SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Case Stated)
R v H, GJ
[2014] SASCFC 34
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Bampton)
10 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Following the refusal of a stay of proceedings application, an application was made to the Full Court for an order requiring the District Court to refer certain questions to it for consideration and determination pursuant to s 350(5) of the Criminal Law Consolidation Act 1935 (SA). The applicant was awaiting trial in the District Court at the time of making this application.
Held (the Court):
It is important that the criminal trial process is not fragmented. This principle weighs heavily against referring a question on an issue antecedent to trial to this Court. It is also as important to the community, as it is to an accused, that allegations are resolved in open court so that evidence on which an offender is either convicted or acquitted is a manner of public record (at [27]).
The District Court Judge provided extensive reasons which, on their face, correctly refer to applicable legal principles and relate those principles to the applicant’s particular circumstances. These reasons do not appear to suffer any gross error (at [28]).
The application to require the District Court to refer the questions of the correctness of the Judge’s ruling to this Court is dismissed (at [29]).
Criminal Law Consolidation Act 1935 (SA) s 50, s 56, s 348, s 350, s 353, referred to.
Jago v District Court (NSW) (1989) 168 CLR 23, discussed.
Hoch v The Queen (1988) 165 CLR 292; R v H,GJ [2014] SADC 20, considered.
R v H, GJ
[2014] SASCFC 34Court of Criminal Appeal: Kourakis CJ, Vanstone and Bampton JJ
THE COURT: The applicant, GJH, applied to the Full Court of this Court for an order requiring the District Court to refer certain questions to it for consideration and determination pursuant to s 350(5) of the Criminal Law Consolidation Act 1935 (SA) (the Act). The application was heard on 21 February 2014, on which day the Court dismissed the application. We now publish our reasons.
The History of the Prosecution
At the time of making his application, the applicant was awaiting trial in the District Court on two indictments. The first dated 25 February 2013 (the February Information), which was listed for trial on 24 February 2014, charged the applicant with five counts as follows:
1.Persistent sexual exploitation of a child (s 50(1) of the Act) against DC the applicant’s daughter committed between 19 May 1975 and 28 February 1989.
2.Indecent assault (s 56(1) of the Act) against SC, another daughter of his domestic partner, committed…
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CaseChat Overview and Summary
The legal issues before the court were whether the District Court judge erred in admitting certain evidence and in his findings regarding the applicant's defence. Specifically, the court was required to consider the implications of the applicant's assertion that crucial defence documents, including his own notes, correspondence with legal representatives, and medical records, were stolen. The court also had to determine the significance of the fact that witness declarations were prepared by "cutting and pasting" from earlier statements, without re-interviewing the witnesses to ascertain the extent of their present memory.
The court's reasoning focused on the principles of fairness and the right to a proper defence. It was noted that the applicant claimed to have retained medical records from his general practitioner, which he believed would assist in establishing his whereabouts and the ages of the complainants. The court considered the applicant's evidence that these records, along with other defence materials, were stolen. The court also addressed the practice of using "cut and paste" witness statements, highlighting the importance of ensuring that witnesses are testifying from their current recollection, not merely verifying past statements. The judge's findings on these matters were central to the determination of the case.
The case was remitted to the District Court for further consideration in light of the Supreme Court's determination on the questions of law raised in the case stated.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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