The Queen v BO

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 15 September 2014
• Date: 15 September 2014
• Court: Supreme Court of ACT
• Docket Number: File Number(s): SCC 215 of 2013

[2014] ACTSC 287

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number(s): SCC 215 of 2013

The Queen

(Crown)

and

BO

(Accused)

Representation:

Counsel

Ms M Moss (Crown)

Mr J Sabharwal (Accused)

Cases Cited:

Evans v The Queen (2007) 235 CLR 521

Gillard v The Queen (2013) 275 FLR 416

Gillard v The Queen (2014) 308 ALR 190

Go v The Queen (1990) 73 NTR 1

R v Alderidge (1993) 67 A Crim R 371

R v Bonner [1974] Crim LR 479

R v Westerman (1991) 5 A Crim R 353

Legislation Cited:

Crimes Act 1900 (ACT), s 264(1)

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Information, Indictment or Presentment — Application to amend indictment — Indictment can be amended at any time during trial — Dates not an essential particular to a count and can be amended where no other prejudice is identified — Amendment would not lead to miscarriage of justice — Application allowed

Decision:

See [17].

Refshauge J

1 BO has been charged with five counts of committing an act of indecency in the presence of or on the first complainant, one count of engaging in sexual intercourse with the first complainant and three counts of committing an act of indecency on or in the presence of the second complainant, both complainants being, at the time, under the age of ten years.

2 The indictment specifies that the dates between which the offences are said to have occurred in each case were between 1 March 2012 and 1 November 2012. The allegations of the Crown are that the offences all took place in BO's bedroom at the family home in Fisher, ACT.

3 BO is the uncle of the two complainants who attended at the family home under an arrangement for access and care by their father once a fortnight. The end date for the offences was clearly chosen because the complainants ceased to sleep in BO's bedroom after 30 October 2012, it appears from the evidence, because one of BO's sisters then moved out and the complainants' father then moved into her bedroom where both complainants could and did then sleep.

4 The first complainant said that no incidents occurred after that time. The second complainant said, however, that some acts occurred during the day, although without great specificity as to the dates, when BO invited him into his bedroom making the change of sleeping arrangements not determinative of when the incidents occurred.

5 I had no real sense from the evidence of why 1 March 2012 was chosen by the Crown as the start date for the period during which the acts constituting the counts on the indictment are said to have occurred. The children went to the home in Fisher from about 2008 from when arrangements had been made between the separated parents of them for the children to spend time with their father who also lived at the house.

6 It may be that the date was chosen because the siblings of the children's father were under the care at the time of one Michael Taylor who died on 5 March 2012. He, the evidence suggested, was able to stop BO from what was described as bullying behaviour by BO towards the complainants or at least one of them.

7 In any event, the Crown has now applied to amend the indictment to extend the dates. So far as the first complainant is concerned, the application is to substitute 1 January 2008 for 1 March 2012. Initially the application was to substitute 2 July 2014 for 1 November 2012 but the evidence of the first complainant was that no sexual activity with her and BO took place after the sleeping arrangements were changed, namely on or about 1 November 2012, and I refused that application.

8 The application so far as the second complainant was concerned was to make the same two substitutions. Since the second complainant did not give the same evidence as to when any relevant sexual activity ceased as did the first complainant and as some was said to have taken place in the afternoon and not all when he and BO were sleeping in the same room, I entertained the application in relation to...