R v WHA - [2013] QDC 338

DISTRICT COURT OF QUEENSLAND

CITATION:

R v WHA [2013] QDC 338

PARTIES:

THE QUEEN

v

WHA

FILE NO/S:

Indictment DC 289/13

DIVISION:

Criminal

PROCEEDING:

Pre Trial Argument – S. 590AA of Criminal Code

ORIGINATING COURT:

District Court, Townsville

DELIVERED ON:

24 October 2013

DELIVERED AT:

Townsville District Court

HEARING DATE:

14 October 2013

JUDGE:

O’Brien DCJA

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE –APPLICATION FOR STAY OF INDICTMENT – where the applicant seeks temporary stay of counts in indictment pending trial on other counts in the indictment – where there was delay with additional charges – whether delay amounts to abuse of process or unfairness

CRIMINAL LAW – PROCEDURE - JOINDER OF COUNTS – application to sever indictment – whether evidence meets the requirements set out in Pfennig v R (1995) 182 CLR 461 – similarity of alleged conduct between two complainants

CRIMINAL LAW – PROCEDURE – APPLICATION FOR ORDER FOR NO JURY – Criminal Code (Qld) s 615(1) – whether it is in the interest of justice for an accused person to be tried by a Judge sitting without a jury

CRIMINAL LAW – APPLICATION FOR LEAVE TO CROSS-EXAMINE COMPLAINANT – Criminal Law (Sexual Offences) Act 1978 s 4

Criminal Code (Qld) ss 590AA, 604, 615, s 657.
Criminal Law (Sexual Offences) Act 1978 s 4.
Evidence Act 1977 (Qld) s 21AK.

Barrac v DPP; Barrac v Stirling [2007] QCA 112
Jago v District Court of NSW (1989) 168 CLR 23
HML v The Queen (2008) 235 CLR 334
Pfennig v R (1995) 182 CLR 461
Phillips v The Queen (2006) 225 CLR 323
R v Brown [2011] QCA 16
R v Cossor (1994) QCA 403
R v Fardon [2010] QCA 317
R v Miller [2007] QCA 373
R v Prisk and Harris [2009] QSC 315

R v SBH [2008] QCA 204

COUNSEL:

Ms K L Fredericks for the Crown

Mr M Hibble for the defendant

SOLICITORS:

Director of Public Prosecutions for the Crown

Stevenson MacNamara Lawyers for the defendant

There is presently an 18 count indictment before the court charging the defendant WHA with various offences of a sexual nature involving two separate complainants. The complainant in counts 1 to 12 is SW, who is now 17 years of age and was aged between seven and 12 years at the time of the alleged offending. The complainant in counts 13 to 18 is her sister DW, now aged 15 and aged between eight and 10 years at the relevant time. Counts 2 to 12 and 14 to 18 relate to specific offences and counts 1 and 13 allege the maintaining of a sexual relationship with the complainants.

By way of pretrial argument pursuant to s 590AA of the Criminal Code, the defendant now seeks an order for a temporary stay of counts 1 to 3 and counts 6 to 18 pending his trial on counts 4 to 5 in the indictment. In the event that he is unsuccessful in that application, the defendant seeks an order…

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 WHA

Details

AGLC: R v Wha [2013] QDC 338
Case: [2013] QDC 338
Decision Date: 24 October 2013

CaseChat Overview and Summary

The matter before the Court involved an applicant seeking various procedural orders in relation to an indictment that had been laid against them. The applicant sought a stay of certain counts pending the trial of others, an order to sever the indictment on the basis of the similarity of alleged conduct between two complainants, an order to be tried by a Judge sitting without a jury, and leave to cross-examine a complainant. The case was heard in the Supreme Court of Queensland.

The central legal issues that the Court had to address were whether the delay in laying additional charges amounted to an abuse of process or unfairness, whether the evidence met the requirements for severance of counts as set out in Pfennig v R, whether it was in the interest of justice for the applicant to be tried by a Judge sitting without a jury, and whether the applicant was entitled to cross-examine a complainant.

The Court considered the application for a stay of counts and found that the delay in laying additional charges did not amount to an abuse of process or unfairness. The Court also found that the evidence did not meet the requirements for severance of counts, as the alleged conduct was sufficiently similar between the two complainants. Regarding the application for a trial by Judge alone, the Court found that it was not in the interest of justice for the applicant to be tried without a jury. Finally, the Court found that the applicant was not entitled to cross-examine a complainant under the relevant legislation.

The application was dismissed in its entirety, and no orders were made in favour of the applicant.

Orders

Orders of the court

Application dismissed.

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 WHA [2013] QDC 338
PARTIES:	THE QUEEN v WHA
FILE NO/S:	Indictment DC 289/13
DIVISION:	Criminal
PROCEEDING:	Pre Trial Argument – S. 590AA of Criminal Code
ORIGINATING COURT:	District Court, Townsville
DELIVERED ON:	24 October 2013
DELIVERED AT:	Townsville District Court
HEARING DATE:	14 October 2013
JUDGE:	O’Brien DCJA
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE –APPLICATION FOR STAY OF INDICTMENT – where the applicant seeks temporary stay of counts in indictment pending trial on other counts in the indictment – where there was delay with additional charges – whether delay amounts to abuse of process or unfairness CRIMINAL LAW – PROCEDURE - JOINDER OF COUNTS – application to sever indictment – whether evidence meets the requirements set out in Pfennig v R (1995) 182 CLR 461 – similarity of alleged conduct between two complainants CRIMINAL LAW – PROCEDURE – APPLICATION FOR ORDER FOR NO JURY – Criminal Code (Qld) s 615(1) – whether it is in the interest of justice for an accused person to be tried by a Judge sitting without a jury CRIMINAL LAW – APPLICATION FOR LEAVE TO CROSS-EXAMINE COMPLAINANT – Criminal Law (Sexual Offences) Act 1978 s 4 Criminal Code (Qld) ss 590AA, 604, 615, s 657. Criminal Law (Sexual Offences) Act 1978 s 4. Evidence Act 1977 (Qld) s 21AK. Barrac v DPP; Barrac v Stirling [2007] QCA 112 Jago v District Court of NSW (1989) 168 CLR 23 HML v The Queen (2008) 235 CLR 334 Pfennig v R (1995) 182 CLR 461 Phillips v The Queen (2006) 225 CLR 323 R v Brown [2011] QCA 16 R v Cossor (1994) QCA 403 R v Fardon [2010] QCA 317 R v Miller [2007] QCA 373 R v Prisk and Harris [2009] QSC 315 R v SBH [2008] QCA 204
COUNSEL:	Ms K L Fredericks for the Crown Mr M Hibble for the defendant
SOLICITORS:	Director of Public Prosecutions for the Crown Stevenson MacNamara Lawyers for the defendant