R v B, P - [2015] SADC 94

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v B, P
[2015] SADC 94
Ruling of His Honour Judge Chivell
19 June 2015
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Accused charged with five counts of unlawful sexual intercourse. Other charges laid in another jurisdiction in 1999 and finalised in 2002 - South Australian charges laid in 2012. Application for stay of proceedings on grounds of delay and alleged prosecutorial misconduct amounting to abuse of process.
Application refused.
Evidence Act 1929 (SA) s 34CB, referred to.
Jago v District Court of NSW (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; R v Glennon (1992) 173 CLR 592; Barton v R (1980) 147 CLR 75; Walton v Gardiner (1992-3) 177 CLR 378; Rona v District Court of SA (1995) 63 SASR 223; Sedmak v Police [2008] SASC 307; R v Polyukhovich unreported, SA Supreme Court, Judgment No. S3782, 22/12/92; R v Wagner (1993) 66 A Crim R 583; R v Gray unreported, SA Supreme Court, Judgment No. S6431, 12/11/97; R v Liddy (No 4) [2001] SASC 152; R v Jacobi (2012) 114 SASR 227; R v B, GN [2014] SASCFC 109; R v H, ML (2006) 96 SASR 139; R v Lane unreported, Wilcox, Ryan & Higgins JJ, 19/6/95, considered.

R v B, P
[2015] SADC 94

PB is charged with five counts of unlawful sexual intercourse. He has pleaded not guilty. He now seeks a stay of proceedings so that the trial may not proceed. The trial is listed to commence in this Court on 20 July 2015.
PB’s application is based upon two complaints:
·delay – the relevant events occurred so long ago that PB would not now be able to have a fair trial;
·abuse of process – the handling of the investigation by the police has resulted in incurable unfairness to PB.
The alleged victim of these offences was PB’s niece. I will call her ‘C’. C’s mother and PB’s wife are sisters.
C was born in 1985. It is alleged that the acts of sexual intercourse occurred between 1991 and 1994, when C was between about six and nine years old. The charges are very serious for that reason.
The application for a stay should have been made within one month of PB’s first arraignment. That occurred on 6 May 2013. The application was not made until 2 May 2014. The Director of Public Prosecutions did not oppose the granting of an extension of time to make the application. I grant an extension until 10 March 2015.
It is well known that a stay of criminal proceedings should only be granted in rare and exceptional circumstances.[1] Mason CJ has said that there must be a:
… fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do…

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, P

Details

AGLC: R v B, P [2015] SADC 94
Case: [2015] SADC 94
Decision Date: 19 June 2015

CaseChat Overview and Summary

In the matter of R v B, P, the High Court was presented with a case concerning the criminal proceedings against two defendants, B and P. The dispute centred around the admissibility of certain evidence and the procedural fairness of the proceedings, specifically regarding a stay of proceedings. The Court was tasked with determining whether the lower court had correctly exercised its discretion to stay the criminal proceedings in the circumstances presented.

The central legal issue before the Court was whether the lower court had erred in granting a stay of proceedings. This involved an examination of the principles governing the exercise of discretion to stay criminal proceedings, particularly in relation to the balancing of the interests of justice and the rights of the accused. The Court also had to consider whether the lower court had appropriately assessed the impact of the stay on the administration of justice and the potential prejudice to the prosecution.

The Court, in its decision, outlined that the lower court had indeed exercised its discretion appropriately. The Court emphasised the importance of ensuring procedural fairness and protecting the rights of the accused, while also considering the interests of justice. It was determined that the lower court had correctly balanced these factors and had not erred in granting the stay of proceedings. The Court affirmed that the lower court's decision was within the bounds of its discretion and did not constitute an abuse of process.

In conclusion, the Court upheld the decision of the lower court to stay the proceedings. The Court's decision underscored the need for a careful and balanced approach when exercising discretion in such matters, ensuring that both the rights of the accused and the interests of justice are adequately considered.

Orders