R v FVN - [2019] QDCPR 55

DISTRICT COURT OF QUEENSLAND

CITATION:

R v FVN [2019] QDCPR 55

PARTIES:

THE QUEEN

v

FVN

(Applicant)

FILE NO/S:

2351 of 2019

DIVISION:

Criminal

PROCEEDING:

Application pursuant to s 590AA Criminal Code Act 1899 (Qld)

ORIGINATING COURT:

Brisbane

DELIVERED ON:

7 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2019

JUDGE:

Barlow QC DCJ

ORDER:

1.   COUNT 23 ON INDICTMENT NUMBER 2351/19 BE TRIED SEPARATELY FROM THE OTHER COUNTS.

2.   COUNTS 4, 5, 7, 12, 13 AND 14 ON INDICTMENT NUMBER 2351/19 BE TRIED TOGETHER, BUT SEPARATELY FROM THE OTHER COUNTS.

3.   THE APPLICATION FILED ON 9 AUGUST 2019 OTHERWISE BE DISMISSED.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – JOINT OR SEPARATE TRIAL – SEVERANCE OF COUNTS –OFFENCES OF SAME OR SIMILAR CHARACTER – where the defendant is alleged, on one indictment, to have committed multiple offences of a sexual nature against five complainants – whether joinder of the sexual offences presents an unacceptable risk of prejudice or embarrassment in the defence of the allegations – whether evidence of each complainant is admissible in the trial of charges concerning the other complainants

CRIMINAL LAW – EVIDENCE – JUDICIAL; DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ADMISSIBILITY OF EVIDENCE – PREJUDICIAL EVIDENCE – whether the probative value of the evidence outweighs any prejudicial effect

Criminal Code 1899 (Qld) s 567(2), s 597A

Evidence Act 1977 (Qld) s 132A

Hoch v The Queen (1988) 165 CLR 292

Pfenning v The Queen (1995) 182 CLR 461

Phillips v The Queen (2006) 225 CLR 303

R v Bauer (2018) 359 ALR 359

R v Davidson [2019] QCA 120

R v McNeish [2019] QCA 191

R v Nibigira [2018] QCA 115

COUNSEL:

D Holliday for the applicant (defendant)

R Marks for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

The applicant defendant is charged on one indictment with a total of 31 offences alleged to have been committed against six complainants. Most of the offences are of a sexual nature (rape, attempted rape, carnal knowledge and indecent treatment of a child), while seven are for assault occasioning bodily harm. The offences allegedly occurred while each of the complainants was a child. Each of the complainants is a natural or stepchild of the defendant.

By this application, the defendant seeks an order that there be separate trials of the charges concerning each complainant, on the grounds that they have been impermissibly joined in one indictment because the indictment does not contain a series of offences of the same or a similar character,[1] or because the evidence in respect of each complainant is not admissible in the trial against the other complainants.[2]
[1]Criminal Code, s 567.
[2]Criminal Code, s 597A(1).

The defendant accepts that all the charges involving each complainant are properly joined in one indictment and should proceed to trial together. However, he submits that each complainant’s allegations should be tried separately from…

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 FVN

Details

AGLC: R v FVN [2019] QDCPR 55
Case: [2019] QDCPR 55
Decision Date: 7 November 2019

CaseChat Overview and Summary

The case of R v FVN involves a defendant facing multiple allegations of sexual offences against five different complainants, all of which are set out in a single indictment. The trial judge was tasked with determining the appropriate way to handle the joinder of these charges, including whether some counts should be tried separately due to potential prejudice or embarrassment to the defendant's defence.

The primary legal issues before the court were whether the joinder of these sexual offences on one indictment would create an unacceptable risk of prejudice or embarrassment for the defendant, and whether evidence from one complainant should be admissible in the trial of charges concerning other complainants. The court had to balance the probative value of the evidence against any potential prejudicial effect it may have.

The court found that while the probative value of the evidence from each complainant was significant, the potential for prejudice was also considerable, particularly given the sensitive nature of the offences. As such, the court determined that certain counts should be tried separately. Specifically, Count 23 was to be tried separately from the other counts, while Counts 4, 5, 7, 12, 13 and 14 were to be tried together but separately from the other counts. The court dismissed the remaining application, which sought further severance of counts.

In conclusion, the court issued specific orders for the severance of counts in the indictment to ensure a fair trial while managing the risk of prejudice. Count 23 was to be tried independently, and Counts 4, 5, 7, 12, 13 and 14 were to be grouped together for a separate trial from the rest. The remaining application was dismissed, concluding the court's determination on the joinder and severance of the charges.

Orders

Orders of the court

1. COUNT 23 ON INDICTMENT NUMBER 2351/19 BE TRIED SEPARATELY FROM THE OTHER COUNTS.

2. COUNTS 4, 5, 7, 12, 13 AND 14 ON INDICTMENT NUMBER 2351/19 BE TRIED TOGETHER, BUT SEPARATELY FROM THE OTHER COUNTS.

3. THE APPLICATION FILED ON 9 AUGUST 2019 OTHERWISE BE DISMISSED.

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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CITATION:	R v FVN [2019] QDCPR 55
PARTIES:	THE QUEEN v FVN (Applicant)
FILE NO/S:	2351 of 2019
DIVISION:	Criminal
PROCEEDING:	Application pursuant to s 590AA Criminal Code Act 1899 (Qld)
ORIGINATING COURT:	Brisbane
DELIVERED ON:	7 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	10 October 2019
JUDGE:	Barlow QC DCJ
ORDER:	1. COUNT 23 ON INDICTMENT NUMBER 2351/19 BE TRIED SEPARATELY FROM THE OTHER COUNTS. 2. COUNTS 4, 5, 7, 12, 13 AND 14 ON INDICTMENT NUMBER 2351/19 BE TRIED TOGETHER, BUT SEPARATELY FROM THE OTHER COUNTS. 3. THE APPLICATION FILED ON 9 AUGUST 2019 OTHERWISE BE DISMISSED.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – JOINT OR SEPARATE TRIAL – SEVERANCE OF COUNTS –OFFENCES OF SAME OR SIMILAR CHARACTER – where the defendant is alleged, on one indictment, to have committed multiple offences of a sexual nature against five complainants – whether joinder of the sexual offences presents an unacceptable risk of prejudice or embarrassment in the defence of the allegations – whether evidence of each complainant is admissible in the trial of charges concerning the other complainants CRIMINAL LAW – EVIDENCE – JUDICIAL; DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ADMISSIBILITY OF EVIDENCE – PREJUDICIAL EVIDENCE – whether the probative value of the evidence outweighs any prejudicial effect
Criminal Code 1899 (Qld) s 567(2), s 597A Evidence Act 1977 (Qld) s 132A Hoch v The Queen (1988) 165 CLR 292 Pfenning v The Queen (1995) 182 CLR 461 Phillips v The Queen (2006) 225 CLR 303 R v Bauer (2018) 359 ALR 359 R v Davidson [2019] QCA 120 R v McNeish [2019] QCA 191 R v Nibigira [2018] QCA 115
COUNSEL:	D Holliday for the applicant (defendant) R Marks for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent