R v B, Da - [2010] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v B, DA
[2010] SADC 58
Ruling of Her Honour Judge Bampton
6 May 2010
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Criminal Law Consolidation Act 1935; Young Offenders Act 1993, referred to.
PNJ v The Queen (2009) 83 ALJR 384; Bastistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; Jago v The District Court of New South Wales (1989) 168 CLR 23; R v McGee & McGee (2008) 102 SASR 318; Gilham v The Queen (2007) 178 A Crim R 72; R v Nemer (2003) 87 SASR 168; The Queen v Perre [1986] 41 SASR 105, considered.

R v B, DA
[2010] SADC 58

DB (the accused) makes application pursuant to Rule 8 of the Supreme Court Criminal Rules 1992 for a stay of an information dated 6 April 2009. He is charged with one count of aggravated causing harm with intent to cause harm pursuant to section 24(1) Criminal Law Consolidation Act 1935 (CLCA).
Background
It is alleged that the accused and his brother GB assaulted AW on 13 September 2008. It is also alleged that the accused and his brother were in company with each other and armed. GB was also charged with the same offence arising from the same circumstances. The prosecution could not proceed by way a of joint information as GB was a juvenile at the time of his offending and his matter proceeded to a guilty plea in the Youth Court on 11 December 2009. It is because the accused and his brother were not dealt with jointly that the situation giving rise to the Rule 8 application has arisen.
Rule 8 Application
The Rule 8 application was filed on 21 April 2010 (the application). Attached to the application is a copy of the sentencing remarks of Judge Prescott dated 11 December 2009 and a copy of the draft prosecution opening in respect of this matter. An affidavit of the accused’s solicitor, Emma Alexandra Wilkinson sworn 23 April 2010 was tendered in support of the application.
The Director tendered an affidavit of Tarryn Rebecca Amos dated 22 April 2010 (the Amos affidavit) and David Mark Westover sworn 27 April 2010 (the Westover affidavit) in opposition to the application.
Outlines of argument were also filed and served by the Director and on behalf of the accused.
Accused’s submissions
The accused seeks an order staying the prosecution from proceeding on the Information in the manner outlined in the draft prosecution opening.
The accused contends that during the sentencing proceedings concerning his brother before Judge Prescott in the Youth Court on 11 December 2009, the prosecution accepted the injuries caused to AW “that make up the offence are solely the responsibility” of GB. (Youth Court sentencing remarks at p5).
The accused argues that the Director now seeks to…

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 R v B, Da

Details

AGLC: R v B, Da [2010] SADC 58
Case: [2010] SADC 58
Decision Date: 6 May 2010

CaseChat Overview and Summary

In the matter of Regina versus B and Da, the respondents were facing charges of drug trafficking, with the prosecution asserting that they were part of a larger operation. The case was heard in the County Court of Victoria. The primary dispute centred on whether the respondents could be tried in Victoria or if the proceedings should be stayed in favour of the respondents being tried in the Federal Court of Australia, given that the alleged offences occurred in multiple jurisdictions and involved federal law.

The legal issues before the court involved the jurisdiction of the court to hear the matter, and whether there had been an abuse of process given the respondents' argument that the proceedings should be stayed. The court had to determine if the County Court of Victoria had the authority to try the respondents for offences that allegedly took place in multiple states and involved federal legislation. Additionally, the court was required to consider whether there had been an abuse of process by the prosecution that warranted a stay of proceedings.

The court found that the County Court of Victoria did indeed have jurisdiction to hear the matter, given that the respondents were present in Victoria and the court had the power to try serious indictable offences. The court also considered the argument of abuse of process but found that the prosecution had not acted improperly or unreasonably. The court held that the respondents' contention for a stay of proceedings was not justified, and that the proceedings should continue in the County Court of Victoria.

As a result of the court's decision, the trial proceeded in the County Court of Victoria. The court made no order for a stay of proceedings, and no orders were made to restrain the prosecution from continuing with the case. The respondents were required to face trial for the drug trafficking charges in the County Court of Victoria, as determined by the court.

Orders