The Queen v Thomas Johnston - [2012] ACTSC 166

THE QUEEN v THOMAS JOHNSTON
[2012] ACTSC 166 (5 November 2012)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – mode of trial - Criminal Proceedings Legislation Amendment Act 2011 (ACT) – prosecution filed new indictment – commencement of new proceedings – validity of election

Criminal Proceedings Legislation Amendment Act 2011 (ACT)

Supreme Court Act 1933 (ACT), s 68B

Evidence (Miscellaneous Provisions) Act 1991 (ACT), div 4.2B

R v Girvan [2012] ACTSC 142
W v The Queen (2001) 124 189 ALR 633
R v DF (no.2) [2012] ACTSC 3

No. SCC 240 of 2010

Judge: Burns J
Supreme Court of the ACT

Date: 5 November 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 240 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN
v
THOMAS JOHNSTON

ORDER

Judge:  Burns J
Date:  5 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

The mode of trial of the accused on the indictment of 16 December 2011 is trial by jury.

The accused is scheduled to be tried on 17 December this year with respect to five counts on an indictment dated 16 December 2011 (the second indictment). The charges against the accused are:

a. One count of intentionally and unlawfully administering to EK a stupefying or overpowering drug or poison or any other injurious substance likely to endanger human life or cause grievous bodily harm;

b. (in the alternative to Count 1) assault occasioning actual bodily harm;

c. Using a child for the production of child pornography (2 counts);

d. Intentionally possessing child pornography.

This was not the original indictment filed by the Crown. An earlier indictment dated 19 August 2010 (the first indictment) contained three counts, in the same terms as Counts 1, 2 and 3 in the second indictment. On 2 November 2010 the accused filed a notice of election for trial by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT). The accused was arraigned on the first indictment on 1 February 2011 and trial dates were notionally allocated in September 2011 by the Registrar. The matter did not proceed to trial in September 2011 due to the accused’s ill health.

After the second indictment was filed, the Crown filed an application to lead tendency and coincidence evidence and the accused applied to sever the indictment. On 22 March this year I granted the Crown’s application to lead tendency evidence, and refused the application to sever the indictment.

On 23 March this year the complainant EK gave evidence pursuant to Division 4.2B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Before the complainant gave evidence, counsel for the accused raised an issue as to the mode of trial. The issue arose because on 7 July 2011 the Criminal Proceedings Legislation Amendment Act 2011 (ACT) came into effect, amending s 68B of the Supreme Court Act so as to restrict the right of accused persons to elect trial by judge alone. It is opportune to set out s 68B in its current, amended form:

(1)A…

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 Thomas Johnston

Details

AGLC: The Queen v Thomas Johnston [2012] ACTSC 166
Case: [2012] ACTSC 166
Decision Date: 5 November 2012

CaseChat Overview and Summary

The defendant, Thomas Johnston, faced the court on charges laid under the Criminal Proceedings Legislation Amendment Act 2011 (ACT). The dispute centred on the mode of trial, specifically whether the trial should proceed by jury or by the judge alone. The prosecution had filed a new indictment, which raised questions about the validity of the defendant's earlier election to have the trial conducted by a judge alone.

The court was tasked with determining whether the filing of a new indictment by the prosecution constituted the commencement of new proceedings, which would affect the validity of the defendant's earlier election. The primary legal issue was whether the new indictment, which was filed after the defendant had elected for a judge-alone trial, rendered that election invalid and necessitated a trial by jury.

In reaching its decision, the court considered the legislative framework and the procedural implications of the new indictment. It concluded that the filing of the new indictment did indeed amount to the commencement of new proceedings. Consequently, the defendant's prior election to have the trial conducted by a judge alone was invalid. The court ordered that the mode of trial for the accused on the new indictment would be by jury, as the new indictment had effectively reset the procedural options available to the parties.

Orders

Orders of the court

The mode of trial of the accused on the indictment of 16 December 2011 is trial by jury.

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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