The Queen v R J - [2006] ACTSC 36

THE QUEEN v R J [2006] ACTSC 36 (26 APRIL 2006)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – preliminary examination on information for assault – committal for trial – evidence given of assault occasioning actual bodily harm and allegations by complainant of sexual offences – informations laid for these offences but no evidence taken – committal on all charges – proposed indictment containing those charges – stay of proceedings sought – entitlement to a preliminary examination on informations laid – whether matter can be remedied by Basha inquiry – information alleging sexual assault remitted for committal to Magistrates Court.

Magistrates Court Act 1930 (ACT), s 90AB

The Queen v Kent & Others; Ex Parte McIntosh & Others (1970) 17 FLR 65

Grassby v The Queen (1989) 168 CLR 1
R v Aaron Morriss (1993) 68 A Crim R 556
R v Drozd (1993) 67 A Crim R 112
R v Basha (1989) 35 A Crim R 337
Kelly v Apps (2000) 98 FCR 101

No. SCC 109 and 144 of 2005

Judge: Gray J
Supreme Court of the ACT

Date: 26 April 2006

IN THE SUPREME COURT OF THE  )
  )  No. SCC 109 and 144 of 2005
AUSTRALIAN CAPITAL TERRITORY  )

THE QUEEN
v
R J

REASONS FOR RULING

Judge:  Gray J
Date:  26 April 2006
Place:  Canberra

ON 31 MARCH 2006 THE COURT ORDERED THAT:

The order committing the accused for trial on the information alleging sexual assault be set aside.

The application for a stay of proceedings on both the proposed indictments before the court be dismissed.

By notice of motion dated 9 February 2006, R J, the accused sought a stay of proceedings in respect of two indictments upon which the Director of Public Prosecutions (the DPP) proposed that he be tried.

The first matter

In matter SCC 109 of 2005, the accused was charged that on the first day of October 2003 at Canberra in the Australian Capital Territory he assaulted J M. J M is the daughter of the complainant in the second matter and the charge may be said to arise generally out of the accused’s relationship with that complainant.

The accused seeks a stay in relation to this matter in respect of what the accused says is the failure to provide material by the DPP which the accused claims as relevant to the charge. On undertakings being given by Mr Lundy, on behalf of the DPP, as to the timely provision of the material sought, it seemed to me that there was no need to make any order or give any further directions.

The second matter

In matter SCC 144 of 2005, the DPP lodged with the court an indictment which charged the accused that:

1) Between 11^th day of November 2003 and 12^th day of November 2003 at Canberra in the Australian Capital Territory he assaulted S K;

2) Between 11^th day of November 2003 and 12^th day of November 2003 at Canberra he assaulted S…

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 The Queen v R J

Details

AGLC: The Queen v R J [2006] ACTSC 36
Case: [2006] ACTSC 36
Decision Date: 26 APRIL 2006

CaseChat Overview and Summary

The Queen brought charges against R J, resulting in a legal dispute concerning jurisdiction, practice, and procedure in criminal law. R J faced a preliminary examination on an information for assault, followed by a committal for trial. The complainant alleged assault occasioning actual bodily harm and sexual offences. Although informations were laid for the sexual offences, no evidence was taken during the proceedings. The committal resulted in charges being brought on all counts, and a proposed indictment was prepared.

The court had to determine whether the accused was entitled to a preliminary examination on the informations laid, and if the matter could be remedied by a Basha inquiry. The Basha inquiry is a process where a magistrate examines evidence to determine if it is sufficient to warrant a trial. The primary legal issues were whether the court had jurisdiction to proceed with the sexual assault charges without evidence and if the accused's right to a fair preliminary examination had been violated.

The court concluded that the accused was entitled to a preliminary examination on the informations laid, as the evidence was insufficient to proceed with the sexual assault charges. The court determined that a Basha inquiry could not remedy the matter because the evidence needed to be evaluated before proceeding to trial. Consequently, the information alleging sexual assault was remitted for committal to the Magistrates Court, allowing for a proper preliminary examination. The court's reasoning was based on the need to ensure a fair trial and protect the accused's rights. The final orders included the remittal of the information alleging sexual assault for committal to the Magistrates Court.

Orders