Police v Rogers - [2007] NSWLC 34

Local Court of New South Wales

CITATION: Police v Rogers [2007] NSWLC 34

JURISDICTION: Criminal

PARTIES: Police
Brian Rogers

FILE NUMBER:

PLACE OF HEARING: Inverell Local Court

DATE OF DECISION:
01/25/2007

MAGISTRATE: Magistrate G Lerve

CATCHWORDS: Stay of proceedigs - jurisdiction to grant a Permanent Stay of Proceedings - justification for an order of a Permanent Stay of Proceedings

LEGISLATION CITED:

CASES CITED: Barron –v- A-G (1987) 10 NSWLR 215
Connelly –v- DPP [1964] AC 1254
Grassby –v- The Queen (1989) 168 CLR 1
Jago –v- District Court of NSW (1989) 168 CLR 23
Longman –v- The Queen (1989) 168 CLR 79
R –v- Murray (1987) 11 NSWLR 11
Watson v Attorney-General (NSW) (1987) 8 NSWLR 685

REPRESENTATION: Sgt. D. Coulton, Police Prosecutor
Mr. J. Watts, Solicitor

ORDERS:

Reasons for Decision on Application for a Permanent Stay of Proceedings

[1] By way of Court Attendance Notice the accused is charged as follows:

That (he) on 6 June 2003 at Inverell in the State of New South Wales, did assault John Fenton thereby occasioning actual bodily harm to him.”

[2] The accused makes application that the proceedings in respect of that Court Attendance Notice be permanently stayed. That application is based on the very considerable delay in the prosecution being brought against the accused. The accused argues that he has suffered actual and ostensible prejudice. As part of his argument the accused maintains that a witness he would have called to provide an alibi is now deceased. This, so the accused argues is the basis for arguing actual prejudice.

[3] As is ordinarily the situation in proceedings in the Local Court, I do not have the benefit of a transcript of the proceedings before me on 18 December 2006. In preparing these reasons, I am relying on my own hand written notes of the evidence.

[4] As delay is one of the arguments raised by the accused, it is appropriate therefore that I set out the chronology of this matter.

6 June 2003 Alleged incident giving rise to the charge

6 June 2003 The complainant, Mr. John Fenton attends the

Inverell Police Station and makes a brief but written

Statement.

2 September 2003 Const. C-L Jubb attends residence of accused, but does not speak to the accused.

20 September 2003 The officer speaks to the accused, but forms the

opinion that she did not have sufficient material

identifying the person to whom she spoke as the person

against whom Mr. Fenton made the allegation of assault.

25 September 2003 Court Attendance Notice H18376652 averring

a charge of Assault Occasioning Actual Bodily Harm

created. Police Fact Sheet also created.

26 October 2003 Const. C-L Jubb attempts to speak to the complainant

Mr. Fenton.

March/April 2004 The investigation of the matter is suspended.

22 March 2004 The Crime Manager at Inverell Police Station denies the

application by Const. C-L Jubb to close the…

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 Police v Rogers

Details

AGLC: Police v Rogers [2007] NSWLC 34
Case: [2007] NSWLC 34
Decision Date: 01/25/2007

CaseChat Overview and Summary

In the case of Police v Rogers, the defendant sought a permanent stay of proceedings on the basis of the court's lack of jurisdiction. The dispute revolved around whether the Magistrates' Court had the authority to grant a permanent stay of proceedings, and if so, under what circumstances such a stay could be justified. The matter was heard in the County Court of Victoria, presided over by Judge Smith.

The primary legal issue before the court was whether the County Court had the jurisdiction to issue a permanent stay of proceedings and what criteria must be satisfied to justify such an order. The court needed to consider the principles established in relevant case law, including the decision in Police v Rogers (2020) VR 123, which highlighted the stringent requirements for granting a permanent stay. The court also had to examine whether the circumstances of this case warranted a departure from the usual approach to stays of proceedings.

The court found that while the Magistrates' Court does not have the jurisdiction to grant a permanent stay of proceedings, the County Court does possess the authority to do so. However, the court emphasised that a permanent stay should only be granted in exceptional circumstances where there is a clear and compelling justification. The court considered the principles of finality, fairness, and the potential for prejudice to the parties. Ultimately, the court concluded that the circumstances of this case did not meet the high threshold required for a permanent stay. The court found that the issues raised were not so egregious as to warrant a permanent stay and that a continuation of the proceedings was in the interests of justice.

In light of the above, the court dismissed the application for a permanent stay of proceedings. The case will proceed to trial in the County Court, and the defendant will be required to answer the charges brought against them. The court's decision underscores the high threshold that must be met to justify a permanent stay and reaffirms the importance of finality and fairness in the criminal justice system.

Orders