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R v Girvan (No 2)

R v Girvan (No 2)

Case [2013] ACTSC 138 17 July 2013

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R v WILLIAM THOMAS GIRVAN (NO 2)
[2013] ACTSC 138 (17 July 2013)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Indictment – whether indictment may be amended - s 264 Crimes Act 1900 (ACT)

CRIMINAL LAW – offence of act of indecency on a child under the age of 16 years

Crimes Act 1900 (ACT), ss 61, 264
Supreme Court Act 1933 (ACT), s 68
Evidence Act 2011 (ACT), ss 60, 136
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2B, ss 40, 43

Ayles v The Queen (2008) 232 CLR 410
Borodin v The Queen [2006] NSWCCA 83
Fleming v The Queen (1998) 197 CLR 250
Gillard v The Queen [2013] ACTCA 17
MM v The Queen [2011] NSWCCA 262
Rv DF (No 3) [2013] ACTSC 22
R v DM [2010] ACTSC 137
R vDossi (1918) 13 Cr App R 158
R v Fahey & Ors [2002] 1 Qd R 391
R v Forsti [2010] ACTSC 85
R v Pfitzner (1976) 15 SASR 171
R v Radley (1973) 58 Cr App R 394
R v Shevlin [2013] ACTSC 88
R v Suarwata [2008] ACTSC 140
R v Westerman (1991) 55 A Crim R 353

No. SCC 13 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 17 July 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 13 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

R
v
WILLIAM THOMAS GIRVAN

ORDER

Judge:  Refshauge J
Date:  17 July 2013
Place:  Canberra

THE COURT ORDERS THAT:

Leave be granted to amend the indictment.

The indictment be amended by omitting “1^st day of January 2004” in each count in the indictment and substituting “22^nd day of June 2001” in each case.

AND THE COURT FINDS THAT:

William Thomas Girvan is guilty of committing between 1 January 2001 and 23 March 2006 an act of indecency on KMA who was under the age of 16 years.

William Thomas Girvan is guilty of committing between 1 January 2001 and 23 March 2006 an act of indecency on KMA who was under the age of 16 years.

On 23 September 2009, the complainant, to whom I shall refer as KMA, was interviewed by two police officers and stated that the accused, William Thomas Girvan, to whom I will refer as Mr Tom Girvan, had forced her to touch his genitals on two occasions in her home.

As a result, Mr Tom Girvan was charged with two counts of committing an act of indecency on KMA.

On 13 July 2011, he elected under s 68B of the Supreme Court Act 1933 (ACT) to be tried by a judge alone.

On 2 August 2012, the evidence of KMA was given at a pre-trial hearing conducted under Div 4.2B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act). Part of the evidence consisted of the interview that KMA had with police on 23 September 2009 which had been recorded under Div 4.2A of the same act.

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 Girvan (No 2)

Details

AGLC: R v Girvan (No 2) [2013] ACTSC 138
Case: [2013] ACTSC 138
Decision Date: 17 July 2013

CaseChat Overview and Summary

The case of R v Girvan (No 2) was heard in the relevant court and involved the defendant, Girvan, who was indicted on charges related to an act of indecency on a child under the age of 16 years. The primary issue before the court was whether the indictment could be amended to change the date of the alleged offence, as the initial date specified in the indictment did not align with the evidence presented. The court was required to determine if the amendment to the indictment was permissible under section 264 of the Crimes Act 1900 (ACT).

The court considered the nature of the amendment sought and whether it was substantive or formal. A formal amendment, such as correcting a date, would generally be permissible under the statute, whereas a substantive amendment, which changes the nature of the offence, would not. In this instance, the change of date was deemed to be a formal amendment, as it did not alter the essence of the charges against the defendant. Consequently, the court held that the amendment was appropriate and allowed the amendment to the indictment.

As a result of the court's decision, leave was granted to amend the indictment. The specific amendment involved changing the date of the alleged offence from the 1st day of January 2004 to the 22nd day of June 2001. This adjustment was made in each count of the indictment to ensure accuracy and alignment with the evidence presented during the trial. The final orders of the court were that the indictment be amended by omitting the original date and substituting the correct date in each count.

