R v QX

Case [2021] ACTSC 187 19 August 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v QX
Citation:	[2021] ACTSC 187
Hearing Date:	19 August 2020
Decision Date:	19 August 2020
Reasons Date:	16 August 2021
Before:	Loukas-Karlsson J
Decision:	The application in proceedings dated 28 May 2020 seeking a stay of the indictment dated 27 April 2020 is dismissed.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for stay of indictment – child sexual offences – maintaining a sexual relationship with a young person – discrete offences of sexual intercourse with young person
which form part of the basis for maintaining offence – whether indictment presents fundamental unfairness – whether indictment may result in double jeopardy – whether indictment
offends s 24 of the Human Rights Act 2004 (ACT)
Legislation Cited:	Crimes Act 1900 (ACT) ss 55, 56, 61, 66, 92EA (repealed) Criminal Code Act 1899 (Qld) s 229B Human Rights Act 2004 s 24 Legislation Act 2001 s 79
Cases Cited:	CAZ v The Queen [2012] HCATrans 244 Jago v District Court (NSW) (1989) 168 CLR 23 KBT v The Queen (1997) 191 CLR 417 KN v The Queen [2019] ACTCA 37; 14 ACTLR 289 R v CAZ [2012] QCA 231; 1 Qd R 440 R v DU [2018] ACTSC 281; 14 ACTLR 1 R v Edwards [2009] HCA 20; 255 ALR 399 R v KN (No 2) [2019] ACTSC 5 R v M, DV [2019] SASCFC 59 Rogers v The Queen (1994) 181 CLR 251 S v The Queen (1989) 168 CLR 266
Strickland (a pseudonym) v Commonwealth Director of Public
Prosecutions [2018] HCA 53; 266 CLR 325 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509
Texts Cited:	Explanatory Statement, Crimes Legislation Amendment Bill 2017 (No 2) (ACT) Explanatory Statement, Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT)
Royal Commission into Institutional Responses to Child Sexual
Abuse (Criminal Justice Report, August 2017)
Parties:	The Queen (Crown)
QX (Accused)
Representation:	Counsel
S Jerome (Crown)
J Pappas (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Accused)
File Number:	SCC 58 of 2020
LOUKAS-KARLSSON J:
Introduction

1. A stay application was heard on 19 August 2020. QX (the accused) was arraigned on an indictment dated 27 April 2020 (the indictment) and entered pleas of not guilty to each offence. On that date, I dismissed the application and indicated to the parties that the reasons would be published at a later date. Those reasons follow.
2. The indictment against the accused contained the following offences:

(a) One count of maintaining a sexual relationship with a young person, contrary to s 56(1) of the Crimes Act 1900 (ACT) (Crimes Act) (Count 1).
The maximum penalty for this offence is 25 years’ imprisonment. This

offence is particularised as having occurred between 1 July 2018 and 19
July 2019;
(b) 18 counts of sexual intercourse with a person between the age of 10 and 16 years, contrary to s 55(2)…

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 QX

Details

AGLC: R v QX [2021] ACTSC 187
Case: [2021] ACTSC 187
Decision Date

CaseChat Overview and Summary

In this case, the accused, QX, was charged with a range of sexual offences against a young person, including maintaining a sexual relationship with a young person, sexual intercourse with a person between the age of 10 and 16 years, committing an act of indecency on a person between the ages of 10 and 16 years, and grooming a young person by engaging in conduct with another person who has a relationship with the young person with the intention of making it more likely that the young person would take part in an act of a sexual nature. QX filed an application seeking a stay of the indictment on the basis that it exposed him to the possibility of double jeopardy, offended section 24 of the Human Rights Act 2004 (ACT), represented an abuse of process, and represented a fundamental unfairness. The Court considered the arguments and found that the accused's application for a stay was not warranted. The Court found that the accused's arguments had been settled by the Court of Appeal in KN v The Queen and that the indictment as drafted did not raise any issue of unfairness sufficient to warrant a stay. The Court dismissed the application for a stay of the indictment.

Orders