R v Mihans - [2000] TASSC 107

[2000] TASSC 107

CITATION: R v Mihans [2000] TASSC 107

PARTIES:  R
  v
  MIHANS, Desmond Alan

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  375/1999
DELIVERED ON:  1 August 2000
DELIVERED AT:  Hobart

HEARING DATES: 3, 4, 6 July 2000

JUDGMENT OF: Slicer J

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Information indictment or presentment - Other matters - Written authority of Director of Public Prosecutions not obtained for prosecution under the Criminal Code s 125A - Indictment void ab initio - Verdict judgement arrested.

Aust Dig. (3rd ed) Criminal Law [731]
The Criminal Code (Tas), ss125A, 385.
McDonnell v Smith (1918) 24 CLR 409, applied.
R v Parker [1977] VR 22; R v Evans [1964] VR 717, followed.

REPRESENTATION:

Counsel:
           Appellant:  J N Perks (Crown)
           Respondent:  J W Avery (Defence)
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Avery Keal

Judgment Number: [2000] TASSC 107
Number of Paragraphs: 13

Serial No 107/2000
File No 375/1999

THE QUEEN
v
DESMOND ALAN MIHANS

REASONS FOR JUDGMENT SLICER J

1 August 2000

Desmond Mihans has moved for the arrest of judgment pursuant to the Criminal Code s385(2) ("the Code") following the jury verdict of guilty to the crime of indecent assault. The basis of the motion was that a "substantial defect appears upon the face of the record".

The indictment signed by a Crown Law officer originally charged Mr Mihans with the crime of maintaining a sexual relationship with a person under the age of 17 years, contrary to the Code, s125A, which relevantly provides:

"125A. Maintaining sexual relationship with young person
(1) In this section, 'unlawful sexual act' means an act that constitutes an offence under section 124, 126, 127, 127A, 133 or 185.
(2)A person who maintains a sexual relationship with a young person who is under the age of 17 years, and to whom he or she is not married, is guilty of a crime.

Charge:
Maintaining a sexual relationship with a young person under the age of 17 years.
(3)An accused person is guilty of having committed an offence under subsection(2) if, during a particular period when the young person was under the age of 17 years -
(a)the accused committed an unlawful sexual act in relation to the young person on at least 3 occasions; and

(b) the young person was not married to the accused.

(4) For the purposes of subsection(3) -
(a)it is not necessary to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of the unlawful sexual acts were committed; and
(b)the unlawful sexual act that was committed on any one of the occasions need not have been the same as the unlawful sexual act that was committed on each or any of the other occasions.

(5)It is a defence to a charge under subsection(2) to prove that the accused person believed on reasonable grounds that the young person was of or above the age of…

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 Mihans

Details

AGLC: R v Mihans [2000] TASSC 107
Case: [2000] TASSC 107
Decision Date: 1 August 2000

CaseChat Overview and Summary

Desmond Alan Mihans was convicted by a jury of the crime of indecent assault. Mihans moved for the arrest of judgment, arguing that a substantial defect appeared upon the face of the record. The indictment originally charged Mihans with maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code s125A, which mandates written authority from the Director of Public Prosecutions before such a prosecution can be commenced. The indictment did not contain this requisite written authority, rendering it void ab initio.

The legal issue before the court was whether an indictment, not authorised by statute, could be amended to allege a similar crime that might be preferred by a Crown Law officer authorised to bring such a prosecution. Parliament has granted extensive powers to the Crown for the prosecution of sexual offenders while also seeking to provide procedural fairness so that an accused can properly meet the charge. The court found that the absence of written authority was a mandatory pre-condition and that its absence rendered the indictment invalid, as held in cases such as R v Evans [1964] VR 717 and R v Parker [1977] VR 22.

The Supreme Court of Tasmania held that the indictment was invalid due to the lack of written authority. The failure to obtain the necessary authority deprived the court of jurisdiction to try the case, making the trial a nullity. Consequently, the court could not amend the indictment, and the verdict and judgment were arrested. This decision underscores the importance of statutory pre-conditions for the commencement of criminal proceedings, even where the defect is procedural in nature.

Orders