance that those proceedings have been discontinued.  Discontinued proceedings can only be resumed by a ‘new trial’.  Adjourned proceedings are not continued or proceeded with on resumption by a ‘new trial’.”

1. His Honour continued at [22]:

“Interpreting ‘discontinued’ in the ordinary sense of the word and as meaning something quite different from an adjournment, does not result in absurdity, repugnance or inconsistency with the intention of the legislation.  If proceedings are discontinued, substantial costs may be involved and those costs are entirely wasted because the proceedings have to be commenced again.  That reflects the intention of the legislature rather than intention to recompense an accused for generally not substantial costs when a matter is adjourned.  See Kiefel J in Official Trustee in Bankruptcy v Forrest (2000) FCA 907.”

1. Further, it seems to me (as his Honour observed at [24] in Khoury) that if the Legislature had intended the Act to cover “adjournments” it could have made that absolutely clear by inserting the words “or adjournment” after the word “discontinued” and perhaps, in the context of the Queensland legislation, the words “or continued proceeding” after the words “new trial”. However, the relevant section in the Act would read in a rather convoluted way if the section had been written in the way that I have just described.

1. That view is further fortified by the observations of his Honour Judge Rackemann in R v Watts [2011] QDC 194, where his Honour dealt with an application for an indemnity certificate in the circumstance of a criminal trial being adjourned on the morning that it was to commence, upon the prosecution informing the Court that an essential witness was unable to attend because of a recent illness. The trial was adjourned before any proceeding on that day had commenced. His Honour said (at pp 2-3):

“Subparagraph (c)… is relatively limited to circumstances in which the hearing of the criminal proceeding is discontinued and a new trial is ordered.  The question is whether what happened on Monday falls within that description.  It was submitted on behalf of the applicant for a certificate that the expression ‘discontinued’ is simply a synonym for an adjournment and that the provision applies. That submission applies in the face of the approach taken by single judges of this Court in the past…”

His Honour then referred to R v Khoury (supra) and R v Lacey & Lacey (supra). 

1. His Honour concluded his reasons in the following way:

“The expression ‘discontinued’ carries with it, in my view, the notion that a hearing has commenced but not been able to continue.  That interpretation sits well with the words that follow, which refer to a ‘new’ trial being ordered. 

In this case, the trial never commenced and that no new trial was ordered.  All that happened was that the hearing date for the trial was adjourned to another day, the trial not having commenced.”

1. See also the observations of Judge Horneman-Wren SC, Deputy President of QCAT, in Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191, at [74] to [82]. His Honour referred to R v Lacey & Lacey (supra) in the course of his decision in dismissing an application for an indemnity certificate; and to the observations of Justice Thomas, President of QCAT, in Pivovarova v Michelsen [2016] QCATA 45, at [12] to [22]. The President referred to Judge Horneman-Wren SC’s decision in Nursing and Midwifery Board of Australia v Clydesdale (supra) in finding that the appeal hearing which he was determining had not been “discontinued” in terms of the Act.

1. All of the authorities to which I have made reference are not binding on me, but nevertheless are of persuasive force. I have already expressed agreement with the observations made by Judge Rafter SC and I agree also with the observations made by Judge Hoath and Judge Rackemann. The authorities in my view provide support for my decision in this case.

Resolution

1. Whilst the defendant is in the unfortunate position of having his trial adjourned and of having incurred the costs of the part-heard pre-trial application, including the two occasions on which it was mentioned - the first foreshadowing the application and the second adjourning the unresolved part of it for further hearing - he is not in a position to be recompensed under the provisions of the Act. His trial was adjourned. It was not discontinued. No new trial has been ordered. In those circumstances, an indemnity certificate cannot be issued.

1. In Mrs Grant’s oral submissions I understood her to imply that I should simply make an indemnity certificate so that an application could be made to the Appeal Costs Fund Board. The inference in that submission is that it would then be a matter for the Board to resolve as to whether it was appropriate to make an award of costs in favour of the defendant. However, if that inference is as I understand it to be, I do not agree with it. It is a matter for me as presiding Judge in the trial to make an indemnity certificate, if the provisions of the Act are complied with. It is not appropriate for this Court to pass the responsibility for determining whether a certificate is properly issued or not, to a Statutory Board. It is a matter for judicial determination.

Conclusion

1. Whilst one can sympathise with the defendant in the circumstances that I have described, the simple fact is that he is not able to take advantage of the provisions of the Act in the circumstances in this case. It follows that the application must be refused.

Orders

Application refused. 1.          

No order as to costs.2.