Bush, I.L. v The Queen - [1993] FCA 518

IAN LESLIE BUSH v. THE QUEEN
No. ACTG79 of 1992
FED No. 518
Number of pages - 16
Criminal Law - Legal Practitioners
(1993) 115 ALR 654
(1993) 43 FCR 549
(1993) 69 A Crim R 416

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Miles(2) and Drummond(3) JJ

CATCHWORDS

Criminal Law - offence committed in the ACT - application at trial for a temporary stay of proceedings to enable enactment of legislation which would empower the Court to transfer the venue of the trial outside the ACT - no evidence that such legislation likely to be enacted in the foreseeable future - no evidence that transfer would be necessary for a fair trial even if statutory power existed to do so - application refused by trial judge - no miscarriage of justice.

Criminal Law - convicted of an offence of similar character to that present - application to challenge each prospective juror for cause - onus on applicant to adduce evidence to show that there is a real risk that each individual juror is not impartial - adverse media publicity and survey evidence relied on to support a challenge for cause - no sufficient evidentiary foundation for challenge laid - adequate steps taken by trial judge to secure a fair trial - no miscarriage of justice.

Criminal Law - procedure - no indication prior to close of prosecution case that voluntariness of accused's conduct is in issue - defence adduced expert evidence of automatism - Crown not required to anticipate theoretical defences - Crown entitled to call rebuttal evidence.

Legal Practitioners - criminal proceedings - failure by legal representatives to draw to notice of expert witness facts of clear potential relevance to his opinion - opinion the sole evidentiary foundation for one ground of defence - such conduct not proper.

Crimes Act 1900 (NSW) as applied to the ACT - ss. 13 and 577

Supreme Court Act 1933 - s. 18(1)

Attorney-General v Australian Agricultural Company (1934) 34 SR (NSW) 571

Dietrich v R (1993) 67 ALJR. 1

Jago v District Court (NSW) (1989) 168 CLR 23

Murphy v R (1989) 167 CLR 94

R v Kray (1969) 53 Crim App R 412

R v Manson (1974) Qd R 191

R v Murdoch (1987) 37 A Crim R 118

R v Stuart and Finch (1974) Qd R 297

R v Toh Yu Teng (1987) 30 A Crim R 203

The Queen v Chin (1985) 157 CLR 671

The Queen v Falconer (1990) 171 CLR 30

The Queen v Glennon (1992) 173 CLR 592

HEARING

CANBERRA, 30 March 1993

#DATE 2:8:1993

Counsel for the appellant: Mr. T. O'Donnell

Solicitors for the appellant: ACT Legal Aid

Counsel for the respondent: Mr K. Crispin, QC with

Mr I.A. Doig

Solicitors for the respondent: ACT Director of Public

Prosecutions

ORDER

The Court orders that:

1. The appeal is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bush, I.L. v The Queen

Details

AGLC: Bush, I.L. v. The Queen [1993] FCA 518 ((1993) 115 ALR 654; (1993) 43 FCR 549; (1993) 69 A Crim R 416)
Case: [1993] FCA 518
Decision Date: 02 AUGUST 1993

CaseChat Overview and Summary

The respondent, in this case, sought a temporary stay of proceedings during their trial for an offence committed in the Australian Capital Territory. The application was made to allow time for the enactment of legislation that would enable the court to transfer the venue of the trial outside the ACT. The application was refused by the trial judge, and the respondent now appeals against that decision. The central issue before the court was whether the trial judge erred in refusing the application for a temporary stay of proceedings.

The court considered whether there was any evidence to suggest that the proposed legislation would be enacted in the foreseeable future. There was no such evidence before the court. Additionally, even if the statutory power to transfer the venue of the trial existed, there was no evidence that such a transfer would be necessary for a fair trial. The court found that the trial judge had not erred in refusing the application for a temporary stay of proceedings as there was no miscarriage of justice.

The court concluded that the appeal should be dismissed. The evidence did not support the respondent's claim that a temporary stay of proceedings was necessary, and the trial judge had not made any error in their decision. The court found that the respondent had not demonstrated any grounds for the appeal to succeed, and the trial judge's decision was upheld. The appeal was dismissed, and the court made an order to that effect.

Orders

Orders of the court

The Court orders that:

1. The appeal is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.