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R v EKR[2021] QDC 89

DISTRICT COURT OF QUEENSLAND

CITATION:

R v EKR [2021] QDC 89

PARTIES:

R

(respondent)

v

EKR

(applicant)

FILE NO:

82/2019

DIVISION:

Criminal

PROCEEDING:

s 590AA application

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

4 May 2021 (orders re: “HML evidence”)

10 May 2021 (orders re: “Longman direction”)

21 May 2021 (reasons)

DELIVERED AT:

Maroochydore

HEARING DATE:

4 May 2021 and 10 May 2021

JUDGE:

Long SC, DCJ

ORDER:

  1. (1)
    On 4 May 2021 (re: admissibility of “HML evidence”):
  1. (a)
    The evidence that the defendant adjusted the complainant’s hoop dress, is irrelevant and therefore inadmissible.
  2. (b)
    The evidence of the complainant relating to an allegation of an uncharged incident which occurred in 1994 is admissible.
  1. (2)
    On 10 May 2021 (orders re: “Longman direction”):

The trial conducted in respect of the allegations presently before the Court does attract the operation of s 132BA of the Evidence Act 1977 and the jury should be directed in accordance with s 132BA of the Evidence Act 1977.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – SEXUAL OFFENCES – SIMILAR FACT – ADMISSIBILITY AND RELEVANCE – where, on 17 July 2020,  the Court of Appeal ordered a retrial of the 11 of 15 counts of sexual offences against the same complainant and on which the applicant was found guilty on 5 September 2019 – where this Court convened for that purpose on 4 May 2021 – where the respondent intends to rely upon an allegation that the applicant adjusted the complainant’s hoop dress as evidence demonstrative of the applicant’s sexual interest in the complainant, in accordance with the reasoning in HML v The Queen (2008) 235 CLR 334 – whether such evidence is capable of being demonstrative of a sexual interest in the complainant – whether the evidence is relevant and admissible.

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – SEXUAL OFFENCES – SIMILAR FACT – ADMISSIBILITY AND RELEVANCE – where the respondent intends to rely upon an allegation of an uncharged act committed by the applicant towards the complainant as evidence demonstrative of the applicant’s sexual interest in the complainant, in accordance with the reasoning in HML v The Queen (2008) 235 CLR 334 – where the applicant submits that the admissibility of such evidence would be prejudicial including on the basis that the uncharged act is of strikingly similar conduct to the counts on which the applicant was acquitted in the original trial and would not allow him the “full benefit” of his prior acquittals – whether the evidence is relevant and admissible.

CRIMINAL LAW – SEXUAL OFFENCES – WARNING REQUIRED OR ADVISABLE – WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN DIRECTION – where the applicant was convicted on 11 of 15 counts of sexual offences against the same complainant on 5 September 2019 by jury trial – where the Court of Appeal ordered a retrial of the 11 counts on which the applicant was found guilty on 17 July 2020 – where this Court convened for that purpose on 4 May 2021, a jury panel attended pursuant to s 36 Jury Act 1995 (Qld) and a jury was empanelled – where sexual offences against the applicant’s sister in law were alleged to have occurred between 1990 and 1993 – where there was a delay of 24 years between the alleged conduct and the making of the complaint – where in the time between the original trial and the re-trial and after the order for re-trial, section 132BA of the Evidence Act 1977 (Qld) was introduced – where the applicant contends that the jury should be directed in accordance with the decision in Longman v The Queen (1989) 168 CLR 79 – whether a Longman direction is appropriate or whether this jury should be directed in accordance with section 132BA of the Evidence Act 1977 (Qld).

