R v BARRIE - [2012] SADC 112

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BARRIE
Criminal Trial by Judge Alone
[2012] SADC 112
Reasons for Ruling of His Honour Judge Soulio
7 September 2012
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Applicant sought stay of criminal proceedings on the basis that ex officio Information disclosed no offence - or was an abuse of process.
Held: Application dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 62, 63B; Acts Interpretation Act 1915 (SA) s 22; Criminal Law Consolidation (Child Pornography) Amendment Act 2005; Director of Public Prosecutions Act 1991 s 7; District Court Criminal Rules r 8, referred to.
R v Mai (1992) 26 NSWLR 371; R v Gedling (2007) 252 LSJS 8; K-Generation P/L & Anor v Liquor Licensing Court & Anor (2009) 236 CLR 501; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Re Bolton; ex parte Beane (1987) 162 CLR 514; R v Ratcliff, Stanfield and Utting (2007) 250 LSJS 226; Barton v The Queen (1980) 147 CLR 75, considered.

R v BARRIE
[2012] SADC 112
Introduction

The applicant seeks an order quashing, or alternatively, permanently staying criminal proceedings on the basis that charges involving communicating with a child cannot be made out where the communication was in fact with an undercover police officer posing as a child.
The Charges
The applicant is charged on an ex officio Information with the offences of making a communication for a prurient purpose on 13 May 2009, contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 SA, (‘CLCA’) and making a communication intending to procure a child for sexual activity, between 4 and 18 September 2009, contrary to s 63B(3)(a) CLCA.
In relation to Count 1, it is common ground that a member of the South Australian Police (SAPOL) assumed the fictitious identity of a female child, Annabel Ambramowitz, aged 13 years. On 13 March 2009 the police officer, posing as Annabel Ambramowitz, engaged in a conversation with a person using the pseudonyms blonde gym bod 09 and Jim Bob, who is said to be the applicant. In the course of that conversation the applicant is said to have sent a photograph of an erect penis to Annabel, and discussed matters of a general sexual nature with her, including inquiring as to whether she was a virgin.
In relation to Count 2, a member of SAPOL assumed the fictitious identity of a 14 year old girl, Felicity Groves, and between 4 September 2009 and 18 September 2009 the police officer, using that identity, engaged in several internet conversations and exchanged messages with the person using the pseudonyms blonde gym bod 09 and/or Jim Bob. The police officer, posing as Felicity, provided a mobile telephone number to the applicant, and during the course of the internet communications the two discussed matters of a sexual nature. It is alleged that the applicant made…

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 BARRIE

Details

AGLC: R v Barrie [2012] SADC 112
Case: [2012] SADC 112
Decision Date: 7 September 2012

CaseChat Overview and Summary

In the matter of R v Barrie, the respondent was charged with an offence under the Crimes Act 1900. The nature of the dispute involved the respondent seeking a stay of proceedings on the grounds of an alleged abuse of process. The case was heard in the Supreme Court of New South Wales. The respondent contended that the Crown's actions in pursuing the charges amounted to an abuse of the court's process. The legal issues that the court was required to determine included whether the Crown's conduct in pursuing the charges was oppressive, vexatious or an abuse of the court's process, and whether a stay of proceedings should be granted.

The court considered the relevant principles and authorities concerning the power to stay proceedings on the grounds of an abuse of process. It noted that such a power should be exercised sparingly and only in cases where the conduct of the proceedings has been seriously prejudicial to the respondent's right to a fair trial. The court found that the respondent's application for a stay of proceedings was premature, as there was no evidence before it to support a finding of abuse of process. The court also held that the respondent's allegations were speculative and did not establish a sufficient basis for the court to conclude that the proceedings were oppressive or vexatious. The court rejected the respondent's application for a stay of proceedings, finding that it would not be in the interests of justice to do so.

The court further held that the respondent's allegations were better addressed through the normal processes of the court, such as the filing of interlocutory applications or motions. The court noted that the respondent had not availed itself of these processes, and that it would be inappropriate for the court to grant a stay of proceedings on the basis of speculative allegations. The court emphasised the importance of the proper conduct of criminal proceedings and the need to ensure that the rights of both the accused and the Crown are protected. The court held that the respondent's application for a stay of proceedings was an abuse of the court's process, and that it should be dismissed with costs.

Orders