R v QX (No 6) - [2021] ACTSC 248

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v QX (No 6)
Citation:	[2021] ACTSC 248
Hearing Date:	13 August 2021
Submissions Last Received:	17 August 2021
DecisionDate:	6 October 2021
Before:	Loukas-Karlsson J
Decision:	See [53]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Ground Rules Hearing – intermediary appointed for “prescribed witness” – consideration of intermediary report and recommendations – directions made pursuant to s 4AF Evidence (Miscellaneous Provisions) Act 1991 (ACT)
Legislation Cited:	Crimes Act 1900 (ACT) s 55, 61, 66 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4AA, 4AB, 4AC, 4AD, 4AE, 4AF, 4AK, 4AM, 4A, 42 Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT) Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) reg 3B Evidence Act 2011 (ACT) ss 26, 29, 41
Cases Cited:	R v QX (No 2) [2021] ACTSC 244 R v QX [2021] ACTSC 187 Ward (a pseudonym) v The Queen [2017] VSCA 37; 54 VR 68
Texts Cited:	John Henry Wigmore, Evidence in Trials at Common Law (Little, Brown and Company, 3^rd ed, 1974) vol 5
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

On 18 December 2020, I ordered the appointment of an intermediary for the complainant (BM) in this case pursuant to s 4AK of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act): R v QX (No 2) [2021] ACTSC 244 (R v QX (No 2)). The complainant is a “prescribed witness” within the meaning of reg 3B(1)(a) of the Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) and s 42(c) of the EMP Act. On 3 June 2021, the Registrar directed that a ground rules hearing be held for the complainant pursuant to s 4AB(2) of the EMP Act on 13 August 2021. The ground rules hearing proceeded before me on that day and parties provided written submissions thereafter. I reserved my decision as to the directions to be made pursuant to s 4AF of the EMP Act. Orders and reasons now follow.

Background of Matter

On 30 October 2020, the prosecution filed a fresh indictment in this matter after a stay application advanced by the accused was refused by me on 19 August 2020: R v QX [2021] ACTSC 187. The indictment against the accused contains the following offences:

(a) 18 counts of sexual intercourse with a person between the age of 10 and 16 years, contrary to s 55(2) of the Crimes Act 1900 (ACT) (Crimes Act) (Count 2-11, 13-20);

(b) One count of committing an act of indecency on a young person between the ages of 10 and 16 years, contrary to s 61(2) of the Crimes Act (Count 1); and

(c) One count of grooming a young person by engaging in conduct with another person who has a relationship with the young person with…

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 (No 6)

Details

AGLC: R v QX (No 6) [2021] ACTSC 248
Case: [2021] ACTSC 248
Decision Date

CaseChat Overview and Summary

This matter involves a criminal prosecution by the Crown against QX, the accused, for sexual offences against a child. The proceedings were before Loukas-Karlsson J in the Supreme Court of the Australian Capital Territory. The accused was facing trial on 18 counts of sexual intercourse with a person between the age of 10 and 16 years, one count of committing an act of indecency on a young person between the ages of 10 and 16 years, and one count of grooming a young person. The complainant in the matter is a "prescribed witness" within the meaning of reg 3B(1)(a) of the Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) and s 42(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act). Pursuant to s 4AK of the EMP Act, an intermediary was appointed for the complainant in this case. A ground rules hearing was held for the complainant pursuant to s 4AB(2) of the EMP Act on 13 August 2021. The hearing proceeded before Loukas-Karlsson J on that day. Parties provided written submissions thereafter. The court reserved its decision as to the directions to be made pursuant to s 4AF of the EMP Act. In deciding the directions to be made pursuant to s 4AF of the EMP Act, the court considered the recommendations contained in the intermediary report. The court also considered submissions made by counsel for the accused opposing the recommendations made by the intermediary. The court ultimately accepted the majority of the recommendations contained in the intermediary report. Directions were made pursuant to s 4AF of the EMP Act for the complainant’s pre-trial hearing.

Orders