LEGISLATION:

Criminal Code 1899 (Qld) ss 591, 597C, 669

Evidence Act 1977 (Qld), ss 132BA, 154

Jury Act 1995 (Qld), s 36

CASES:

Dupas v R (2012) 40 VR 182

HML v The Queen (2008) 235 CLR 334

Longman v The Queen (1989) 168 CLR 79

Maxwell v Murphy (1957) 96 CLR 261

Pfennig v The Queen (1995) 182 CLR 461

R v Christie [1914] AC 545

R v [Redacted] [2020] QCA 150

R v Storey (1978) 140 CLR 364

Rodway v The Queen (1990) 169 CLR 515

Washer v Western Australia (2007) 234 CLR 492

COUNSEL:

Slack, WM for the respondent

Glynn QC, AJ and Longhurst, M for the applicant

SOLICITORS:

Office of the Director of Public Prosecutions for the respondent

Sunshine Coast Legal for the applicant

Introduction

  1. [1]
    The following are the reserved reasons for rulings given upon the defendant being retried upon 11 allegations of sexual offending against his younger sister-in-law, in a period spanning the years 1990 to 1993. There was no complaint made to police until 2017, with the defendant’s arrest occurring in July of that year. 
  2. [2]
    This is not the first time a jury has been empanelled in this Court to decide these allegations.  On 2 September 2019, the defendant was arraigned and pleaded not guilty to 15 such allegations and on 5 September 2019 he was convicted of 11 and acquitted of 4 of those allegations.  He appealed against the convictions and on 17 July 2020, the Court of Appeal ordered that those convictions be set aside and that the defendant be retried. 
  3. [3]
    Accordingly and on 4 May 2021, the Court convened for that purpose.  After some discussion as to the process to be adopted, it was determined to be appropriate to proceed upon the 11 allegations in the indictment before the Court and as to which retrial had been ordered and, therefore, upon the pleas entered by the defendant on 2 September 2019.  For the sake of convenience and for avoidance of unnecessary speculation, it was agreed that the count to be retried and numbered 13 in the original indictment, would be effectively referred to as the eleventh count.

Admissibility of “HML evidence”

  1. [4]
    At the prior trial, the complainant had given evidence of an incident on the occasion when she was a bridesmaid at the wedding of the defendant and her older sister. She described being 13 years old, in April 1990, with the location being that “… we were in a room or a place at a hotel that would’ve been booked to prepare for the wedding, and there was quite a few people that were around there” and that when dressing, she saw the defendant there. She described:

“I remember that he was there at some point, we probably had been there, getting ready as like the woman perhaps preparing or getting ready, and I remember that he was there and he was attempting to fix my skirt or he had his hands up my skirt trying to adjust the hoop that was underneath.”[1]

 And her evidence then continued as follows:

“So how far up were his hands? … so his hands were right up my leg. So – the top part of my leg, above the knee and then around to the side, adjusting the dress.”[2]

  1. [5]
    Notwithstanding that at the prior trial, such evidence was admitted and allowed to be considered by the jury as being capable of being viewed in application of the directions given in accordance with HML v The Queen[3] and as potentially demonstrating the defendant’s sexual interest in the complainant, at this trial objection was taken to any such reasoning in reliance upon the evidence and indeed to the admissibility of it.
  2. [6]
    For the defendant, particular reliance was placed upon the judgment of Hayne J in HML at paragraphs [172] – [175]. In short, the contention, which was accepted in the ruling made as to the inadmissibility of this evidence, was that it lacked capacity to be other than equivocal, even when considered in the context of the other evidence to be given by the complainant as to her allegations, and so as to have capacity to attract such reasoning.
  3. [7]
    Notwithstanding what may have been assumed to be an implication in the evidence, there is an absence of any actual assertion by the complainant that the defendant did other than adjust the hoop for the dress and more particularly the absence of any suggestion of any touching of her on the top part of her leg. As contended for the defendant, in the circumstances and particularly with other persons around and the apparent purpose of adjusting the hoop skirt being involved, there is nothing overtly sexual about the defendant’s alleged conduct in that incident. It may be noted that neither was the prosecutor able to point to any more definite evidence that was expected to be given by the complainant in respect of this incident, either from her statement or from any conference conducted with her in anticipation of the trial. In fact, what was noted is that in her statement, she had described the incident as follows:

“I remember an incident that happened while I was getting changed in preparation for that wedding, we were staying at a motel. I remember other family members being around and my … arriving there at one point. I remember [EKR] being on his hands and knees with one hand up under my skirt. The dress was a hoop skirt and [EKR] was attending to the hoop of the dress with his hand up my skirt. I remember feeling weird about what he was doing.”[4]