Orders

Orders of the court

1. Leave be granted to amend the indictment.

2. The indictment be amended by omitting “1st day of January 2004” in each count in the indictment and substituting “22nd day of June 2001” in each case.

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.

Citations

AGLC Citation

R v Girvan (No 2) [2013] ACTSC 138

Most Recent Citation

McLaren v Chief of Navy [2013] ADFDAT 5

Cases citing this decision · 7 of 7 shown

R v Connors (No 3)
[2022] ACTSC 391

…67] 2 NSWR 329; 86 WN (Pt 1) (NSW) 272 R v Donnelly [2021] ACTSC 336 R v Forrest (No 2) [2017] ACTSC 83 R v Foster [2021] ACTSC 229 R v Girvan (No 2) [2013] ACTSC 138 R v Hancock [2021] ACTSC 52 R v Huynh [2005] NSWCCA 220 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lovelock [2020] ACTSC 376 R v Massey (No 1) [2020] A…
R v Smith
[2022] ACTSC 288 Para 15

…173. Of course, an amendment should not be made where a party would be prejudiced: Gillard v The Queen [2013] ACTCA 17. See also R v Girvan (No 2) [2013] ACTSC 138 at [28]–[47].…
Monaghan v Calatzis
[2021] ACTSC 4

…0] ACTCA 17 Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 R v Coventry [1938] HCA 31; 59 CLR 633 R v Galvin [1998] ACTSC 104 R v Girvan (No 2) [2013] ACTSC 138 R v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543 R v Masina (No 3) [2020] ACTSC 154 Shepherd v The Queen [1990] HCA 56; 170 CLR 573 R v Tangye (19…
N Langdown & B Moss v BI
[2020] ACTMC 6 Para 1

…I have considered the authorities which set out the test of what constitutes the legal definition of an act of indecency. See R v Girvan (No 2) [2013] ACTSC 138 per Refshauge J citing his Honour’s own decision in R v DM [2010] ACTSC 137 at [219]-[221] in relation to the test of whether an act is indecent: “The mean…
Nicole Linden v KA
[2020] ACTMC 2 Para 1

…Defence Counsel referred to R v Girvan (No 2) [2013] ACTSC 138 per Justice Refshauge citing his own decision in R v DM [2010] ACTSC 137 at [219]-[221] in relation to the test of whether an act is indecent:…
R v Amir Reza Abdolali Sarbandi (No 2)
[2014] ACTSC 34

…33 Nguyen v The Queen (2012) 267 FLR 344 Phillips v The Queen (1985) 159 CLR 45 R v Ciantar (2006) 16 VR 26 R v DM [2010] ACTSC 137 R v Girvan (No 2) [2013] ACTSC 138 R v Shevlin [2013] ACTSC 88 The Queen v Hillier (2007) 228 CLR 618…
McLaren v Chief of Navy
[2013] ADFDAT 5 Para 10

…ensive to common propriety.” More recently, Refshauge J has restated and applied the same approach in R v Girvan (No 2) [2013] ACTSC 138 at [130].…

View all 7 citing cases →

Cases cited in this decision · 16 of 16 shown

R v Shevlin
[2013] ACTSC 88 Para 1

…ndamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137 at [8]-[9]; R v Shevlin [2013] ACTSC 88 at [10]-[20]. The directions I take into account are as follows.…
Gillard v The Queen
[2013] ACTCA 17 Para 1

…Nevertheless, it is necessary, as the Court of Appeal pointed out in Gillard v The Queen [2013] ACTCA 17 at [65]-[69], to identify the prejudice or unfairness that the amendment is said to cause. As to what will amount to such unfairness, Howie J observed in Borodin v The Queen [2006] NSWCCA 83 at [25] in respect…
R v DF (No 3)
[2013] ACTSC 22 Para 1

…A date may, however, be important because of the age of a complainant is a critical issue as in R v DF (No 3) [2013] ACTSC 22. It would also be important if the case were to be conducted on the basis that the accused had an alibi for the charged date as suggested by Bray CJ in R v Pfitzner (1976) 15 SASR 171 at 18…
MM v R
[2011] NSWCCA 262 Para 1

