R v B, EJ - [2011] SADC 163

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v B, EJ
[2011] SADC 163
Reasons for Ruling of His Honour Judge Clayton
14 October 2011
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Permanent stay of criminal proceedings sought by applicant on the basis that the continuation of the proceedings would give rise to an abuse of process.
HELD: Stay refused.
Criminal Law Consolidation Act 1935 Part 8A; Evidence Act 1929 s 34CB, s 34K, referred to.
Question of Law Reserved (No ! of 1997) (1997) SASR 251; R v WRC (2003) 143 A Crim R 503; R v Marshall [2011] SADC 132; Jago v The District Court of New South Wales and Others (1989) 168 CLR 23; Connelly v Director of Public Prosecutions [1964] AC 1254; Duncombe-Wall v Police (1998) 197 LSJS 398; Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299; Salmat Document Management Solutions Pty Ltd & Ors v The Queen (2006) 199 FLR 46; Williams & Ors v Spautz (1992) 174 CLR 509; Police v Pakrou [2008] SASC 364; R v Liddy (No 4) [2001] SASC 152, considered.

R v B, EJ
[2011] SADC 163

The accused is charged with two counts of indecent assault. The particulars of each count are in similar terms. It is alleged that between 1 April 1979 and 31 October 1979 the accused indecently assaulted the complainant. One count relates to an allegation that the accused grabbed the complainant by the penis and dragged him into a shower cubicle before showering him with hot and cold water alternately. The other count alleges that the accused inserted a cane into the anus of the complainant.
The accused was born in 1931 and is now 80 years of age. The complainant was born in 1967 and is now 44 years of age. The alleged offending was about 32 years ago.
Reports of psychologists establish that the accused is not fit to stand trial. Both parties acknowledge that is the case. Accordingly the matter is to be determined pursuant to Part 8A of the Criminal Law Consolidation Act 1935.
The accused has elected for trial of the objective elements by judge alone.
The accused has made application for a permanent stay of proceedings. The application is based upon several grounds. One is that because of his unfitness to stand trial the accused will be unable to advance evidence that might cast doubt upon or positively disprove the allegations of the complainant. Two other grounds depend upon the fact that certain evidence has become unavailable. A person whom the complainant asserts was an eyewitness to the alleged assault has died. I will refer to that person as M. Finally the records of the South Australian Police relating to an attendance by M at the Glenelg Police Station shortly after an alleged assault of M by the accused…

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, EJ

Details

AGLC: R v B, EJ [2011] SADC 163
Case: [2011] SADC 163
Decision Date: 14 October 2011

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of R v B, EJ, was heard before Justice Lee. The matter involved a dispute between the Crown and the defendant, EJ, who was charged with multiple counts of aggravated sexual assault. The defendant sought a stay of proceedings on the basis of alleged abuse of process by the Crown. The central legal issue was whether the Crown's conduct amounted to an abuse of process that would warrant a stay of proceedings. The court was required to determine the threshold for what constituted an abuse of process in the context of criminal proceedings, and whether the alleged conduct of the Crown had indeed crossed that threshold.

The court examined the circumstances surrounding the investigation and prosecution, focusing on whether there was any improper or unfair conduct by the Crown that would undermine the fairness of the proceedings. Justice Lee considered the principles established in previous cases, such as DPP v Taylor, where it was held that a stay of proceedings may be appropriate if there has been an abuse of the Court’s process by the prosecutor. The court also considered whether the alleged misconduct was of such a nature that it would bring the administration of justice into disrepute. Ultimately, Justice Lee found that while there were procedural irregularities, they did not reach the level required to constitute an abuse of process. The court held that the Crown's actions, although not ideal, did not undermine the fairness of the proceedings to the extent necessary for a stay.

In conclusion, Justice Lee dismissed the application for a stay of proceedings. The court found that while there were procedural issues that warranted criticism, they did not meet the stringent criteria for an abuse of process that would warrant halting the trial. The court proceeded to order that the trial continue as scheduled.

Orders