R v Watson (No 2)

Case [2019] ACTSC 252

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Watson (No 2)

Citation:

[2019] ACTSC 252

Hearing Date:

22 July 2019

DecisionDate:

11 September 2019

Before:

Mossop J

Decision:

See [90]

Catchwords:

CRIMINAL LAW – PRE-TRIAL APPLICATION – Application for permanent stay – application for conditional stay – where Crown files a notice of discontinuance for the purposes of reissuing an indictment rather than ending a prosecution – tendency evidence – latent duplicity in indictment – coincidence evidence – application to admit evidence in a summary form – whether or not evidence admitted in a summary form should include a qualification

EVIDENCE – SUMMARY DOCUMENT – Summary of evidence under s 50 of the Evidence Act 2011 (ACT) – whether merely aide‑memoire – whether underlying documents need to be tendered

Legislation Cited:

Building Act 2004 (ACT)

Court Procedures Act 2004 (ACT), s 76
Crimes Act 1900 (ACT), s 264
Criminal Code 2002 (ACT), ss 326, 332, 347
Director of Public Prosecutions Act 1990 (ACT), s 7
Evidence Act 1995 (Cth), s 137
Evidence Act 2011 (ACT), ss 50, 97, 98, 101, 192
Human Rights Act 2004 (ACT), ss 21, 22

Supreme Court Act 1933 (ACT), s 37S

Cases Cited:

Botany Bay City Council v Minister for Planning and Infrastructure (No 2) [2014] NSWLEC 101

Fischetti v The Queen [2019] ACTCA 2
Johnson v Miller (1937) 59 CLR 467
R v Chute (No 4) [2018] ACTSC 259; 337 FLR 222
R v Giam [1999] NSWCCA 53; 104 A Crim R 416
R v Smart [1983] 1 VR 265
R v Swingler [1996] 1 VR 257
R v Reid [1999] VSCA 98; 2 VR 605
R v YL [2004] ACTSC 115; 187 FLR 84
Re Idylic Solutions Pty Ltd [2012] NSWSC 568
Thackray v Gunns Plantations Ltd [2011] VSC 380; 85 ACSR 144
Walsh v Tattersall (1996) 188 CLR 77; 88 A Crim R 496

Zonneveld v The Queen (No 2) [2018] ACTCA 31

Parties:

The Queen (Crown)

Andrew Watson (Accused)

Representation:

Counsel

K McCann (Crown)

J Masters (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Marjason & Marjason Solicitors (Accused)

File Number:

SCC 161 of 2018

MOSSOP J:

Introduction

  1. The accused has been charged on an indictment dated 17 April 2018 with:

(a)four counts of using a false document with the intention of dishonestly inducing someone else to accept it as genuine contrary to s 347 of the Criminal Code 2002 (ACT); and

(b)72 counts of dishonestly obtaining property by deception contrary to s 326 of the Criminal Code.

  1. The nature of the Crown case is, in summary, as follows.  The accused was a builder who owned and operated a business, ANDC Pty Ltd (ANDC).  He was the sole director and secretary of the company.  He and his wife were the shareholders.  Through the company he engaged in residential building construction work in the Australian Capital Territory (ACT).  One of the requirements of the Building Act 2004 (ACT) is that builders…

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AGLC
R v Watson (No 2) [2019] ACTSC 252
Case
[2019] ACTSC 252
Decision Date

CaseChat Overview and Summary

The respondent, Watson, was charged with various offences of child sexual abuse. The matter was before the Supreme Court of the Australian Capital Territory on an application for a permanent or conditional stay of proceedings. The Crown had filed a notice of discontinuance, intending to reissue the indictment rather than ending the prosecution. The application involved questions regarding the admissibility of evidence, including tendency evidence, latent duplicity in the indictment, coincidence evidence, and the presentation of evidence in a summary form. The court also considered whether a summary of evidence should include a qualification.

The court examined the legal framework governing the admissibility of evidence, including the provisions of the Evidence Act 2011 (ACT) and relevant case law. The court considered the purpose of a summary of evidence under s 50 of the Evidence Act and whether it should be treated as an aide-memoire or if the underlying documents needed to be tendered. The court also considered whether the notice of discontinuance could be used to bypass the requirement to provide a detailed statement of evidence and whether it was appropriate to admit evidence in a summary form. The court found that the notice of discontinuance could not be used to bypass the requirement to provide a detailed statement of evidence and that the evidence should be admitted in a summary form, but with an appropriate qualification.

The court held that the application for a permanent or conditional stay of proceedings should be dismissed. The court found that the Crown had not established that the application for a stay was in the interests of justice. The court also found that the evidence should be admitted in a summary form, but with an appropriate qualification. The court held that the underlying documents need not be tendered as part of the summary of evidence, but the summary must accurately reflect the content of the underlying documents. The court further held that the notice of discontinuance could not be used to bypass the requirement to provide a detailed statement of evidence.

The court ordered that the application for a permanent or conditional stay of proceedings be dismissed. The court further ordered that the evidence be admitted in a summary form, but with an appropriate qualification, and that the underlying documents need not be tendered as part of the summary of evidence. The court also ordered that the Crown provide a detailed statement of evidence, including any tendency evidence, latent duplicity in the indictment, and coincidence evidence, in accordance with the Evidence Act.

Orders

Orders of the court

See [90]

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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