…This is very much like MM v The Queen [2011] NSWCCA 262, where the accused’s case there was that he did not assault the complainant at any time while she was in her mother’s care as he had no opportunity to do so.…
R v DM
[2010] ACTSC 137 Para 1

…at I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137 at [8]-[9]; R v Shevlin [2013] ACTSC 88 at [10]-[20]. The directions I take into account are as follows.…
R v Taylor
[2010] ACTSC 121 Para 11

…221.This approach has been followed in this Territory: R v Morton (1998) 143 FLR 268 (at 275); R v Taylor [2010] ACTSC 121 (at [11]).…
R v Forsti
[2010] ACTSC 85 Para 1

…nts have been permitted in this jurisdiction after a complainant has completed giving evidence. See R v Suarwata [2008] ACTSC 140 at [39]; R v Forsti [2010] ACTSC 85 at [78]-[79].…
R v RADLEY
[2010] NSWCCA 64 Para 1

…I have also considered whether it is necessary to re-arraign the accused. Relying on R v Radley (1973) 58 Cr App R 394 at 404 and Ayles v The Queen (2008) 232 CLR 410 at 436; [83], both followed in Gillard v The Queen at [75]-[77]. I do not consider that it is necessary to re-arraign the accused.…
R v Pfitzner
[2009] NSWSC 1267 Para 1

…be important if the case were to be conducted on the basis that the accused had an alibi for the charged date as suggested by Bray CJ in R v Pfitzner (1976) 15 SASR 171 at 185, though even there it was accepted that amendment may be permitted so long as the accused was given appropriate opportunity to meet it, such a…
R v Wayan Suarwata
[2008] ACTSC 140 Para 1

…Amendments have been permitted in this jurisdiction after a complainant has completed giving evidence. See R v Suarwata [2008] ACTSC 140 at [39]; R v Forsti [2010] ACTSC 85 at [78]-[79].…
Ayles v The Queen
[2008] HCA 6 Para 1

…I have also considered whether it is necessary to re-arraign the accused. Relying on R v Radley (1973) 58 Cr App R 394 at 404 and Ayles v The Queen (2008) 232 CLR 410 at 436; [83], both followed in Gillard v The Queen at [75]-[77]. I do not consider that it is necessary to re-arraign the accused.…
Borodin v R
[2006] NSWCCA 83 Para 1

…y the prejudice or unfairness that the amendment is said to cause. As to what will amount to such unfairness, Howie J observed in Borodin v The Queen [2006] NSWCCA 83 at [25] in respect of the statutory power to amend an indictment in New South Wales which is substantially similar to s 264 of the Crimes Act 1900 (A…
R v Morton
[2001] NTCCA 6

…221.This approach has been followed in this Territory: R v Morton (1998) 143 FLR 268 (at 275); R v Taylor [2010] ACTSC 121 (at [11]).…
Fleming v The Queen
[1998] HCA 68 Para 1

…he court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. In Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) the High Court, in considering very similar New South Wales legislation, stated that it is necessary for the judge to expose the reaso…
R v Dossi
[1995] QCA 204 Para 1

…The power to amend an indictment is a wide power as to the amendment and when it may be made. In R v Dossi (1918) 13 Cr App R 158 ( Dossi ), it was made when the jury pronounced its verdict. The fundamental limit is that no amendment should be permitted where injustice or irreparable prejudice is caused to the accu…
[1989] AC 28
[1989] AC 28

…219.The meaning of indecency is now well-known. In R v Court [1989] AC 28 (at 42), Lord Ackner said: The judge in assisting the jury in his summing up as to the meaning of an indecent assault adopted, inter alia, a definition used by Professor Glanville Williams, Textbook of Criminal Law, 2nd ed (1983), p 231:…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
264, 61 3 mentions (from Para 1)
Evidence Act 2011 (ACT)
136, 60 3 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
68 2 mentions (from Para 1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
1 mention (from Para 1)