  1. [8]
    The essential problem not just because of what is described but also having regard to the immediate context in which the incident is said to have occurred, is the lack of capacity for any implication of manifestation of sexual interest in the complainant. And the lack of any independent capacity of the evidence to carry any such implication cannot be and is not logically able to be advanced by any reference to the broader context of other more definite allegations of such conduct, so as to allow for this evidence to be relied upon to support the allegations which are charged, upon the test derived from HML
  2. [9]
    Further, it was not the prosecution submission that this evidence had any other particular relevance, including as to providing any context or insight into the nature of the relationship between the defendant and the complainant. Accordingly, the ruling was that the evidence was irrelevant and therefore inadmissible.[5]
  3. [10]
    The second such objection was in respect of evidence to be given by the complainant in respect of an incident she describes as occurring in 1994 and after she had turned 17 (in December 1993) and more particularly, subsequent to her father’s death and the wake held in April 1994.  The conduct which is subject of that incident is not the subject of any charge on the indictment and again the prosecution seek to rely on it as evidence demonstrative of the defendant’s sexual interest in her.  It suffices to note that, if accepted, the evidence was of conduct clearly capable of carrying such connotation and it was ruled to be admissible upon the basis particularly identified in HML v The Queen[6] and as potentially demonstrating the defendant’s sexual interest in the complainant and therefore the likelihood of his commission of each of the charged offences.
  4. [11]
    It may be noted that the immediate context for this evidence at the previous trial was the complainant’s reference to the incidents which were charged as counts 14 and 15 and which she described as occurring at or about the time of her father’s death and a wake at the house in Buderim in April 1994.  However and although also described as occurring at that same house, it was tolerably clear that the complainant alleges this further incident as completely separate and occurring on another occasion, sometime after that wake and when she was aged 17. 
  5. [12]
    The defendant was acquitted of the allegations charged as counts 14 and 15 and his submission was that in the circumstances where this incident is also alleged to have occurred when she was 17 years old and occurring at the Buderim house with other persons being nearby (the evidence is that at the time the defendant performed oral sex on her, her mother and sister were in a separate and nearby bathroom), the evidence:
    1. (a)
      “is strikingly similar conduct to the acquitted counts, in time and circumstance”;[7]
    2. (b)
      “is of limited relevance to the jury’s consideration of the current counts, the majority of which purportedly occurred during camp trips, where it is alleged that the defendant lured the complainant away to perform sexual acts”, which “allegations also occur at a time when the complainant was over 16, as such, the issue of consent may unfairly burden the defendant in rebuffing this allegation at trial”;[8] and
    3. (c)
      “… is of limited probative weight to the remaining allegations and is highly prejudicial.  This prejudice falls squarely into the category of unfair prejudice[9] in the context of the defendant’s previous acquittals, in circumstances where the defendant is entitled to enjoy the full benefit[10] of such acquittals.”[11]
  6. [13]
    In these contentions, there may be observed to be a lack of recognition of the reasoning adopted in HML, as to the potential relevance in admissibility of such evidence, in satisfaction of the “Pfennig test”,[12] upon the basis of being a demonstration or manifestation of a defendant’s sexual interest in a particular complainant and therefore available for use as evidence making it more likely that the defendant also acted upon such sexual interest on a different occasion which is the subject of a charge.  Further, there is no identified unfair prejudice to a defendant in the recognised admission and use of such evidence, subject to appropriate directions as to the limitations of that use.  Moreover, the absence of the complainant’s consent is necessarily an element to be proved in relation to each of the allegations of sexual assault of her, and it was simply not demonstrated how it was contended that the defendant was unfairly burdened in rebuffing this further allegation at trial, particularly when it was clearly understood that his response is, as given in his evidence in the first trial, that there had never been any sexual interest in the complainant, on his part, nor any manifestation of that by him. 
  7. [14]
    The final contention is also problematic.  In the first instance, there is the reality that notwithstanding the further acquittals of the defendant in respect of counts 11 and 12 (which also related to allegations of sexual assault occurring, albeit on other separate occasions, within the same period when at Great Keppel Island for the September 1993 school holidays) when this remained the general time and place particularised in respect of what remained as the 4th to 11th counts, alleging sexual assault.
  8. [15]
    The effective contention was that this further and uncharged allegation was “part and parcel” of the circumstances of the incidents which were charged as counts 14 and 15 and which were the subject of acquittals at the prior trial.  Therefore, it was contended that admission of this additional evidence would have the effect of denying the defendant’s entitlement to the “full benefit” of those acquittals, as referred to in the decision in Washer v Western Australia.[13]
  9. [16]
    That submission was not accepted. As has been outlined above, in a factual sense it was not established that this additional allegation was in any factual sense “part and parcel” of the allegations which had been the subject of the acquittals in respect of counts 14 and 15, at the prior trial. Neither was it, in any relevant sense, established that there would be any challenge, let alone denial, of the defendant’s “full benefit” of those acquittals, in circumstances where in the prosecution case, there would be no evidence as to or reliance upon the allegations which were the subject of those acquittals.
  10. [17]
    As discussed in the joint judgement in Washer[14], there may be difficulty in understanding what the concept of “full benefit” of a prior acquittal entails, in reference to any reliance upon evidence relevant to that acquittal in subsequent proceedings. The issue in Washer was not as to the admission of the evidence relied upon by the prosecution in the prior trial, but rather as to whether upon the uncontested admissibility of it, as relevant to proof of another and different conspiracy at the later trial, evidence of the fact of the earlier acquittal was admissible.
  11. [18]
    Relevantly, to the objection taken in this matter, it was observed that the following principles were to be taken from the decision in R v Storey[15]:
  1. (a)
    “… evidence tending to show that an accused was guilty of an offence of which he has been acquitted may be admitted if it is otherwise relevant and if the jury can and is directed not to interpret it in such a way as to deny the acquittal.”[16]
  2. (b)
    relevantly, as noted by Barwick CJ:

