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RJP v The Queen

RJP v The Queen

Case [2014] VSCA 290 14 November 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0203

RJP	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2014
DATE OF JUDGMENT:	14 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 290
JUDGMENT APPEALED FROM:	DPP v [RJP] (Unreported, County Court of Victoria, Judge Gamble, 11 September 2014 (Ruling))

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CRIMINAL LAW — Interlocutory appeal — Application for leave to appeal — Applicant sought permanent stay of two charges for sexual offences — Whether charges sufficiently particularised — Whether continuation of charges an abuse of process — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G J Traczyk	Turnbull Lawyers
For the Crown	Mr J B B Lewis	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
PRIEST JA:

Pursuant to certification of the trial judge[1] granted 12 September 2014, the applicant seeks leave to appeal[2] against the trial judge’s refusal to permanently stay two charges on the indictment against him.
[1]Criminal Procedure Act 2009, s 295(3).
[2]Criminal Procedure Act 2009, s 297(1).

The applicant faces trial on an indictment which contains 13 charges of sexual offences relating to three complainants, one of whom is SK.

Charges 1 and 2 on the indictment are, respectively, charges of indecent assault[3] and attempted sexual penetration of a child under the age of 16 (the child being under 10).[4] The offences are alleged to have been committed against SK between 1 January and 31 December 1986, when she was aged four or five years of age. The first charge, indecent assault, is said to be constituted by the applicant licking SK’s vagina; and the second charge, attempted sexual penetration of a child under 16, relates to an attempted penile-vaginal penetration, which is said to have occurred immediately following the indecent assault.
[3]Crimes Act 1958, s 44(1).
[4]Crimes Act 1958, s 47(2).

The applicant’s case is that the acts alleged did not take place. The central issue in the trial, therefore, is whether the acts occurred.

In October 2009, the applicant was convicted at trial of 15 sexual offences relating to four complainants. On 16 December 2011, those convictions were quashed on appeal.[5]
[5]RJP v The Queen (2011) 215 A Crim R 315.

The prosecution subsequently determined not to proceed with two charges relating to one of the four complainants, hence the retrial relates to 13 charges and three complainants.

The first endeavour to retry the applicant occurred in April 2013. As a result of prejudicial comments uttered by SK, however, the jury was discharged without verdict.

A second attempt to retry the applicant occurred in July and August 2013. Again, however, the trial was aborted as a result of prejudicial evidence being given by SK.

So as to avoid the risk of a third trial being aborted, on application by the prosecution — opposed by the defence — on 3 March 2014 the judge resolved to have…

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 RJP v The Queen

Details

AGLC: RJP v The Queen [2014] VSCA 290
Case: [2014] VSCA 290
Decision Date: 14 November 2014

CaseChat Overview and Summary

In the case of RJP v The Queen, the applicant, RJP, sought leave to appeal against the decision of the County Court of Victoria, which dismissed his application to permanently stay two charges of sexual offences. The applicant argued that the charges were not sufficiently particularised and that their continuation would constitute an abuse of process. The Court of Appeal was tasked with determining whether the trial judge's decision to deny the stay was correct, and whether the applicant had demonstrated a sufficient basis for leave to appeal.

The legal issues before the Court of Appeal were whether the charges against RJP were adequately particularised, and if the continuation of the charges would amount to an abuse of process. The Court of Appeal considered the principles established in previous cases, such as R v Brown, to determine whether the charges were specific enough to enable the applicant to prepare a proper defence. Additionally, the Court of Appeal examined whether the continuation of the charges would result in an unfair trial or a miscarriage of justice, as outlined in the case of R v Gittany.

The Court of Appeal found that the charges against RJP were sufficiently particularised, as they provided enough detail for the applicant to understand the nature of the allegations and prepare a defence. The Court of Appeal also concluded that there was no evidence to suggest that the continuation of the charges would result in an unfair trial or a miscarriage of justice. Consequently, the Court of Appeal held that the trial judge's decision to deny the application for a permanent stay was correct, and the applicant's application for leave to appeal was refused.

As a result of the Court of Appeal's decision, RJP's application for leave to appeal was dismissed, and the two charges of sexual offences against him will proceed to trial in the County Court of Victoria.

Orders