R v JM (No 2)

[2013] QDC 337

DISTRICT COURT OF QUEENSLAND

CITATION:

R v JM (No 2) [2013] QDC 337

PARTIES:

THE QUEEN
(respondent)

v

JM
(applicant)

FILE NO/S:

18/2012

DIVISION:

Trial

PROCEEDING:

Criminal

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

22 May 2013

DELIVERED AT:

Rockhampton

HEARING DATE:

13 May 2013

JUDGE:

Smith DCJ

ORDER:

1.   Application by the Defence for ruling of no case to answer is dismissed;

2.   Application by the Defence to exclude Record of Interview in its entirety is dismissed;

3.   Application by the Defence for a stay is dismissed;

4. Application by the Defence to exclude the entire section 93A statement of the complainant is dismissed;

5. Application by the Defence to exclude page 20 lines 21-42 and page 23 lines 21-23 of the complainant’s section 93A statement is granted.

CATCHWORDS:

CRIMINAL LAW- Applications for no case to answer; exclusion of record of Interview and section 93A statement

Criminal Code 1899 (Q) s 590AA

Evidence Act 1977 (Q) ss 93A, 98 and 130

Doney v The Queen (1990) 171 CLR 207

Horan v Ferguson [1995] 2 Qd R 490

Jago v DPP  (1989) 168 CLR 23

R v FAR [1996] 2 Qd R 49

R v Gesa and Nona ex parte Attorney-General [2001] 2 Qd R 72

R v McBride [2008] QCA 412

R v Morris ex parte Attorney-General [1996] 2 Qd R

COUNSEL:

D Murray for the applicant

J Phillips for the Crown

SOLICITORS:

Kenny and Partners for the applicant

Director of Public Prosecutions (Qld) for the Crown

Introduction

1. The applicant JM has applied to the court pursuant to s 590AA of the Criminal Code for the following rulings:

(a)        There is no case for the applicant to answer;

(b)        That the record of interview given by the applicant be excluded from evidence; and

(c)        That nominated portions of the 93A statement of HN be excluded from evidence.

No case submission

1. In the applicant’s outline of argument, it is alleged that there is no case to answer.

1. The prosecution in its outline says that whether or not there is a case to answer – that can only be addressed before the trial with the consent of the Crown.  No consent is given in this case.  It is submitted that any no case submission should be raised at the conclusion of the Crown case at trial.

1. In R v Gesa and Nona ex parte Attorney-General [2001] 2 Qd R 72 it was held that such an application may be brought under the pre-trial provisions in the Criminal Code.  It was held however in that case that it was impossible to do so because the counsel for the Crown indicated she intended to cross-examine and call further evidence in the question of honest mistake of right. 

1. At [18] it was said:

“Such a case may arise where the facts are either agreed or undisputed, where those facts are incapable of supporting a guilty verdict and where the Crown concedes that those facts represent the highest that the Crown case can…