R v W; ex parte - [2002] QCA 329

SUPREME COURT OF QUEENSLAND

CITATION:

R v W; ex parte A-G (Qld) [2002] QCA 329

PARTIES:

R

V

W
(respondent)
EX PARTE ATTORNEY-GENERAL OF
QUEENSLAND
(appellant)

FILE NO/S:

CA No 84 of 2002
DC No 62 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal under s 669A(1A) Criminal Code

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

30 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2002

JUDGES:

Williams JA, Mackenzie and Holmes JJ
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

Allow the Attorney-General’s appeal.1.

Set aside the order of the District Court at Rockhampton permanently staying the proceedings upon the indictment and discharging the accused. 2.

Order that the trial be adjourned to a date to be fixed, to be determined according to law.3.

CATCHWORDS:

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED - where respondent charged with indecent treatment of a child under 12 and under care – where it was ordered that the proceedings on the indictment be permanently stayed – where Attorney-General appeals the order to stay - whether the learned trial judge erred in the exercise of his discretion to stay the indictment

Jago v District Court (New South Wales) (1989) 168 CLR 23, considered
Longman v The Queen (1989) 168 CLR 79, considered
R v S [2000] 1 Qd R 445, considered
Walton v Gardiner (1993) 177 CLR 378, considered

COUNSEL:

P F Rutledge for the appellant

B G Devereux for the respondent

SOLICITORS:

The Director of Public Prosecutions (Queensland) for the appellant

Legal Aid Queensland for the respondent

WILLIAMS JA: The reasons for judgment of Mackenzie J clearly demonstrate that the learned District Court judge erred in ordering that proceedings on the indictment in question be permanently stayed. The appeal by the Attorney-General should be allowed and orders made as proposed by Mackenzie J.

MACKENZIE J: The respondent was arraigned and pleaded not guilty to an indictment charging him that on a date unknown between 1 May 2000 and 21 September 2000 he wilfully and unlawfully exposed a girl under the age of 12 years in his care to an indecent act. In a letter dated 31 May 2001 it was stated:

“The particulars relied upon by the crown are that on an occasion between the 1^st May 2000 and the 20^th September 2000 at [the respondent’s residence] in the accused bedroom whilst the complainant was in the room the accused injected his penis with a syringe and played with his penis. The complainant was called into the accused room from the lounge room when she was watching the secret world of Alex Mac on Television.
Please note that the particulars supplied are not those of the trial prosecutor and may be subject to change when the matter is listed for trial.” [sic]

After hearing lengthy submissions the learned District Court judge ordered that the proceedings…

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 W; ex parte

Details

AGLC: R v W; ex parte [2002] QCA 329
Case: [2002] QCA 329
Decision Date: 30 August 2002

CaseChat Overview and Summary

The appeal before the court concerns a case where a respondent was charged with the indecent treatment of a child under 12 and was under the care of a guardian. The District Court at Rockhampton ordered that the proceedings on the indictment be permanently stayed, and it is this order that the Attorney-General has appealed. The appeal raises questions about the exercise of the trial judge's discretion to stay the indictment and whether it was appropriate in the circumstances of this case.

The central legal issue the court had to address was whether the trial judge erred in permanently staying the proceedings against the respondent. The court needed to determine if the trial judge had considered all relevant factors and exercised his discretion appropriately, particularly given that the respondent was under the care of a guardian and the charges related to serious offences involving a child under 12.

In examining the trial judge's decision, the court found that the judge had not adequately considered the principle that criminal proceedings should not be permanently stayed unless there are compelling reasons to do so. The court held that the trial judge had failed to sufficiently weigh the public interest in bringing the accused to justice against the respondent's personal circumstances. The court also noted that the trial judge had not sufficiently considered the impact of the charges on the child and the broader community. Consequently, the court concluded that the trial judge had indeed erred in exercising his discretion to permanently stay the proceedings.

The court allowed the Attorney-General's appeal, set aside the order of the District Court permanently staying the proceedings on the indictment, and ordered that the trial be adjourned to a date to be fixed. The court emphasised the importance of carefully considering all relevant factors when deciding whether to stay criminal proceedings, particularly in cases involving serious offences against children.

Orders

Orders of the court

Allow the Attorney-General’s appeal.1.

Set aside the order of the District Court at Rockhampton permanently staying the proceedings upon the indictment and discharging the accused. 2.

Order that the trial be adjourned to a date to be fixed, to be determined according to law.3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v W; ex parte A-G (Qld) [2002] QCA 329
PARTIES:	R V W (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 84 of 2002 DC No 62 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal under s 669A(1A) Criminal Code
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	30 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	15 August 2002
JUDGES:	Williams JA, Mackenzie and Holmes JJ Separate reasons for judgment of each member of the court, each concurring as to the orders made
ORDERS:	Allow the Attorney-General’s appeal.1. Set aside the order of the District Court at Rockhampton permanently staying the proceedings upon the indictment and discharging the accused. 2. Order that the trial be adjourned to a date to be fixed, to be determined according to law.3.
CATCHWORDS:	APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED - where respondent charged with indecent treatment of a child under 12 and under care – where it was ordered that the proceedings on the indictment be permanently stayed – where Attorney-General appeals the order to stay - whether the learned trial judge erred in the exercise of his discretion to stay the indictment Jago v District Court (New South Wales) (1989) 168 CLR 23, considered Longman v The Queen (1989) 168 CLR 79, considered R v S [2000] 1 Qd R 445, considered Walton v Gardiner (1993) 177 CLR 378, considered
COUNSEL:	P F Rutledge for the appellant B G Devereux for the respondent
SOLICITORS:	The Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent