An accused child sex offender has had criminal charges against him permanently stayed after a judge ruled that to allow the cases to proceed would “constitute an abuse of the processes of the court”.
Southport District Court judge Geraldine Dann, in a decision published on Monday, permanently stayed criminal proceedings against the man – identified only as HJR – on two counts of indecent treatment of his grandson.
The court was told HJR was charged with similar offences against another grandson and on 18 February 2015 was sentenced to two years’ jail partially sentenced after eight months, after pleading guilty to multiple counts of indecent treatment of a child.
HJR on 17 January 2022 applied to the District Court for a permanent stay of criminal proceedings on the grounds of abuse of process.
The court was told HJR had previously pleaded guilty to similar charges from a similar period of time – April 2009 – against one of his two grandchildren, and that Crown prosecutors were aware of the current allegations at the time of the original court proceedings and chose not prosecute JHR.
Judge Dann, in a 10-page written decision, said: “On 14 January 2014 ABC and his older brother (who I will call XYZ) gave statements to the police pursuant to s93A of the Evidence Act. At that time, ABC was 13 years old and XYZ was 15 years old.”
“The statements related, in substantial part, to alleged offending that occurred in 2009 whilst they were in the (HJR’s) care over a weekend.
“The (Office of the Director of Public Prosecutions) DPP had carriage of the prosecting both at committal and in the District Court.”
On 15 August 2014 an indictment was presented in the District Court charging HJR with six counts of indecent treatment of a child.
On 18 February 2015, HJR pleaded guilty to all charges, was sentenced to imprisonment and required to be a reportable sex offender upon his release for a period of five years.
However, the Crown at the time chose not to act on evidence of XYZ about what he witnessed occurring to his brother – ABC.
More than seven years later, XYZ made an additional further statement to police documenting a series of alleged incidents he had witnessed happening to ABC.
In granting HJR a permanent stay, Judge Dann said: “I have accepted that the prosecution case is weak by reason of the various inconsistencies in the accounts given by the complainant (ABC).”
“There are further discrepancies, now, too, in the account given by XYZ.
“In addition to that in my view … if the current prosecution proceeds there will be successive prosecutions separated by many years arising out of the same factual scenario.
“Relevant material concerning each of the charges in the form of evidence from a witness, was known to the police and the prosecuting authorities at the time of the original charges being laid and no steps were taken to attempt to obtain any addendum from (child) ABC.
“(HJR) pleaded guilty on the basis of the proffered charges. Those pleas will now be brought before the Court by the Crown on the subsequent prosecution and both parties accept it is necessary for this to occur to enable a proper cross examination of witnesses.
“This combination of circumstances is one where, to my mind, the process of prosecution is incapable of serving the purpose it is intended to serve. To allow it to continue would constitute an abuse of the processes of the court.
“I will order that the proceeding be permanently stayed.”
Judge Dann was appointed to the District Court bench in Southport in September 2020 and elevated to take on the additional role of Queensland Civil and Administrative Tribunal Deputy President in January 2022.
Read the decision.
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