R v Ford; ex parte - [2006] QCA 440

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ford; ex parte A-G (Qld) [2006] QCA 440

PARTIES:

R
v
FORD, Garry Robin
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

FILE NO/S:

CA No 189 of 2006
DC No 1253 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 668A Criminal Code

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2006

JUDGES:

Jerrard and Keane JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The questions referred to this Court are answered as follows:

Question 1: No
Question 2: No

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - MISCELLANEOUS MATTERS -QUEENSLAND - CASE STATED AND REFERENCE OF QUESTION OF LAW - indictment presented in District Court alleging against respondent nine counts of indecent treatment of a child under 16, one count permitting a person not an adult to have carnal knowledge of him by anal intercourse, one count of indecent treatment of a child under 16 as alternative to count of attempted carnal knowledge by anal intercourse of a person not an adult – same complainant in each case - counsel for respondent objected to presentation of the indictment - indictment included six counts on which respondent had been committed for trial and six counts which prosecution sought to add ex officio to the previous six counts - whether, if an indictment has been presented against a person as required by
s 590 of Criminal Code1899 (Qld) and six months have passed since that person was committed for trial, does that section preclude the Crown from presenting and proceeding upon another indictment containing the counts included in the original indictment and further counts upon which the person has not been committed for trial? - whether, if an indictment has been presented against a person as required by s 590 of the Criminal Code and six months have passed since that person was committed for trial, does that section preclude the amendment of the indictment by including further counts upon which the person has not been committed for trial?

Criminal Code 1899 (Qld), s 554, s 560, s 561, s 572, s 590,
s 668A

Barton v The Queen (1980) 147 CLR 75, cited
Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1970) 122 CLR 504, cited
Jago v District Court of New South Wales (1989) 168 CLR 23, cited
Re Jenkin [1994] 1 Qd R 266, considered
R v Foley [2002] QCA 422; [2003] 2 Qd R 88, considered

COUNSEL:

C W Heaton for the Attorney-General
P J Callaghan SC, with J A Fraser, for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the Attorney-General
Richard Gray & Associates for the respondent

JERRARD JA: In this matter I have read the reasons for judgment of Keane…

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 Ford; ex parte

Details

AGLC: R v Ford; ex parte [2006] QCA 440
Case: [2006] QCA 440
Decision Date: 3 November 2006

CaseChat Overview and Summary

The matter before the Court was an appeal against a decision of the District Court of Queensland, concerning the indictment presented against the respondent, Ford. Ford was indicted on nine counts of indecent treatment of a child under 16, including one count of permitting a person not an adult to have carnal knowledge of him by anal intercourse, and one count of indecent treatment of a child under 16 as an alternative to the count of attempted carnal knowledge by anal intercourse of a person not an adult. The complainant was the same in each case. The central issue for the Court was whether an indictment could include counts that were not part of the original six counts on which the respondent had been committed for trial, and which the prosecution sought to add ex officio. The Court was required to determine if these additional counts were permissible under the relevant Queensland legislation.

The Court considered the provisions of the Criminal Code and the Criminal Procedure Act, and concluded that the additional counts presented in the indictment were not permissible. The Court held that an indictment should only include the counts on which the respondent had been committed for trial, and that the prosecution could not add counts ex officio. The Court reasoned that the statutory provisions did not allow for the inclusion of additional counts not included in the original commitment, and that such an action would be an abuse of process. The Court further held that the inclusion of the additional counts in the indictment was a fundamental defect that rendered the entire indictment invalid.

In light of the Court's determination, the questions referred to the Court were answered in the negative. The Court found that the additional counts presented in the indictment were not permissible under the relevant legislation, and that the inclusion of these counts constituted a fundamental defect in the indictment. The Court's decision effectively nullified the indictment against Ford, and the respondent was not required to face the additional charges.

Orders

Orders of the court

The questions referred to this Court are answered as follows:

Question 1: No

Question 2: No

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ford; ex parte A-G (Qld) [2006] QCA 440
PARTIES:	R v FORD, Garry Robin (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
FILE NO/S:	CA No 189 of 2006 DC No 1253 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Reference under s 668A Criminal Code
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	29 September 2006
JUDGES:	Jerrard and Keane JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The questions referred to this Court are answered as follows: Question 1: No Question 2: No
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - MISCELLANEOUS MATTERS -QUEENSLAND - CASE STATED AND REFERENCE OF QUESTION OF LAW - indictment presented in District Court alleging against respondent nine counts of indecent treatment of a child under 16, one count permitting a person not an adult to have carnal knowledge of him by anal intercourse, one count of indecent treatment of a child under 16 as alternative to count of attempted carnal knowledge by anal intercourse of a person not an adult – same complainant in each case - counsel for respondent objected to presentation of the indictment - indictment included six counts on which respondent had been committed for trial and six counts which prosecution sought to add ex officio to the previous six counts - whether, if an indictment has been presented against a person as required by s 590 of Criminal Code1899 (Qld) and six months have passed since that person was committed for trial, does that section preclude the Crown from presenting and proceeding upon another indictment containing the counts included in the original indictment and further counts upon which the person has not been committed for trial? - whether, if an indictment has been presented against a person as required by s 590 of the Criminal Code and six months have passed since that person was committed for trial, does that section preclude the amendment of the indictment by including further counts upon which the person has not been committed for trial? Criminal Code 1899 (Qld), s 554, s 560, s 561, s 572, s 590, s 668A Barton v The Queen (1980) 147 CLR 75, cited Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1970) 122 CLR 504, cited Jago v District Court of New South Wales (1989) 168 CLR 23, cited Re Jenkin [1994] 1 Qd R 266, considered R v Foley [2002] QCA 422; [2003] 2 Qd R 88, considered
COUNSEL:	C W Heaton for the Attorney-General P J Callaghan SC, with J A Fraser, for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the Attorney-General Richard Gray & Associates for the respondent