R v HPL - [2007] NTSC 53

R v HPL [2007] NTSC 53
PARTIES:THE QUEEN
v

HPL

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction ALICE SPRINGS
FILE NO:(20522295)
DELIVERED:  18 October 2007
HEARING DATES:  18 October 2007
JUDGMENT OF:  OLSSON AJ
CATCHWORDS:

Criminal Law – trial – stay of proceedings – the advanced age of the accused – the nature of the accused’s present medical condition – the lengthy delay in complaint and charging – issues as to what is said to be the unsatisfactory evidence relied upon – application dismissed.
Jago v The District Court of New South Wales and Others (1989) 168 CLR 23; Patterson v The Queen [2005] NTSC 83; Subramaniam v R (2004) 211 ALR 1, cited.
REPRESENTATION:
Counsel:
Crown/Respondent:  M Heffernan
Defence/Applicant:  M Johnson
Solicitors:
Crown/Respondent  Office of the Director of Public Prosecutions
Defence/Applicant:  Central Australian Aboriginal Legal Aid Service Inc
Judgment category classification:        C
Judgment ID Number:  ols200701
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
R v HPL [2007] NTSC 53
No. (20522295)

BETWEEN:
THE QUEEN

AND:
HPL

CORAM: OLSSON AJ
REASONS FOR JUDGMENT
(Delivered 18 October 2007)

On 2 April 2007, the accused, HPL, was committed for trial on a variety of charges related to sexual offences said to have been committed by him on his daughter ML between 1970 and 1982. He first appeared before this Court on 23 April 2007, but was not formally arraigned until 29 May 2007.
On the last-mentioned date, the accused was arraigned on an indictment dated 16 April 2007, which charged him with a single count asserting that, between 1 January 1982 and 28 February 1982 at Alice Springs, he raped ML. That charge was preferred pursuant to s 60 of the Criminal Law Consolidation Act and Ordinance in force at the date of the alleged offence.
The accused pleaded not guilty to the charge and was remanded on bail to await trial.
The matter was listed for trial during the present sittings. On 15 October 2007, the Crown presented a fresh indictment that averred the same offence, but stipulated that it had been committed at Alice Springs between 4 October 1981 and 4 October 1982.
This indictment appears, at least in part, to be a reflection of the fact that ML, having been diagnosed as pregnant in mid March 1982, underwent a termination of pregnancy on or about 2 April 1982. The Crown case is that the accused was responsible for her pregnancy. It is said that it was actually the accused who took ML to Adelaide for the termination.
The discrete incident specified by the Crown as constituting the rape charged against the accused is that described by ML in the course of her evidence as recorded at pages 23-25 of the committal transcript. It is asserted that, at a time not long before ML was found to be pregnant, the accused forcibly had penile/vaginal intercourse…

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 HPL

Details

AGLC: R v HPL [2007] NTSC 53
Case: [2007] NTSC 53
Decision Date: 18 October 2007

CaseChat Overview and Summary

In the case of R v HPL, the accused, HPL, applied for a stay of proceedings against criminal charges of sexual abuse. The matter was heard in a relevant Australian court where the presiding judge was tasked with determining whether the application should be granted. The key issues for the court to decide included whether the advanced age and medical condition of the accused, the lengthy delay between the complaint and the charging of the offence, and the quality of the evidence presented, constituted fundamental defects that warranted a permanent stay of proceedings.

The court had to consider whether these factors amounted to the type of fundamental defect that would justify a permanent stay of proceedings, as previously outlined by Mason CJ in the case of Jago. The arguments put forward by the defence counsel centred on the insufficiency and unsatisfactory nature of the evidence against the accused, as well as the potential prejudice caused by the delay and the accused’s age and medical condition. However, the court found that these issues, while significant, did not rise to the level required for a permanent stay. The judge concluded that the problems identified were not uncommon in sexual abuse cases and were typically resolved by the jury.

After careful consideration, the court ruled that the application for a stay of proceedings should be dismissed. The judge determined that the features presented by the defence did not individually or collectively meet the criteria necessary to justify a permanent stay under the relevant legal principles. Consequently, the accused's application was unsuccessful, and the proceedings were allowed to continue as scheduled.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In short, he argued that the accused had not been able to demonstrate that the present case exhibited features amounting to the type of fundamental defect going to the root of the trial adverted to by Mason CJ in Jago.Conclusion At the end of the day, I am compelled to the conclusion that the arguments advanced by Mr Heffernan must prevail. In my opinion the problems identified by Mr Johnson are by no means uncommon and are inherent in many sexual abuse cases of the present type. In so far as they arise from evidentiary aspects, they are typical jury issues that frequently arise in such situations. As to the other matters, they are classic circumstances to which Part 11A directs its attention. In my view the features relied upon on behalf of the accused fall far short, both individually and in combination, of satisfying the relevant principles justifying the making of a permanent stay order. The accused’s application must, accordingly, be dismissed.

Ratio Decidendi

Legal Principle Established

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