R v Ian Kenneth Raymond (No 1)

R v IAN KENNETH RAYMOND (No 1)
[2014] ACTSC 122 (15 May 2014)

PRACTICE AND PROCEDURE – Application under s 68D Supreme Court Act 1933 (ACT) – summary matters in Magistrates Court – six matters relating to charges before court, two further charges of assault occasioning actual bodily harm – Crown foreshadowed application for tendency evidence in hearing of summary charges – whether in interests of justice to deal with charges in present proceedings

Crimes ACT 1900 (ACT), s 24
Supreme Court Act 1933 (ACT), s 68D

EX TEMPORE JUDGMENT

No. SCC 146 of 2013

Judge: Burns J
Supreme Court of the ACT

Date: 15 May 2014

IN THE SUPREME COURT OF THE     )          No. SCC 146 of 2013
  )
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN: REGINA
Respondent
v

AND:IAN KENNETH RAYMOND
Applicant

ORDER

Judge:Burns J
Date:15 May 2014
Place:Canberra

THE COURT ORDERS THAT:

The application under s 68D of the Supreme Court Act 1933 (ACT) is dismissed.

On 28 March 2014, the applicant was found not guilty by a jury of two counts of sexual intercourse without consent (s 54(1) Crimes Act 1900 (ACT)) and one count of attempted sexual intercourse without consent (s 44(1) Crimes Act). At the conclusion of the trial the applicant foreshadowed an application that certain summary matters pending in the Magistrates Court be dealt with in the present proceedings. Those matters arose from the applicant’s relationship with the complainant in the trial before this Court. The application came for argument by the parties today. I do not propose to deal with those matters under s 68D of the Supreme Court Act 1933 (ACT) and I will give brief reasons for doing so.
It is clear that the legislature, in enacting s 68D and subsequently amending it into its current form, intended to deal with a problem which had arisen in the administration of criminal justice whereby a person who was charged with an indictable offence had a related or backup charge remaining in the Magistrates Court which could only be dealt with in the Magistrates Court because it was a summary offence.
The provisions of s 68D now allow for this Court to deal with such offences. However, it is not mandatory that this Court deal with such offences in circumstances where the Court does not consider it to be in the interests of justice to do so.
In my opinion, it was not the intention of the legislature that this Court should become involved in a complex summary hearing with applications such as tendency applications being made in the course of that process. It was intended as a simple process in order to deal with backup charges which were related to the charge in the Supreme Court.
If the only matters that remained to be resolved were the charges arising out of the six incidents that have been referred to by counsel for the applicant in these proceedings, then there may well be some justification for dealing with those matters in these proceedings. However, there are, in addition, two further charges of assault occasioning actual bodily harm (s 24 Crimes Act 1900 (ACT)) which are pending. The Crown intends to make an application to lead tendency evidence with respect to not only the six matters to which counsel has referred, but also the two further charges of assault occasioning actual bodily harm.
In those circumstances, this court is simply not in a position to be able to deal with those matters. In my opinion, it is not in the interests of justice to deal with those charges in these proceedings.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 4 June 2014

Counsel for the Crown:  Ms M Jones
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the Accused:  Ms A Tonkin
Solicitor for the Accused:  Ben Aulich & Associates
Date of Hearing:  15 May 2014
Date of Judgment:  15 May 2014

Ian Kenneth Raymond was before the court in relation to six charges before the Magistrates Court, including two further charges of assault occasioning actual bodily harm. The Crown had foreshadowed making an application for evidence of a tendency under s 134 of the Evidence Act 1995 (ACT) in the hearing of the summary charges. Raymond applied to the Supreme Court under s 68D of the Supreme Court Act 1933 (ACT) for the charges to be dealt with in the present proceedings, arguing that it was in the interests of justice to do so. The court had to determine whether it was in the interests of justice to deal with the charges in the current proceedings, considering the application of s 68D of the Supreme Court Act 1933 (ACT) and the appropriate considerations for such an application.

The court examined the relevant statutory provisions and previous cases to determine the appropriate considerations for an application under s 68D of the Supreme Court Act 1933 (ACT). The court considered the potential prejudice to the accused if the matters were not dealt with together, the need for expedition in the resolution of the matters, and whether the matters were related in a way that they should be heard together. The court noted that the accused had not provided any evidence to support his contention that the interests of justice required the charges to be dealt with in the current proceedings. The court concluded that the application did not meet the threshold for the exercise of the court’s discretion under s 68D of the Supreme Court Act 1933 (ACT). The court held that it was not in the interests of justice for the charges to be dealt with in the current proceedings.

The application under s 68D of the Supreme Court Act 1933 (ACT) was dismissed. The court found that the application did not meet the required threshold for the exercise of the court’s discretion and that it was not in the interests of justice for the charges to be dealt with in the current proceedings. The court did not provide any further orders.

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