“The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. Such evidence will be admissible, provided it is relevant to the subsequent charge or to a defence to it but must only be allowed to be used to support that charge or negative a defence. Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal.

… the citizen must not be twice put in jeopardy, that is to say, as relevant to the present discussion, must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or of in any sense being treated as guilty”[17]; and

  1. (c)
    as observed by Gibbs J:

“…there is a well-established principle that a verdict of acquittal once given is binding and that the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted. Whether this principle is regarded as an extension of autrefois acquit, or as an application of the rule against double jeopardy, does not much matter. Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted. … However evidence otherwise relevant is not rendered inadmissible by the fact that it may tend to show that the accused was guilty of an offence of which he has been acquitted. Where such evidence is admitted it will sometimes be necessary to warn the jury that the accused having been acquitted in the previous proceedings is to be taken as entirely innocent of the offence with which he was then charged. Such a warning will hardly be necessary if the question whether the accused has committed that offence is not raised in the later proceedings, and it would not be likely to occur to the jury to consider that question.”[18]

  1. [19]
    In this case, there was nothing in the evidence to which objection was taken which was directed at showing that the defendant was guilty of any offence of which he had been previously acquitted or even having any such tendency. Rather, the evidence was directed at and to be relied upon in the identified way of being relevant to the likelihood that the defendant committed the offences upon which he was to be retried.

Application of s 132BA of the Evidence Act 1977

  1. [20]
    When the Court convened for this retrial on 4 May 2021, a jury was then selected from the panel brought before the Court under s 36 of the Jury Act 1995, which provides:

“36 Sheriff to arrange for attendance of jury panel

  1. (1)
    When a civil or criminal trial is about to begin, the sheriff must arrange for the attendance of a jury panel before the court.
  1. (2)
    The panel must be formed from among the persons (the relevant prospective jurors) who—
  1. (a)
    have been summoned for jury service for the relevant jury service period; and
  1. (b)
    have not, after being summoned, been excused from jury service or excluded from the list of prospective jurors because they are not qualified for jury service; and
  1. (c)
    are not currently serving on a jury.
  1. (3)
    The panel must be formed by selection from among the relevant prospective jurors in a way decided by the sheriff subject to any relevant direction issued by the Senior Judge Administrator under section 13(c).
  1. (4)
    When the panel is formed, the sheriff must give the instructions to the members of the panel necessary to ensure their attendance before the court.”
  1. [21]
    For the defendant, it is contended that this Court is not required to instruct this jury in accordance with s 132BA of the Evidence Act 1977, which provides as follows:

