R v ZSK

[2006] QDC 16

DISTRICT COURT OF QUEENSLAND

CITATION:

R v ZSK [2006] QDC 016

PARTIES:

R

v

ZSK

Defendant

FILE NO/S:

Indictment 3634/05

DIVISION:

PROCEEDING:

Pre-trial application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

7 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2006

JUDGE:

McGill DCJ

ORDER:

Count 1 permanently stayed

CATCHWORDS:

CRIMINAL LAW – Stay of Indictment – notice of alibi – indictment alleging longer period extending beyond alibi in response – whether abuse of process – stay granted

Criminal Code s.564(1); s.590A

Jago v District Court of NSW (1989) 168 CLR 23 – cited.

R v H (1995) 83 A Crim R 402 – applied.

R v Jacobs [1993] 2 Qd R 541 – applied.

Ridgeway v R (1995) 184 CLR 19 – cited.

COUNSEL:

V.A. Loury for the Crown

J. McInnes for the defendant

SOLICITORS:

Director of Public Prosecutions for the Crown

Legal Aid Queensland for the defendant

1. On 15 December 2005 an indictment was presented in this court against the defendant alleging one count of rape and five counts of indecent treatment of a child under 12. It has not yet come to trial, but the pre-trial recording of the evidence of the complainants is listed to take place in the immediate future. The defendant has now applied pursuant to section 590AA of the Criminal Code for an order that Count 1 of the indictment, the rape charge, be stayed, on the basis that the continuation of the prosecution of that count[1] against the defendant would be fundamentally unfair in a way which cannot now be avoided or remedied.

   [1]It was not disputed that there can be a stay of one count of an indictment alleging several counts and that seems in principle to be correct.

1. The background to the matter is that the complainants, twin sisters, were placed in a foster home on 6 January 2001.  Count 1 is an allegation that on a date unknown between 5 January 2001 and 6 March 2001 at that foster home the defendant raped one of the complainants.[2] Evidence of this offence comes effectively only from that complainant. On two occasions she made statements to the police which were recorded and are available to be led in evidence at the trial under section 93A of the Evidence Act.  In the first statement on 9 August 2003 there was a complaint of touching on the vagina, but no complaint of rape.  When asked whether the defendant had touched her with any other part of his body she replied no.

   [2]She is also the complainant for Court 2; her sister is the complainant for the other counts.

1. In the second tape, made on 15 September 2004 for the purpose of narrowing down the time frame, at page 5 she was asked about “the last time that it happened”, and said she thought it was the week before she left.  She continued that she could remember one specific time, she thought it was the week before she left, and said something…