R v Smith; ex parte - [2000] QCA 443

[2000] QCA 443

COURT OF APPEAL
McMURDO P
DAVIES JA
BYRNE J
CA No 171 of 2000
THE QUEEN
v.
LAURENCE JOHN SMITH Respondent
and
ATTORNEY-GENERAL OF QUEENSLAND Appellant
BRISBANE
..DATE 25/10/2000
JUDGMENT

DAVIES JA:On 29 May this year in the District Court in Brisbane the prosecution presented an indictment against the respondent charging him with two counts in identical terms. They were that on a date unknown between 20 January 1969 and 20 December 1969 at Brisbane he unlawfully and indecently dealt with a named girl under the age of 12. He pleaded not guilty on both counts.
Those counts, it was contended by the prosecution, were two of a number of occasions on which the respondent, who was then a teacher, indecently dealt with the child who was then a seven-year-old pupil in the respondent's school class. The only particulars which the respondent could give of count 1 was that it occurred on an occasion on which the complainant had new and tighter underpants than on previous occasions consequently causing the respondent presumably greater difficulty to get his fingers inside the underpants as he did.
The only particulars which were given of count 2 were that after the offence occurred and the complainant returned to her seat in the class she wet her pants. It was contended that both counts, and indeed other interferences by the respondent with the complainant, occurred in similar circumstances in which, during a class quiet reading period, the complainant was asked to come to the teacher's desk to read to him and while the other children were reading to themselves he fondled her first on the outside of her underpants eventually putting his hand inside her underpants and inserting his fingers into her vagina. There was therefore nothing in the particulars which fixed the offences in time other than within the 1969 school year. As appears from the dates alleged in the counts these incidents were alleged to have occurred more than 30 years ago. The first complaints to the police were made in August 1998 following a Criminal Justice Commission investigation. No explanation was given for the failure to complain before then.
Although as I have said the complainant alleged these offences occurred in the classroom in the circumstances which I have outlined sometime during the 1969 school year, it was not suggested that either count was identified more specifically as to time or occasion. It was not asserted that either of the particulars alleged, the wearing of new tighter underpants or the complainant wetting herself after she returned to her seat in class either would have been or perhaps even could reasonably have been known to the respondent. It is possible that the second of these could have been asserted in respect of the first of those particulars but in any event that would only be so on the assumption that the respondent was guilty.
The learned trial Judge stayed the indictment and the Attorney now appeals against the order staying…

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 Smith; ex parte

Details

AGLC: R v Smith; ex parte [2000] QCA 443
Case: [2000] QCA 443
Decision Date: 25/10/2000

CaseChat Overview and Summary

The appeal in this case involves the Attorney-General of Queensland as the appellant and Laurence John Smith as the respondent. The central issue is whether the trial judge erred in staying the indictment against Smith, who is charged with two counts of indecent assault against a minor under the age of 12, allegedly occurring between 20 January 1969 and 20 December 1969. The crux of the dispute lies in the adequacy of the particulars provided in the indictment and the loss of potentially exculpatory evidence due to the passage of time and the destruction of records.

The legal issues before the Court of Appeal centred on the trial judge's discretion to stay the proceedings and whether there was any legal error in exercising that discretion. The primary issues were whether the particulars provided in the indictment were sufficient to enable Smith to adequately prepare his defence and whether the loss of certain evidence due to the passage of time and destruction of records prejudiced Smith to the extent that a fair trial was no longer possible.

The Court of Appeal held that the trial judge's decision to stay the indictment was within the wide discretion afforded to trial judges in such matters. The Court found that the lack of specificity in the indictment, coupled with the loss of potentially exculpatory evidence due to the destruction of school records and the death of the relevant school principal, created a situation where the absence of further particulars posed a risk of an unfair trial. Additionally, the unexplained delay of nearly 30 years in reporting the alleged offences to the police contributed to the decision. The Court concluded that while the absence of specificity alone might not have warranted a stay, when combined with the other factors, it precluded the appellant from successfully arguing that the trial judge had erred in exercising his discretion.

In light of the above, the appeal was dismissed, affirming the trial judge's decision to stay the indictment. The Court emphasized that the granting of a stay in criminal proceedings is an exceptional step and that different judges might have reached different conclusions, but in this case, the trial judge's decision was not shown to be legally erroneous.

Orders