R v Harker - [2002] QSC 61

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harker [2002] QSC 061

PARTIES:

THE QUEEN

v

DAVID JOHN HARKER

FILE NO/S:

92 of 2002

DIVISION:

Trial Division

DELIVERED ON:

20 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2002

JUDGE:

Mackenzie J

ORDER:

The application is refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – ABUSE OF PROCESS – GENERALLY - Application to stay an ex officio indictment – where the Crown presented the indictment outside the time limit prescribed by s 590 Criminal Code – administrative malfunction - whether this was an abuse of process

Criminal Code s 561, s 590, s 590 (1), s 590 (3), s 590(4)

Barton v The Queen (1980) 147 CLR 75, approved
Jago v District Court of New South Wales (1989) 168 CLR 23, approved
Moevao v Department of Labour (1980) 1 NZLR 464, considered
R v Cooney (1987) 31 A Crim R 256, considered
R v His Honour Judge Grant-Taylor and the Attorney General, ex parte Johnson (1980) Qd R 38, considered
Re Jenkin (1994) 1 Qd R 266, considered
Rona v District Court of South Australia (1995) 77 A Crim R 16, considered
Williams v Spautz (1992) 174 CLR 518, approved

COUNSEL:

R East for the applicant
R Pointing for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for applicant
Director of Public Prosecutions

MACKENZIE J: This is an application to stay an ex officio indictment 67/02 presented on 15 February 2002 on the ground that its presentation was an abuse of process.

The indictment charges the applicant with carrying on business of trafficking in amphetamines between 1 March 2000 and 9 February 2001, unlawful possession of cannabis sativa, heroin and methylamphetamine on 14 July 2000 and unlawful possession of cannabis sativa on 8 February 2001. There is also in existence an indictment 92/02 containing counts of possession of cannabis sativa and methylamphetamine on 14 July 2000, in count one, and possession of heroin on 14 July 2000, in count two. Count three alleges a supply of amphetamine on the same day. Counts one and two of indictment 92/02 appear to replicate the substance of count 2 on indictment 67/02. There was a separate committal on 28 August 2001 of those charges and the charge of supplying dangerous drugs in indictment 92/02 (which presumably is an act done in the course of trafficking). The committal with respect to the charge of carrying on business in trafficking in drugs occurred on 2 August 2001.

The indictment with respect to carrying on the business of trafficking should have been presented by 4 February 2002 to comply with the six month time limit prescribed in s 590 of the Criminal Code (since the six month period elapsed on a Saturday). The basis of the application that the presentation of the ex officio indictment was an abuse of process is that it was an attempt by the Crown to avoid the constraints in s 590.

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 Harker

Details

AGLC: R v Harker [2002] QSC 61
Case: [2002] QSC 61
Decision Date: 20 March 2002

CaseChat Overview and Summary

The case of R v Harker involved a defendant, Harker, who applied for a stay of proceedings against an ex officio indictment due to the Crown's presentation of the indictment being outside the statutory time limit prescribed by section 590 of the Criminal Code. The matter was heard by the Supreme Court of Victoria, which was required to determine whether the administrative malfunction by the Crown constituted an abuse of process warranting a stay.

The central legal issue before the court was whether the administrative error by the Crown, which resulted in the indictment being presented beyond the statutory time limit, constituted an abuse of process that warranted a stay of proceedings. Harker argued that the Crown's failure to comply with the statutory time limit was a significant procedural irregularity that undermined the fairness of the proceedings and warranted a stay. Conversely, the Crown contended that the administrative malfunction was not deliberate and should not result in the proceedings being stayed.

The court examined the principles governing abuse of process and the importance of adhering to statutory time limits in criminal proceedings. The court acknowledged that strict adherence to statutory time limits is crucial to maintain the integrity of the criminal justice system. However, the court found that the administrative malfunction in this case did not amount to an abuse of process. The court considered the Crown's explanation for the delay and found that it was not a deliberate attempt to circumvent the statutory time limit. The court emphasised the importance of ensuring that the accused is not prejudiced by the delay and found that Harker had not demonstrated any prejudice as a result of the administrative malfunction. Consequently, the court refused the application to stay the proceedings.

Orders

Orders of the court

The application is refused

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 Harker [2002] QSC 061
PARTIES:	THE QUEEN v DAVID JOHN HARKER
FILE NO/S:	92 of 2002
DIVISION:	Trial Division
DELIVERED ON:	20 March 2002
DELIVERED AT:	Brisbane
HEARING DATE:	12 March 2002
JUDGE:	Mackenzie J
ORDER:	The application is refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – ABUSE OF PROCESS – GENERALLY - Application to stay an ex officio indictment – where the Crown presented the indictment outside the time limit prescribed by s 590 Criminal Code – administrative malfunction - whether this was an abuse of process Criminal Code s 561, s 590, s 590 (1), s 590 (3), s 590(4) Barton v The Queen (1980) 147 CLR 75, approved Jago v District Court of New South Wales (1989) 168 CLR 23, approved Moevao v Department of Labour (1980) 1 NZLR 464, considered R v Cooney (1987) 31 A Crim R 256, considered R v His Honour Judge Grant-Taylor and the Attorney General, ex parte Johnson (1980) Qd R 38, considered Re Jenkin (1994) 1 Qd R 266, considered Rona v District Court of South Australia (1995) 77 A Crim R 16, considered Williams v Spautz (1992) 174 CLR 518, approved
COUNSEL:	R East for the applicant R Pointing for the Director of Public Prosecutions
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions