R v O

[2002] QDC 81

[2002] QDC 081

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE BOTTING

Indictment No 3405 of 2001

THE QUEEN

v.

O

BRISBANE

..DATE 17/04/2002

..DAY 6 aware, I've taken little time albeit a brief time to consider the ruling that I should make.

HIS HONOUR: All right. Thank you. Gentlemen, I thank you
both for your assistance in respect of this application.

The circumstances briefly are these: it has been alleged against the accused that prior to March 2000 he was involved in an unlawful sexual relationship with his stepdaughter who is now 14 years old. He was, as I understand it, charged with these offences or some of these offences shortly after March of 2000 and his committal took place in September of 2000.

Almost exactly a year later, the trial was to proceed at the District Court at Ipswich upon an indictment charging seven specific sexual acts said to constitute seven separate criminal offences.

On that occasion, an application was made for an
adjournment, that application being made by counsel
appearing for the defence, the basis, as I understand it,
being that defence had a short time prior to the matter
being called on been notified of the existence of recordings
of an interview had between the child and a police officer
and a social worker, that interview being had shortly after

the child first made complaint to the authorities.

As I recall it, there was also concerns expressed by counsel judge at Ipswich.

for the defence at that time as to his having received late
notification of the Crown's intention to call a witness to
give what might be submitted was fresh complaint evidence.

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It is fair to say, I think, that the circumstances of the adjournment or the submissions on the adjournment were somewhat strong, and perhaps in part acrimonious. In any event, the adjournment was granted, and within a few days a new indictment was presented charging an offence under section 229B of the Code. I have earlier in the course of the trial made some observations about this occurrence and it is unnecessary for me to repeat them now.

The new latest indictment was before me on Wednesday of last week, that is, the 10th of April. On that day, and on the following two days, I heard legal argument in respect of the charges and in respect of evidence sought to be led. The accused was not arraigned at all last week. It seems to me that the objections on matters of law that I dealt with relate to or can be classified under the following areas:

There was an objection taken by defence counsel to the first
count on the indictment being submitted that in the
circumstances, it was either unlawful or that I should in
the exercise of my discretion determine that the first count
should not be put before the jury.

Secondly, objection was taken to the Crown's proceeding with counts 5 to 8, the submission being that I should rule or indicate to the Crown that it should proceed on one only of those counts.

Objections were taken to evidence sought to be led by the complaint evidence.

Objections were taken by the defence to certain evidence sought to be led by the Crown of allegations of uncharged sexual acts said to have been committed by the accused on the complainant.

There was further objection to evidence sought to be led
from the witness by the name of X of observations that
she had made at the home of the accused when she observed

the accused and the child naked in the house.

There were objections made, and if I recall correctly, these
were actually made on Monday of this week and after, if I
recall correctly, the accused had been arraigned, to opinion
evidence being led from a doctor, and during the course of
discussions I did discuss with counsel a further matter,
namely, whether the Crown might rely upon three of the
counts charged in counts 5 to 8, all of which are said to
have occurred on the same evening and in reasonably close
temporal proximity as being sufficient to comply with the
requirements of subsection 2 of section 229B of the Criminal
Code.

I gave my rulings at various times, some during the course of these arguments and some first thing on Monday, and one at least in respect to the medical evidence somewhat later on Monday.

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So far as the objections to count 1, I ruled in favour of
the Crown. So far as objections to counts 5 to 8 proceeding
and the suggestion that only one of them should go before
the jury, again, I ruled in favour of the Crown. So far as
the evidence said to amount to or submitted to be fresh
complaint evidence, I ruled in favour of the defence

submissions and excluded that evidence.

So far as of objections to certain evidence of alleged that general rule.

sexual acts which were not the subject of specific charges
before the jury are concerned, I largely ruled against the

So far as the evidence of the witness X is concerned, submissions. So far as the objections to medical evidence is concerned, as I say, I think that ruling was made after arraignment, but in any event, I accepted the Crown submissions and ruled in favour of the Crown.

So far as the questions as to whether or not the three and indicated that I might wish to hear submissions on that matter at the close of the evidence.

offences charged to have occurred on the same day might
satisfy the requirements of subsection (2) of section 229B,

As one would anticipate, both counsel, of course, quite properly, accepted the rulings that I made, whatever personal reservations they may have had about the wisdom of them, and on Monday morning the accused was arraigned and pleaded not guilty to each of the counts charged against him. The learned Crown Prosecutor then opened his case and the complainant was called commencing her evidence, if I recall correctly, just after the luncheon adjournment.

Her evidence-in-chief was relatively brief and counsel for difficulties in establishing any basis for counts 3 and 4 on the indictment. Whilst I did not hear or indeed invite submissions from learned Crown counsel at that time, I think it's fair to say that he indicated that he accepted that the Crown might have difficulties in those counts.

the accused then commenced his cross-examination. The
cross-examination continued throughout Tuesday, and at
lunchtime yesterday I took the opportunity, whilst the jury
were absent, to express a tentative view to the learned

The cross-examination of the complainant continued into the cross-examination or any suggestion could be made that her distress was the result of any intimidatory tactics engaged

afternoon, and at about 3.30, if I recall correctly, she
appeared to be distressed and I adjourned the proceedings
for a short time. I should perhaps say for the record that
in my view, although I haven't invited discussion upon this,

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in by defence counsel.

In any event, be that as it may, she did appear to be distressed and I granted a short adjournment. Shortly thereafter, I was requested, as I understand it, by the Crown, and with the consent of counsel for the accused, to adjourn the matter essentially until today, and I acceded to that request and I did not return to Court, but asked the bailiff and my associate to inform the jurors that we were adjourning and to remind them of the customary warning.