132BA Delay in prosecuting offence

  1. (1)
    This section applies in relation to a criminal proceeding in which there is a jury.
  1. (2)
    The judge may, on the judge’s own initiative or on the application of a party to the proceeding, give the jury a direction under this section if the judge is satisfied the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting an offence the subject of the proceeding.
  1. (3)
    For subsection (2), a significant forensic disadvantage is not established by the mere fact of delay in prosecuting the offence.
  1. (4)
    In giving the direction, the judge—
  1. (a)
    must inform the jury of—
  1. (i)
    the nature of the disadvantage; and
  1. (ii)
    the need to take the disadvantage into account when considering the evidence; but
  1. (b)
    must not warn or in any way suggest to the jury that—
  1. (i)
    it would be dangerous or unsafe to convict the defendant; or
  1. (ii)
    the complainant’s evidence should be scrutinised with great care.
  1. (5)
    However, the judge need not give the direction if there are good reasons for not doing so.
  1. (6)
    The judge must not, other than under this section give the jury a direction about the disadvantages suffered by the defendant because of the effects of delay in prosecuting the offence.
  1. (7)
    In this section—

delay, in prosecuting an offence, includes delay in reporting the offence.”

  1. [22]
    That provision commenced operation on 15 September 2020 and the application of it is prescribed by s 154 of the Evidence Act 1977, which accompanied that introduction and commencement of s 132BA, and provides as follows:

154 Application of s 132BA

  1. (1)
    Section 132BA applies in relation to a criminal proceeding only if the trial of the proceeding starts on or after the commencement.
  1. (2)
    For subsection (10), the trial of a criminal proceeding starts when, under the Jury Act 1995, section 36, a jury panel attends before the court in which the trial is to be conducted.
  1. (3)
    Also, for subsection (1), it does not matter whether the offence the subject of the criminal proceeding was committed before, or is committed after, the commencement.”
  1. [23]
    For the defendant, it is contended that this jury should be directed, in respect of the delay in bringing charges against the defendant, in accordance with the decision in Longman v The Queen[19], as the jury at his previous trial had been.
  2. [24]
    It is clear that the statutory effect of s 132BA is to amend the law so that the form of warning or jury direction required by the decision in Longman is no longer to be given to juries but to allow for a direction drawing attention to the need to take into account any significant forensic disadvantage which is identified for a defendant, because of the effects of delay in prosecution, apart from what may be considered as such a disadvantage occasioned by the mere fact of delay. Accordingly and understandably, the defendant seeks to retain the benefit of what is considered the more favourable “Longman direction”, particularly identified here in terms of the direction or warning as to the dangerousness of conviction of the defendant. 
  3. [25]
    It may be accepted that apart from the application of s 132BA, it would be appropriate to give such a direction as it was given at the previous trial.  However, the difficulty confronting the defendant is the effect of the statutory provisions and the contention that s 132BA is not applicable is not to be accepted. 
  4. [26]
    First, there can be no acceptance of the proposition that any right of the defendant to a Longman direction crystallised when he was first arraigned or at his earlier trial.  Such a proposition is inconsistent with the general principles recognised in Rodway v The Queen[20] and earlier in Maxwell v Murphy[21]The general rule at common law is as described by Dixon CJ in Maxwell v Murphy:

“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger. “No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done”.”[22] (citations omitted)

This and other judgments in that case were directed at the distinction to be drawn between laws directed at or affecting substantive and accrued rights or liabilities and those which are directed at the practice and procedure by which such rights and liabilities may be determined and enforced. 

