R v PJ - [2009] ACTSC 165

R v PJ
[2009] ACTSC 165 (11 December 2009)

CRIMINAL LAW – Application for permanent stay of proceedings – two counts of attempt to carnally know a girl under 10 years of age – four counts of act of indecency on a girl under 16 years of age – two incidents between 1975 and 1977 – extreme delay – absence of timely complaint – lack of specificity as to time alleged offences occurred – fair trial not possible – application for stay granted

EVIDENCE LAW – complainant four and five years old at time of incidents – no corroborating evidence – unsworn evidence of child – complainant no longer a child – corroborating evidence not required – substantial delay – loss of relevant evidence – need for Longman warning

Evidence Ordinance 197, s 64
Health Insurance Act 1973 (Cth), s 130
Evidence Act 1995
Crimes Act 1900 (NSW), s 418

Evidence Act 1995 (Cth), s 13

Cheers v Potter (1931) 46 CLR 521

R v Cooper [2007] ACTSC 74 (10 September 2007)

Longman v R (1989) 168 CLR 79

R v Geoffrey David Davis [1995] FCA 1321 (23 June 1995)

No. SCC 60 of 2008

Judge: Higgins CJ
Supreme Court of the ACT

Date: 11 December 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 60 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

PJ

ORDER

Judge:  Higgins CJ
Date:  11 December 2009
Place:  Canberra

THE COURT ORDERS THAT:

The indictment be permanently stayed.

This was an application to stay proceedings arising from an indictment dated 3 April 2008 containing six counts:

The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra in the Australian Capital Territory [PJ] attempted to carnally know [MJ], a girl under the age of 10 years of age, to wit four or five years of age.

SECOND COUNT

AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [MJ], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [MJ].

THIRD COUNT

AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [MJ], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [MJ].

FOURTH COUNT

AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] attempted to carnally know [MJ], a girl under the age of 10 years of age, to wit aged four or five years of age.

FIFTH COUNT

AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid…

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 PJ

Details

AGLC: R v PJ [2009] ACTSC 165
Case: [2009] ACTSC 165
Decision Date: 11 December 2009

CaseChat Overview and Summary

The case of R v PJ involved a defendant facing charges of attempting to have carnal knowledge of a girl under 10 years of age on two occasions, as well as committing acts of indecency on a girl under 16 years of age on four occasions. The alleged incidents occurred between 1975 and 1977, and the prosecution sought to bring the matter to trial many years later. The defendant applied for the proceedings to be permanently stayed, arguing that the significant delay and lack of specificity regarding the time of the alleged offences made it impossible for a fair trial to occur.

The primary legal issue before the court was whether the delay in bringing the charges was so substantial that it rendered a fair trial impossible. The court also considered the lack of specificity regarding the time the alleged offences occurred, as well as the absence of any corroborating evidence due to the complainant's age at the time of the incidents. The court had to weigh the potential prejudice to the defendant against the need to bring justice to the alleged victims.

The court found that the extreme delay in bringing the charges, combined with the absence of a timely complaint and lack of specificity as to the time the offences allegedly occurred, made it impossible for the defendant to receive a fair trial. The court noted that the complainant was a child at the time of the alleged incidents, and there was no corroborating evidence due to this fact. However, the court held that the substantial delay and loss of relevant evidence meant that it was not necessary to require corroborating evidence. The court also noted that a Longman warning would have been necessary to ensure the reliability of the unsworn evidence of the child. Given these factors, the court granted the application for a permanent stay of proceedings.

The final orders of the court were that the indictment be permanently stayed, bringing the criminal proceedings against the defendant to an end.

Orders

Orders of the court

The indictment be permanently stayed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra in the Australian Capital Territory [PJ] attempted to carnally know [MJ], a girl under the age of 10 years of age, to wit four or five years of age.
SECOND COUNT	AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [MJ], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [MJ].
THIRD COUNT	AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [MJ], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [MJ].
FOURTH COUNT	AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] attempted to carnally know [MJ], a girl under the age of 10 years of age, to wit aged four or five years of age.
FIFTH COUNT	AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid…