Legal Research
Cases
FINNIGAN v R

FINNIGAN v R

Case [2014] SADC 34 5 March 2014

No judgment structure available for this case.

Type to search within this case.

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
FINNIGAN v R
[2014] SADC 34
Ruling of His Honour Judge Millsteed
5 March 2014
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Applicant charged on information with aggravated possessing child pornography (count 1) and taking a step to access child pornography (count 2) (s 63A(1)(b) of the Criminal Law Consolidation Act 1935 (SA)) - application pursuant to Rule 14 of the District Court Criminal Rules 2013 for an order permanently staying each count as an abuse of process of the Court upon the grounds that it is foredoomed to fail - (as to count 1) whether there is evidence to prove the aggravating element as prescribed by s 5AA(1)(i) namely that the victim of the offence was, at the time of the offence, under the age of 14 years - (as to count 2) whether there is evidence which would enable the prosecution to prove that the applicant took a step that would have led to child pornography - application for a stay of proceedings on count 1 dismissed - application for a stay of proceedings on count 2 granted.
Criminal Law Consolidation Act 1935 (SA) s 63A(1)(b), referred to.
F, BV v Magistrates Court of South Australia (2013) 115 SASR 232, discussed.
Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; DPP v Shirvanian (1988) 55 NSWLR 129; Williams v Spautz (1992) 174 CLR 509; Ridgeway v The Queen (1995) 184 CLR 19; McHenry v Lewis (1883) LR 22 CH D 397; Williams v Hunt [1905] 1 KB 512; R v Petroulias (No 1) (2006) 177 A Crim R 153; Police v Kennedy (1998) 71 SASR 175; R v Clarke (2008) 100 SASR 363; Shah v New Zealand Police [2006] NZLR 425 (HC); Wallworth v Balmer [1966] 1 WLR 16; Sweeney v Denness (1954) 56 WALR 52, considered.

FINNIGAN v R
[2014] SADC 34
Introduction

The applicant is charged on an information, filed ex officio by the Director of Public Prosecutions (DPP), with aggravated possessing child pornography (count 1) and taking a step to access child pornography (count 2) contrary to s63A(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The applicant has not been arraigned on the information and applies, pursuant to Rule 14 of the District Court Criminal Rules 2013, for an order permanently staying each count as an abuse of process of the Court upon the grounds that it is foredoomed to fail.
The particulars of the grounds in relation to count 1 are as follows:
· in order to make out an aggravated offence against s63A(1)(b) within the meaning of s5AA(1)(e) (i) of the CLCA, it is necessary for the prosecution to prove that the victim of the offence was, at the time of the offence, under the age of 14 years; and
·…

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 FINNIGAN v R

Details

AGLC: Finnigan v The Queen [2014] SADC 34
Case: [2014] SADC 34
Decision Date: 5 March 2014

CaseChat Overview and Summary

The applicant, Finnigan, was charged with two counts: aggravated possession of child pornography (count 1) and taking a step to access child pornography (count 2). These charges were brought under the Criminal Law Consolidation Act 1935 (SA). Finnigan applied for an order to permanently stay each count, arguing that the proceedings were an abuse of process because they were foredoomed to fail. The application was heard in the District Court of South Australia.

The court needed to determine if there was sufficient evidence to prove the aggravating element of count 1, namely that the victim of the offence was under 14 years old at the time of the offence, as required by section 5AA(1)(i). Additionally, for count 2, the court needed to decide if there was evidence that the applicant had taken a step that would have led to accessing child pornography. The court examined whether the prosecution had a case to answer on each count.

The court found that for count 1, there was sufficient evidence to proceed to trial, and therefore, the application for a stay was dismissed. However, regarding count 2, the court concluded that there was no evidence that the applicant had taken a step that would have led to accessing child pornography. Consequently, the application for a stay of proceedings on count 2 was granted.

The court's final orders were to dismiss the application for a stay of proceedings on count 1 and to grant the application for a stay of proceedings on count 2.

Orders