  1. [27]
    In Rodway, the determination was that the amendment of a provision of the Tasmanian Criminal Code, to allow for conviction of persons on the uncorroborated evidence of a complainant in respect of offences like those charged here, was not to affect existing rights or obligations and therefore took effect as to the way in which rights fell to be determined at trial and therefore did not fall within the common law presumption against retrospective operation of a statute.  The conclusion was explained as follows:

“The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance.”[23]

  1. [28]
    It was further observed:

“But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.”[24]

“A right to a particular procedure is acquired only when the occasion for the application of that procedure arises. Indeed, the difficulty experienced by counsel for the applicant in identifying an earlier time at which such a right might be acquired points to the inevitability of that proposition. If a right to a particular form of trial arises before trial, there is no logical reason for not saying that it is acquired upon the commission of the offence to be tried or even at the time of committal, and yet to say it is acquired at any earlier time means that it must be a right vested in all.”[25]

  1. [29]
    In effect, the defendant seeks to effectively invert the statement in the first sentence in the passage referred to, so as to seek to bring the focus to the occasion which arose at his prior trial, rather than in this proceeding.  The obvious difficulty is that what must be determined is the way in which this proceeding is to be conducted, by direction to the jury. 
  2. [30]
    There is no support to be found for the defendant’s contentions in:
    1. (a)
      there being any relevant significance in understanding that as is commonly the case, the order of the Court of Appeal in this matter was for the retrial of the allegations of which the defendant had been previously convicted, because of any identified need to remedy an identified miscarriage of justice in respect of that first trial.  It may be noted that the power for such an order in s 669 of the Criminal Code is expressed in terms ordering “a new trial”: nor
    2. (b)
      by having regard to s 597C of the Criminal Code, which in the first instance deals with the arraignment of defendants or that process whereby they “be called upon to plea to the indictment” and which may be noted to be allowed “on presentation of the indictment or at any later time” and therefore as the provision contemplates not necessarily coincidentally with any attendance of any jury panel pursuant to s 36 of the Jury Act 1995.  More particularly, nor upon any reliance upon s 597C(3), which is as follows:

(3) The trial is deemed to begin and the accused person is deemed to be brought to trial when the person is so called upon.”

Whatever may be the remaining effect of this provision in the context of the statute in which it appears and particularly by reference to the words “deemed to be brought to trial” being apparently directed at the operation of s 591,[26] it is notable that it is expressed as a deeming provision.

  1. [31]
    Quite apart from any difficulty in resorting to such a deeming provision in a different statute, as the argument for the defendant correctly noted, the key question devolves to one of interpretation of the provisions of ss 132BA and 154, as they were simultaneously introduced into the Evidence Act.  Notably, with s 154(2) providing a definition as to when the “trial of a criminal proceedings starts”, which is to different effect to anything that may be gleaned from s 597C(3) of the Criminal Code.   Whilst it may be that the point at which a jury panel attends pursuant to s 36 of the Jury Act 1995, will in many cases substantially coincide with the timing of the first arraignment of a defendant on an indictment to be tried, it need not necessarily be so, as the procedure adopted at the request of the defendant in this case is an example.  And importantly, the focus in s 154(2) is upon the relevant attendance of the jury panel, rather than any arraignment of the defendant. 
  2. [32]
    Moreover, the difficulty is in understanding that the definition in s 154(2) is for the application of s 154(1), which is directed at the application of s 132BA “in relation to a criminal proceeding”[27] and that such application is “only if the trial of the proceeding starts on or after the commencement”.  The combined effect is as to the application of a provision which itself is directed at the instructions to be given to a jury, which could only conceivably be those formed after the commencement of the provision.  To adopt the statement made in Rodway, the occasion for the application of the form of direction or procedure mandated by statute, can only conceivably be in the trial as it is now occurring after the commencement. 
  3. [33]
    Accordingly it may be seen that the purpose and effect of s 154(3) is to legislatively endorse that s 132BA is to be generally applicable to offences committed prior to the commencement and the statutory purpose and effect of ss 154(1) and (2) is to make s 132BA applicable on all occasions for its application after that commencement, except those where the trial was underway at the time of the commencement, in the sense that the jury panel had attended for the selection of that jury, prior to the commencement date.
  4. [34]
    The essential difficulty confronting the defendant’s argument therefore lay in understanding that not only is the exposition of the common law principle against retrospective application of statutory provisions, against application of it to such a provision affecting only the way in which the allegations in the indictment are to be determined, but also in express recognition of statutory power to effect such retrospective application, in any event.
  5. [35]
    For these reasons, the ruling was that this jury was required to be directed in accordance with s 132BA of the Evidence Act 1977.

