R v BK

Case [2000] NSWCCA 4 8 February 2000

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Reported Decision: 110 A Crim R 298

New South Wales

Court of Criminal Appeal

CITATION: Regina v B.K [2000] NSWCCA 4

FILE NUMBER(S): CCA 60182/99

HEARING DATE(S): 3/2/2000

JUDGMENT DATE:
8 February 2000

PARTIES :

Regina
B.K

JUDGMENT OF: Sully J at 1; Carruthers AJ at 26; Smart AJ at 38

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/11/0493

LOWER COURT JUDICIAL
OFFICER : Christie DCJ

COUNSEL : D. C. Frearson - Crown
A. J. Bellanto QC - Appellant

SOLICITORS: S. E. O'Connor - Crown
Patricia White & Associates - Appellant

LEGISLATION CITED: Criminal Appeal Act 1912

CASES CITED:
House v The King (1936) 55 CLR 499 at 504, 505
Dietrich v The Queen (1992) 177 CLR 292
Craig v The State of South Australia (1995) 184 CLR 163
Reg v Small (1994) 72 A Crim R 462 at 473
Moss v Brown [1979] 1 NSWLR 114 at 125
Reg v Greer (1992) 62 A Crim R 442
Reg v Frawley (1993) 69 A Crim R 208
DPP v Allan, CCA unreported, 1/11/95
Reg v Roula Kay, CCA unreported, 27/4/98

DECISION: Appeal dismissed; Interlocutory order of Christie DCJ affirmed

38
IN THE COURT OF
CRIMINAL APPEAL
60182/99
SULLY J
CARRUTHERS AJ
SMART AJ
8 February 2000

REGINA v BK
JUDGMENT

1 SULLY J: This is an appeal brought pursuant to section 5F of the Criminal Appeal Act 1912 by ‘BK’ (“the appellant”). The appeal is brought against an interlocutory judgment of Christie DCJ, being a judgment delivered on 19 April 1999, refusing an application by the appellant for a stay of proceedings pending against the appellant in the District Court, “……… until the matter of legal representation is resolved”. 2 The Notice of Appeal represents that Christie DCJ did not give a certificate that his Honour’s interlocutory judgment was a judgment proper for consideration by this Court on appeal pursuant to section 5F. It is, however, clear from the transcript of proceedings before Christie DCJ on 22 April 1999 that his Honour did certify the matter as one proper for the consideration of this Court. That being so, it is not necessary that the applicant obtain leave of this Court to appeal against the interlocutory judgment in question: see section 5F(3)(b). It is to be noted that an appeal of the present kind is to be determined “………on the evidence (if any) given in the proceedings to which the appeal relates” unless this Court “…… gives leave to adduce fresh, additional or substituted evidence,………..”: see section 5F(4). The particular powers of this Court in connection with an appeal of the present kind are limited to the affirming or the vacating of the judgment against which the appeal has been brought; or to the giving or making of an interlocutory judgment or order in place of the judgment or order against which the appeal has been brought: see section 5F(5). 3 The judgment or order sought in the Notice of Appeal is described simply as…

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 BK

Details

AGLC: R v BK [2000] NSWCCA 4
Case: [2000] NSWCCA 4
Decision Date: 8 February 2000

CaseChat Overview and Summary

In Regina v BK, the appellant sought an interlocutory stay of his trial in the District Court on charges of serious sexual offences. The appeal to the Court of Criminal Appeal was dismissed, and the interlocutory order of Christie DCJ was affirmed. The appellant argued that Christie DCJ erred in refusing to grant a stay based on the Dietrich principle and in not sufficiently considering the public interest in expediting the trial. The court held that the appellant had not discharged the onus of proof required to justify a stay, and the trial should proceed. The court emphasized the importance of balancing the rights of the accused with the public interest in the prompt administration of justice. The evidence showed that the appellant had been granted and then lost legal aid, and despite significant delays, he had not taken sufficient steps to secure legal representation. The court concluded that the appellant's financial situation did not justify further delay, and the trial should proceed without a stay.

Orders