The Queen v Daniel McDonald and Dylan Deblaquiere - [2013] ACTSC 122

THE QUEEN v DANIEL MCDONALD AND DYLAN DEBLAQUIERE
[2013] ACTSC 122 (27 June 2013)

CRIMINAL LAW – Jurisdiction, Practice and Procedure – Adjournment, Stay of Proceedings or Order Restraining Proceedings – application for permanent stay of proceedings on the basis of abuse of process – application dismissed

CRIMINAL LAW – Particular Offences – Offences Against the Person – committing an act of indecency without consent s 60(1) of the Crimes Act 1900 (ACT) – definition of ‘indecency’ – whether acts may gain the character of indecency from their circumstances – they may – consent must be to the act and the circumstances

CRIMINAL LAW – Particular Offences – Offences Against the Person – using a carriage service to menace, harass or cause offence s 474.17(1) of the Criminal Code Act 1995 (Cth) – definition of ‘carriage service’ – definition of ‘offensive’ – whether regard may be had to “all the circumstances” – “all the circumstances” may be considered

Classification (Publications, Films and a Computer Games) Act 1995 (Cth), s 11
Crimes Act 1900 (ACT), ss 60, 67
Crimes Act 1900 (NSW), s 61N(1)
Crimes Act 1958 (Vic), s 47(1)
Criminal Code Act 1995 (Cth), ss 473, 474.17(1), Dictionary
Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth)
Medical Practitioners Act 1938 (NSW)
Telecommunications Act 1997 (Cth), s 7

Court Procedures Rules 2006 (ACT), r 4733(c)(ii)

Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth)

Adultshop.com Ltd v Members of the Classification Review Board (2007) 243 ALR 752
Baillon v Bull (1795) 2 H Bl 463; 126 ER 651
Cohns Industries Pty Ltd v Deputy Commissioner of Taxation (1979) 24 ALR 658
Crowther v Sala (2007) 170 A Crim R 389
Director of Public Prosecutions v Collins [2006] 4 All ER 602
Eades v Director of Public Prosecutions (NSW)(2010) 77 NSWLR 173
Earl of Pembroke v Warren [1896] 1 IR 76
Papadimitropoulos v The Queen (1957) 98 CLR 249
Pregelj v Manison (1987) 88 FLR 346
R v Court [1989] AC 28
R v DM [2010] ACTSC 137
R v Gillard (1999) 105 A Crim R 479
R v Goodwin (2009) 233 FLR 473
R v Harkin (1989) 38 A Crim R 296
R v Leece (1996) 65 FCR 544
R v Manson (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Clarke JA and Sully J, 17 February 1993)
R v McIntosh (Unreported, NSW Court of Criminal Appeal, Badgery-Parker, Bruce JJ and Loveday AJ, 26 September 1994)
R v Mobilio [1991] 1 VR 339
R v Smith [1974] 2 NSWLR 586
R v Smith [1995] 1 VR 10
Tasmania v Baker (2006) 168 A Crim R 148
Walton v Gardiner (1993) 177 CLR 378
Wright v McMurchy (2011) 211 A Crim R 535

No. SCC 405 of 2011
No. SCC 346 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 27 June 2013

IN THE SUPREME COURT OF THE )
) No. SCC 405 of 2011

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.

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Details

Case: [2013] ACTSC 122
Decision Date: 27 June 2013

CaseChat Overview and Summary

The Queen v Daniel McDonald and Dylan Deblaquiere involved an application for a permanent stay of proceedings, brought forth by two defendants charged with various offences, including committing an act of indecency without consent and using a carriage service to menace, harass, or cause offence. The case was heard in the Supreme Court of the Australian Capital Territory. The defendants sought a permanent stay on the grounds of an alleged abuse of process.

The court was tasked with determining whether the defendants' application for a permanent stay was justified on the basis of an abuse of process. This required the court to examine the definition of 'indecency' under section 60(1) of the Crimes Act 1900 (ACT) and whether the acts in question could gain the character of indecency from their circumstances. Additionally, the court had to decide whether the terms 'carriage service' and 'offensive' under section 474.17(1) of the Criminal Code Act 1995 (Cth) could be interpreted by considering "all the circumstances." The court also had to consider whether the defendants' actions amounted to an abuse of the court's process, warranting a permanent stay of proceedings.

The Supreme Court dismissed the application for a stay of the indictment. The court found that the term 'indecency' in the Crimes Act 1900 (ACT) could indeed gain its character from the circumstances of the act, but that consent must be specifically given to both the act and the circumstances. Regarding the Criminal Code Act 1995 (Cth), the court held that "all the circumstances" could be considered when defining 'carriage service' and 'offensive'. The court further concluded that the defendants had not demonstrated an abuse of process that would warrant a permanent stay of proceedings. As such, the application was dismissed, and the defendants' case would proceed as scheduled.

The court ordered that the application for a stay of the indictment be dismissed, allowing the proceedings to continue without further interruption.

Orders

Orders of the court

1. The application for a stay of the indictment be dismissed.

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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