R v. H - [2007] QDC 13

DISTRICT COURT OF QUEENSLAND

CITATION:	R v H [2007] QDC 013
PARTIES:	R v H
FILE NO/S:	Indictment No 358 of 2006
DIVISION:	Criminal Jurisdiction
PROCEEDING:	Application for Stay of Charges on Indictment and
ORIGINATING COURT:	District Court, Ipswich
DELIVERED ON:	21 February 2007
DELIVERED AT:	District Court, Ipswich
HEARING DATE:	19 February 2007
JUDGE:	Kingham DCJ
ORDERS:	The application to stay counts 1 and 4 and the application to rule as inadmissible evidence of uncharged acts are both declined. 1.
CATCHWORDS:	CRIMINAL LAW – TRIAL – Jury discharged without verdict – Retrial – Where application to reopen the rulings of the amendment of the indictment and admission of evidence in relation to uncharged acts made during the course of the trial. CRIMINAL LAW - TRIAL – Stay of indictment – Amendment to wording of charges in Indictment – Where dates of maintaining period and indecent treatment amended – Exercise of discretionary power – Where alibi notice contended as reason for amendment to dates – Where original indictment did not reflect the evidence of complainant – Where unlikely the defendant would suffer any prejudice upon retrial. CRIMINAL LAW – TRIAL – Uncharged acts – Relationship evidence – Where probative value outweighs potential prejudicial effect. Jury Act 1995 (Qld) R v A [2001] QCA 516 - applied R v BCC [2006] QCA 435 - cited R v Cossey (1991) 1 NZLR 566 - cited R v Jacobs (1991) QCA 47 - cited R v Sheehy (2005) 1 QdR 418 - applied R v Smith; ex-parte Attorney General [2000] QCA 443 - applied R v Tully [2006] HCA 56 - cited R v WO [2006] QCA 21 - applied R v ZSK [2006] QDC 016 - cited Wilson v The Queen (1970) 123 CLR 334 – applied
COUNSEL:	T. Ryan for the Defendant R. Carlos for the Crown
SOLICITORS:	Chris Wlodarczyk & Co for the Defendant Office of the Director of Public Prosecutions (Queensland) for the Crown

HER HONOUR: Thank you. This is my decision in relation to an application made on behalf of the Defendant under section 590AA.

The Defendant faces a retrial on a four-count indictment. Count one alleges he maintained an unlawful sexual relationship with the complainant from March 1992 until the 1st of February 2000. Counts two to four allege three unlawful and indecent assaults, two in March of 1992 and one in a period between December 1999 and the 1st of February 2000.

The jury empanelled in October 2006 to try the charges was discharged after the complainant gave evidence. The defendant has applied, in effect, to reopen two rulings made by the learned trial Judge who presided at the trial. The rulings were: one, to amend the indictment to change the date in counts one and four from the 2nd of January to the 1st of February 2000; and two, to allow the reception of relationship evidence from the complainant.

These rulings were made in the course of the trial, not pursuant to section 590AA. 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. H

Details

AGLC: R v H [2007] QDC 13
Case: [2007] QDC 13
Decision Date: 21 February 2007

CaseChat Overview and Summary

In the case of R v. H, the respondent was on trial for various criminal charges, including maintaining a sexual relationship with a child and indecent treatment. The trial took place in a court of criminal jurisdiction, and the jury was discharged without reaching a verdict. Consequently, the respondent applied for the reopening of the rulings on the amendment of the indictment and the admission of evidence concerning uncharged acts that allegedly occurred during the trial. The court was required to decide whether the amendment to the indictment and the admission of evidence regarding uncharged acts were appropriate under the circumstances.

The court examined the propriety of the amendment to the indictment, specifically the alteration of the dates of the maintaining period and the indecent treatment. The respondent argued that the amendment was necessitated by the alibi notice, which was not reflected in the original indictment. The court considered whether the exercise of the discretionary power to amend the indictment was justified and whether the respondent would suffer any prejudice as a result of the amendment. The court determined that the amendment was justified and that it was unlikely the respondent would suffer any prejudice upon retrial.

The court also evaluated the admissibility of evidence concerning uncharged acts. The respondent argued that the evidence should be excluded due to its prejudicial effect. However, the court found that the probative value of the evidence outweighed any potential prejudicial effect. The court held that the evidence was relevant to the respondent's relationship with the victim and the circumstances of the alleged offences. Consequently, the court declined both the application to stay counts 1 and 4 of the indictment and the application to rule the evidence of uncharged acts as inadmissible.

The final orders of the court were that the application to stay counts 1 and 4 of the indictment and the application to rule the evidence of uncharged acts as inadmissible were both declined. This decision allows the trial to proceed with the amended charges and the admission of evidence regarding uncharged acts, which the court deemed relevant to the respondent's relationship with the victim and the circumstances of the alleged offences.

Orders

Orders of the court

The application to stay counts 1 and 4 and the application to rule as inadmissible evidence of uncharged acts are both declined. 1.

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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