R v QG

[2018] ACTSC 48

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v QG

Citation:

[2018] ACTSC 48

Hearing Date:

21 February 2018

DecisionDate:

21 February 2018

Before:

Elkaim J

Decision:

See [11] 

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, indictment or presentment – application to sever an indictment – application for separate trials – whether the probative value of the evidence outweighs its prejudicial effect

Parties:

QG (Applicant)

The Queen (Respondent)

Representation:

Counsel

J Stewart (Applicant)

D Swan (Respondent)

Solicitors

Boxall Legal (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCC 251 of 2017

ELKAIM J:

1. The applicant is due to stand trial in respect of an indictment containing nine counts in July 2018. A tentative date of 9 July 2018 has been set and the trial is estimated to run for five days.

1. On 25 January 2018, an application was filed on behalf of the applicant in which he seeks an order that Count 1 be severed from the balance of the counts so that, in effect, there will be separate trials.

1. Count 1 is alleged to have occurred between 1 December 2016 and 10 January 2017. All of the other counts are alleged to have occurred on 20 March 2017.

1. The fact that there is about a three month interval between Count 1 and the other counts is probably not of great significance. It is, however, significant that the alleged offending that is covered by Count 1 is of a different nature to that covered by the other counts.

1. Count 1 alleges that the applicant made a threat to kill his ex-partner and, in so doing, carried out very serious acts of violence. It is alleged that the applicant threatened his ex-partner by holding a knife to her throat.

1. The balance of the counts also involve violence, but have as an additional element that the assaults were accompanied by sexual misconduct. It is alleged that the applicant forced the complainant to commit sexual acts on him.

1. The applicant submits that his capacity to defend Counts 2 to 9 will be severely prejudiced by a finding of guilt in respect of Count 1. It is conceded that the evidence in respect of Count 1 is very strong. One would expect that the jury would be likely to find that the applicant is guilty in respect of that count. If that were to occur, the accused submits that he would have little prospect of defending the balance of the counts because the jury would have taken a view about him such that they would succumb to the evidence that was led in respect of the other counts. 

1. The respondent has submitted that it is important that the evidence in respect of Count 1 is admitted in respect of the other counts because it assists in establishing the violent nature of the relationship that existed between the applicant and the complainant. While that is a very sound and compelling submission, there are two caveats.

1. Firstly, the respondent’s submission does not overcome the degree of prejudice that will almost inevitably arise from a finding of guilt in respect of Count 1. Secondly, there is other relationship evidence upon which the respondent can rely, helpfully set out in the respondent’s written submissions. But for that alternative evidence, my decision would have been more difficult.

1. In my view, because of the overwhelming nature of the prejudice that would flow from a finding of guilt in respect of Count 1, the counts should be severed. My orders will no doubt be raised at the callover on 4 July 2018. One would hope that the two trials could be run consecutively, presumably with the trial in respect of Count 1 proceeding first and then the balance of the counts proceeding immediately afterwards.

1. Accordingly, I make the following orders:

(a)The indictment is severed to separate Count 1 from Counts 2 to 9.

(b)That there be a separate trial in respect of Count 1.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 7 February 2020