Footnotes

[1]  T 2/9/19-14.43-47.

[2]  T 2/9/19-15.1-2.

[3]  (2008) 235 CLR 334.

[4]  MFI C: Complainant’s statement dated 14/09/2017, at [6].

[5]  Ultimately the issue further emerged in the trial when the complainant gave evidence in response to a broad question of the prosecutor as to her preliminary complaints to a member of a church, in 2017. The complainant responded in terms which began “I was telling … that I thought that the contact – when it had started – from the – from the contact with the – under the dress at the wedding … at the prep for the wedding, that he had  …. touched me.” This had not earlier been identified as being in any way relevant to the ruling and the parties agreed to a joint admission in the following terms: “ … the parties agree that [the complainant] has previously said that in preparation for [EKR’s]  wedding, [EKR] adjusted [the complainant’s] hoop skirt  in the presence of a number of witnesses who were guests at the wedding”, with an accompanying direction that the reference to that incident in the evidence of the complainant was irrelevant to any issue in the trial.

[6]  (2008) 235 CLR 334.

[7]  Applicant’s written outline of submissions filed 4/05/2021, at [16].

[8]  Ibid, at [17] – [18].

[9]  Reference is made to R v Christie [1914] AC 545 and consideration of this issue in Dupas v R (2012) 40 VR 182, at [175].

[10]  Reference is made to Washer v Western Australia (2007) 234 CLR 492.

[11]  Applicant’s written outline of submissions filed 4/05/2021, at [19].

[12]  (1995) 182 CLR 461.

[13]  (2007) 234 CLR 492.

[14]  (2007) 234 CLR 492, at [29] and JJ, per CJ, Heydon and Crennan JJ and per Hayne J at [107] – [113].

[15]  (1978) 140 CLR 364.

[16]  (2007) 234 CLR 492, at [32].

[17]  Ibid.

[18]  (2007) 234 CLR 492, at [35].

[19]  (1989) 168 CLR 79.

[20]  (1990) 169 CLR 515.

[21]  (1957) 96 CLR 261.

[22]Maxwell v Murphy (1957) 96 CLR 261, at 267.

[23]Rodway v The Queen (1990) 169 CLR 515, at 518.

[24]  Ibid, at 521.

[25]  Ibid, at 523.

[26]  The provisions which now constitute s 597C(1) and (3) originally appeared in s 594 of the Criminal Code, until relocation pursuant to Act 55 of 2003. At an earlier time and by Act 3 of 1997, the words “on presentation of the indictment or at any later time” were inserted to replace the words “at the time appointed for the trial of an accused person” and by that same Act, s 590 was omitted and replaced in the form in which it now appears. Previously, that section had allowed any person who had been committed for trial for an indictable offence to “orally or  in writing at any time during the Sittings of the Court held after his committal, make application  to the Court to be brought to his trial”, with the further provision that where such application was made and the person making that application “is not brought to  trial by the last day of the Sittings of the Court next following the Sittings during which the application was made, he is entitled to be discharged”.

[27]  Which is defined in Schedule 3 of the Evidence Act 1977, as follows: “criminal proceeding includes a proceeding wherein a person is charged with a simple offence, and an examination of witnesses in relation to an indictable offence”, with the word “proceeding” also separately and relevantly defined as meaning “… any civil, criminal or other proceeding or inquiry, reference or examination in which by law or by consent of parties evidence is or may be given, and includes an arbitration”.

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Editorial Notes

  • Published Case Name:

    R v EKR

  • Shortened Case Name:

    R v EKR

  • MNC:

    [2021] QDC 89

  • Court:

    QDC

  • Judge(s):

    Long SC, DCJ

  • Date:

    21 May 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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