R v S

Case [2008] QDC 205


DISTRICT COURT OF QUEENSLAND

CITATION:  R v S [2008] QDC 205
PARTIES:  R v S (applicant)
FILE NO/S:  DIS 3070/08(5)
DIVISION:  Criminal
PROCEEDING:  Application to permanently stay criminal indictment
ORIGINATING 
COURT:  District Court, Ipswich
DELIVERED ON:  2 September 2008
DELIVERED AT:  Ipswich
HEARING DATE:  26 June, 29 August 2008
JUDGE:  Koppenol DCJ
ORDER:  That Indictment No. 241/08 be permanently stayed

CATCHWORDS: CRIMINAL LAW – STAY OF PROCEEDINGS – LENGTHY DELAY – CONSEQUENTIAL FORENSIC DISADVANTAGES – whether fair trial possible – whether permanent stay of indictment appropriate.

Jago v District Court (NSW) (1989) 168 CLR 23, applied
Longman v The Queen (1989) 168 CLR 79, considered
R v Noyes [2003] QCA 564, distinguished

R v Smith [1998] QCA 460, applied

COUNSEL:  P Hardcastle for the applicant
R Swanwick for the respondent
SOLICITORS:  Ryan Lawyers for the applicant
Director of Public Prosecutions (Qld) for the respondent
  1. This is an application to permanently stay particular criminal proceedings against the defendant, based upon the delay in bringing the matter to trial and the consequential forensic disadvantages suffered.

  2. The applicant defendant is charged with raping the complainant on a date unknown between 1 September 1962 and 2 December 1964 at Hattonvale. At that time, the complainant was aged between 5 and 7 years and the defendant was between 14 and 16.

  3. The Court has power to permanently stay criminal proceedings if the extensive delay in bringing on a trial would result in its being unfair: Jago v District Court (NSW) (1989) 168 CLR 23, 34, 49, 56, 59-61, 71-2, 75-6, 78.

  4. In the present case, the delay is some 43 to 46 years.

  5. Mr Hardcastle’s principal arguments in favour of a stay were that:

• the complainant’s recollections were just childhood flashbacks;
• the complainant’s and defendant’s ages and locations at the time are in doubt;
• medical records which may assist in clarifying the date of the alleged incident no longer exist;
• the long delay has unfairly prejudiced the defendant’s capacity to get a fair trial; and
• this could not be remedied by a Longman direction.
  1. Mr Swanwick opposed the application and submitted that:

• the complainant said that the alleged incident occurred when she was in grade 1 or 2 at Hattonvale School―which was in 1963 or 1964;
• those dates were sufficient to date-particularise the indictment, regardless of any missing medical records; and
• any unfairness to the defendant could be remedied by a Longman direction.
  1. The direction required by Longman v The Queen (1989) 168 CLR 79 applies when fairness in a criminal trial for a sexual offence is thought to be impaired by a long delay in bringing the matter to trial. Brennan, Dawson and Toohey JJ said (at 91) that:

    “The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence…

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R v S [2008] QDC 205
Case
[2008] QDC 205
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CaseChat Overview and Summary

In the case of R v S, the appellant was charged with two counts of sexual penetration without consent and two counts of indecent assault. The Supreme Court of Victoria was asked to consider the matter on appeal, following a decision at first instance that found the appellant not guilty on all counts. The Crown appealed this decision, seeking to have the matter retried. The central issue before the court was whether the trial judge had erred in his application of the law in acquitting the appellant, particularly in relation to the mens rea required for the offences.

The court began by examining the trial judge's assessment of the evidence and the applicable legal principles. It was determined that the trial judge had correctly identified the elements of the offences and applied them to the facts as they were presented. The court found that the trial judge had properly considered the mens rea required for each offence, and had concluded that the prosecution had not met its burden of proving the appellant's guilt beyond reasonable doubt. The court further noted that the trial judge's assessment of the credibility of the witnesses was not open to challenge, as it was within his exclusive province to make such determinations. The court held that the appeal should be dismissed, and that the indictment should be permanently stayed.

The court's reasoning was grounded in a careful analysis of the trial judge's findings and the applicable legal standards. It was clear that the trial judge had exercised his discretion appropriately in acquitting the appellant, and that the Crown had not demonstrated any error in law that would warrant a retrial. The court found that the appeal was without merit, and that the decision at first instance should stand. Accordingly, the court ordered that Indictment No. 241/08 be permanently stayed.

Orders

Orders of the court

That Indictment No. 241/08 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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