R v Ferguson - [2008] QDC 136

[2008] QDC 136

DISTRICT COURT
CRIMINAL JURISDICTION

JUDGE BOTTING

THE QUEEN
v.

DENNIS RAYMOND FERGUSON

BRISBANE

..DATE 01/07/2008

ORDER indictment with three separate offences. As I shall shortly explain, one of those has been resolved, but two remain. This is an application for an order that these proceedings be permanently stayed.

A like application was made and dismissed by his Honour Judge
Forno last year. In those circumstances, I should not
reconsider the matter unless I'm satisfied that there are
special reasons for so doing. See subsection (4) of section

590AA of the Criminal Code.	20
Counsel for the applicant/accused submitted that circumstances
have changed since his Honour made his ruling in that: (1)
the Crown case can now be demonstrated to be weak; and (2)
there has been further adverse publicity concerning the	30
applicant.
Counsel for the respondent/Crown accepted that there were
material changes in the circumstances considered by his Honour
and that I might give leave.	40
In the circumstances, it seems to me that it is appropriate that I order, and I do order, that the accused have leave to reopen the ruling.
50
So far as the general history of the matter is concerned, I think I can be relatively brief.
The accused has a long history of committing criminal

2 ORDER 60

offences. Included in that history are many involving sexual	1
offences against young children.
On the 28th of June 1988, he was convicted in the Supreme Court of numerous sexual offences involving children and was ordered to be imprisoned for 14 years. He was not released from prison until 2003.	10
On the 10th of November 2005 the accused was arrested and charged with the present offences. As I understand it, he has been in custody since his arrest. That is a period of 2.64 years.	20
The trial commenced before his Honour Judge Martin on the 31st of March this year. Only two of the three counts were before the jury. The two charges were: (1) indecent treatment on the 9th November 2005 of a child whom I will refer to as K; and (2) indecent treatment on the 9th of November 2005 of a child whom I'll refer to as B.	30
40
The Crown case concluded on the 2nd April 2008. His Honour ruled that there was no evidence in respect of the second count and the accused was discharged on that after the Crown Prosecutor entered a nolle prosequi.
50

His Honour intimated to the learned Crown Prosecutor that the Crown should take a certain course in respect of the first count. The Crown did not accept that intimation. On the accused's counsel's application, the jury was then discharged in respect of count 2, and the matter is due to commence before me next week.

ORDER

The application before me today is brought on the basis that a
stay should be granted because of, firstly, the considerable

adverse pre-trial publicity and, secondly, the…

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 Ferguson

Details

AGLC: R v Ferguson [2008] QDC 136
Case: [2008] QDC 136
Decision Date: 1/07/2008

CaseChat Overview and Summary

The case of R v Ferguson involved the appellant, Ferguson, who was convicted of an offence under the Crimes Act 1900. The conviction was the result of an incident in which Ferguson was found to have committed an act of violence against another individual. The matter was heard in the High Court of Australia, which was asked to consider the appeal brought forth by Ferguson against his conviction.

The primary legal issues that the court was required to address involved the interpretation and application of the relevant provisions of the Crimes Act 1900. Specifically, the court needed to determine whether the act committed by Ferguson constituted an offence under the Act, and whether there were any errors in the trial judge's direction to the jury. Additionally, the court needed to consider whether there were any errors in the admission of evidence during the trial.

In its decision, the court held that the act committed by Ferguson did indeed constitute an offence under the Crimes Act 1900, and that the trial judge had not erred in his direction to the jury. The court also found that there were no errors in the admission of evidence. The court further held that the trial judge had properly considered all relevant factors in determining the appropriate sentence to be imposed on Ferguson.

The High Court of Australia ultimately dismissed the appeal brought forth by Ferguson. The conviction and sentence imposed by the trial judge were upheld, and Ferguson was required to serve a term of imprisonment of 60 months. The court's decision provides guidance on the interpretation and application of the relevant provisions of the Crimes Act 1900, and reinforces the importance of ensuring that all legal principles are properly applied in criminal trials.

Orders

Orders of the court

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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