This morning, I resumed the matter in the absence of the
jury and learned Crown counsel made an application that I,
in essence, re-affirm or re-state the rulings which I gave
last week and prior to the arraignment of the accused. He
has, quite frankly, and quite properly, informed me that his
purpose in doing so was so that he might, after I had
re-affirmed or re-stated those rulings, then enter a nolle
prosequi so that the Crown might then consider whether to
take the matter to the Court of Appeal for its consideration
of my rulings.

The Crown take this view because of its understanding that section 669A(2) of the Criminal Code would preclude the Attorneys referring my rulings to the Court of Appeal unless they are in some way re-stated or re-affirmed during the course of the trial.

Section 669A(2) provides that the Attorney:

"May refer any point of law that has arisen at the

trial upon indictment of a person.",

to the Court of Appeal for its consideration.

In The Queen v. Lewis, ex parte Attorney-General, 1991 2 essence means that that Court may not entertain an Attorney's reference unless the trial has commenced. At page 302, the then Chief Justice said:

"If we enquire when a trial formally commences under
the procedures governed by the Code then the Code
itself provides a ready answer. When section 669A
speaks of points of law arising at the trial, it can
be taken that it refers to points which have arisen
after the accused has been arraigned and called upon
to plead."

Mr Justice Connolly might perhaps be thought not to be quite as strong a point as the Chief Justice, see his observations at page 308, but in any event, it seems to me that the

Crown's suggested view of the 669A(2) is well founded.

On the other hand, it has to be said that the course proposed by the Crown is one which I think has been the subject of judicial criticism. Indeed, in the same case that I've been referring to, the then Chief Justice at page

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302 said:

"It should also be said that the subsection is not
intended to provide for a general review by this
Court of a trial judge's rulings in a case where the
trial is to be resumed and so, from a practical
point of view, is still continuing. In cases where
attempts have been made to interrupt summary
proceedings by seeking the intervention of the
Appeal Court, these attempts have been discouraged:
See, for example, Schneider v. Curtis [1967] QdR 300
at 304, 305. In trials on indictment justice
demands that in all ordinary cases, at trial once
commenced should proceed through to conclusion on
the evidence which the Crown has, in the usual way,
disclosed to the accused in advance or on such of it
as the trial judge decides should properly be
admitted. Dislocation of the trial or delay in the
course of it has the potential for injustice to an
accused who remains in jeopardy until the trial is
concluded."

Whilst, as learned Crown Prosecutor points out to me those observations, perhaps are more indicative or likely to be indicative of the Court of Appeal's approach to the proposed application, it seems to me that the considerations which moved his Honour to express himself as he did are considerations which are pertinent before me, that is, questions of injustice to an accused.

I should also observe that I have difficulty at this stage in perceiving that it could be fairly said that the rulings which I have made could involve points of law such as might properly excite the attention of the Court of Appeal, and again, I refer generally to the judgments of the then Chief Justice and Mr Justice Connolly in Lewis to which I've already referred.

However, I am prepared to accept for the purposes of this
ruling, and I do accept for the purposes of this ruling,
that it may be possible to glean from the rulings some point
of law which would be such as to attract the attention of
the Court of Appeal.

It does seem to me that there is indication from the legislature that, generally speaking, in so far as trial judges are concerned, rulings made pursuant to section 592A are to be regarded as being final. Subsection (3) provides that a direction or ruling is to be binding:

"Unless the trial judge, for special reason, gives
leave to re-open the direction or ruling."

It has not, of course, been suggested before me today that any specific reason exists why I should revisit the ruling.

It does, therefore, seem to me that the Crown's purpose in seeking or making the application that it has is contrary to

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the spirit and perhaps to the intention of the Parliament as
may be gleaned from the proper construction of the words
used in sections 592A and in section 669A(2).

In this case, it has not been suggested to me that there is any proper reason why it is necessary for me in order to ensure the proper conduct of the trial, to repeat or re-make the rulings which I have made. As I have already indicated, it seems to me the statute prohibits my revisiting the rulings unless special reason exists, and as I have already said, no such reason has been suggested in this case.

On the other hand, if I were to accede to the Crown's
request, it seems to me that there is likely to be
significant prejudice to the accused. As I have already
indicated, it does seem to me that on the current state of
the evidence, almost certainly I think at this stage I would
have to accede to a no case submission in respect of counts
3 and 4 of the indictment. I should emphasise, of course, I
haven't invited submissions on that, but at this stage it
does seem to me to be very clear that that would be the most
likely outcome at the end of the Crown evidence.

Even if that were not the case, it would seem to me that there would be prejudice to the accused. He would, of course, be at risk of being required again to present himself for trial in a matter which so far at least has not demonstrated to be or shown to be one which can proceed expeditiously. This is the sixth day - no, sorry, the seventh day of the trial if one includes in that a poor description of trial, of course, the proceedings last week.

It would seem to me that the accused or at least those who are responsible for funding him would be almost obliged to appear to argue any matter that might be raised before the Court of Appeal. The delay with these matters still hanging

over his head would also, it seems to me, be a significant
prejudice to the accused.

It seems to me that it can be said quite shortly that the legislature as it presently exists has not provided, it does not appear to have provided for the course that the Crown seek. I see no reason why it is necessary for me to reiterate or re-make the rulings, as I say, for the proper conduct of this trial before this jury.

Then in the circumstances, it seems to me I should decline to make the rulings or re-make the rulings that the Crown seek.