R v Johnston - [2014] QDC 174

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Johnston [2014] QDC 174

PARTIES:

THE QUEEN

v

CLAYTON GARY JOHNSTON

FILE NO/S:

118/14

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

22 August 2014

DELIVERED AT:

Rockhampton

HEARING DATE:

8 August 2014

JUDGE:

Smith DCJ

ORDER:

1. The application to exclude the s93A statement of the complainant is dismissed.

2. I make a no jury order in this matter.

CATCHWORDS:

CRIMINAL LAW - Application for no jury order

EVIDENCE- Application for exclusion of s 93A statement

Criminal Code 1899 (Q) ss 590AA, 614, 615

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

Arthurs v The State of Western Australia [2007] WASC 182

Mickelberg and Anor v R (No 3) (1992) 59 A Crim R 288

R v ABV [2005] QDC 426

R v Brown [2011] QDC

R v Clough [2009] 1 Qd R 197; [2008] QSC 307

R v De Jesus (1986) 61 ALJR 1; 68 ALR 1

R v FAR [1996] 2 Qd R 49

R v Fardon [2010] QCA 317

R v Kissier [2012] 1 Qd R 353; [2011] QCA 223

R v Morley [2010] QDC

R v Morris ex parte Attorney-General [1996] 2 Qd R 68

R v Patel [2012] QSC 419

R v Prisk and Harris [2009] QSC 315

R v SAA [2009] QDC 5

R v WHA [2013] QDC 339

The State of Western Australia v Martinez (2006) 159 A Crim R 380

TVM v The State of Western Australia (2007) 180 Crim R 183

COUNSEL:

Ms. S. Hedge for the Crown

Mr. F. Martin for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the crown

Mulcahy Ryan lawyers for the defendant

Introduction

This is an application by the defence pursuant to s 590AA of the Criminal Code for:

(a) an order for further and better particulars;

(b) a ruling as to the competency of the complainant;

(c) the exclusion of the complainant’s s 93A statement;

(d) a no jury order;

(e) the exclusion of certain other evidence.

The Crown has provided the particulars sought and no ruling is needed on this point. It was agreed by the parties that a decision should firstly be given as to the 93A statement and the no jury order point first. It may be unnecessary to give rulings on the other points if a no jury order is made.

Background

The defendant is charged with the following counts:

(a)maintaining a sexual relationship with the complainant child DH at Rockhampton between 1 July 2010 and 16 July 2013.
(b)one count of rape of DH on a date unknown between 1 December 2010 and 16 July 2013.
(c)one count of rape of DH on a date unknown between 1 May 2103 and 16 July 2013.

The defendant has pleaded guilty to the maintaining count and not guilty to the two counts of rape.

The complainant was born on 2 June 1998 and is presently 16 years old.

A report of Dr Keane a psychologist has been obtained…

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 Johnston

Details

AGLC: R v Johnston [2014] QDC 174
Case: [2014] QDC 174
Decision Date: 22 August 2014

CaseChat Overview and Summary

The case of R v Johnston before the Queensland District Court involved the defendant, Johnston, facing charges of sexual assault. The complainant sought to have her statement, made under section 93A of the Evidence Act 1997, excluded from the trial, arguing it would be oppressive for her to give evidence in person. The Crown opposed the application, arguing that the complainant's evidence was crucial and the trial should proceed with a jury. The legal issues before the court were whether the complainant's evidence would be so oppressive as to render a trial unfair and whether a no jury trial order should be made.

The court examined the relevant legislation and case law, considering the nature of the complainant's evidence and its importance to the case. The court noted that the complainant's evidence was not so oppressive that it would render the trial unfair, and her presence in court was necessary for a fair trial. The court also considered the precedent in cases such as Mickelberg and Anor v R, R v Brown, and R v Clough, where similar applications had been dismissed. The court found that the complainant's evidence was not so oppressive as to warrant exclusion and dismissed the application. The court then made a no jury order, considering the seriousness of the offence and the need for a fair trial.

The court's reasoning was grounded in the importance of ensuring a fair trial while also considering the potential distress to the complainant. The court found that the complainant's evidence was not so oppressive as to render the trial unfair, and her presence in court was necessary for a fair trial. The court also considered the precedent in similar cases and the seriousness of the offence. The court concluded that a no jury trial was appropriate in this case, balancing the rights of the defendant and the complainant.

The final orders were that the application to exclude the complainant's s 93A statement was dismissed and a no jury order was made in this matter.

Orders

Orders of the court

1. The application to exclude the s93A statement of the complainant is dismissed.

2. I make a no jury order in this matter.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Johnston [2014] QDC 174
PARTIES:	THE QUEEN v CLAYTON GARY JOHNSTON
FILE NO/S:	118/14
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	Rockhampton
DELIVERED ON:	22 August 2014
DELIVERED AT:	Rockhampton
HEARING DATE:	8 August 2014
JUDGE:	Smith DCJ
ORDER:	1. The application to exclude the s93A statement of the complainant is dismissed. 2. I make a no jury order in this matter.
CATCHWORDS:	CRIMINAL LAW - Application for no jury order EVIDENCE- Application for exclusion of s 93A statement Criminal Code 1899 (Q) ss 590AA, 614, 615 Evidence Act 1977 (Q) ss 93A, 98, 130 Arthurs v The State of Western Australia [2007] WASC 182 Mickelberg and Anor v R (No 3) (1992) 59 A Crim R 288 R v ABV [2005] QDC 426 R v Brown [2011] QDC R v Clough [2009] 1 Qd R 197; [2008] QSC 307 R v De Jesus (1986) 61 ALJR 1; 68 ALR 1 R v FAR [1996] 2 Qd R 49 R v Fardon [2010] QCA 317 R v Kissier [2012] 1 Qd R 353; [2011] QCA 223 R v Morley [2010] QDC R v Morris ex parte Attorney-General [1996] 2 Qd R 68 R v Patel [2012] QSC 419 R v Prisk and Harris [2009] QSC 315 R v SAA [2009] QDC 5 R v WHA [2013] QDC 339 The State of Western Australia v Martinez (2006) 159 A Crim R 380 TVM v The State of Western Australia (2007) 180 Crim R 183
COUNSEL:	Ms. S. Hedge for the Crown Mr. F. Martin for the Defendant
SOLICITORS:	Office of the Director of Public Prosecutions for the crown Mulcahy Ryan lawyers for the defendant