R v Bucksath - [2000] NSWCCA 135

Reported Decision: [2000] 114 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: Regina v Bucksath [2000] NSWCCA 135

FILE NUMBER(S): CCA 60622/99

HEARING DATE(S): 17 April 2000

JUDGMENT DATE:
17 April 2000

PARTIES :

Regina v Glenn Paul Bucksath

JUDGMENT OF: Stein JA at 1; Dunford J at 31; Simpson J at 34

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 99/11/1021

LOWER COURT JUDICIAL
OFFICER : Moore DCJ

COUNSEL : L M B Lamprati (Crown)
M J King (Respondent)

SOLICITORS: S E O'Connor (Crown)
Koffels (Respondent)

CATCHWORDS: CRIMINAL LAW - Adjournment - Undertaking as to costs - abuse of process of court - unfairness to accused in costs - stay until payment of costs of adjournment - Crown appeal

LEGISLATION CITED: Crimes Act 1900, s 178BA, s 178BB
Criminal Appeal Act 1912, s 5F

CASES CITED:
Jago v District Court of NSW (1989) 168 CLR 23
R v Beeby (1999) 104 A Crim R 142
R v Mosely (1992) 28 NSWLR 735
R v Seebag (Court of Criminal Appeal, 16 February 1993, unreported)
Walter v Gardiner (1992 - 1993) 177 CLR 378

DECISION: Appeal upheld in part and the order made by Moore DCJ on 21 July 1999 be varied to provide that the stay of proceedings on the indictment be until the costs of 19 and 21 July 1999 be paid to the respondent by the Crown; such costs to be agreed, or failing agreement, to be in such amount as is assessed by a judge of the District Court.

IN THE COURT OF
CRIMINAL APPEAL
60622/99

STEIN JA

DUNFORD J
SIMPSON J

Monday, 17 April 2000

Regina v Glenn Paul BUCKSATH

JUDGMENT

1 STEIN JA: This is an appeal by the Director of Public Prosecutions under s 5F of the Criminal Appeal Act 1912. It seeks to challenge orders made by Moore DCJ on 21 July 1999 staying proceedings on an indictment against Glenn Paul Bucksath (the respondent). The stay was granted on the basis of an abuse of process by the Crown and was expressed to be conditional upon the payment by the Crown of the costs of the accused thrown away on an indemnity basis. 2 On 19 February 1999 the respondent was committed for trial on three charges alleging that he had obtained by deception cheques for one, Darren Foster, contrary to s 178BA of the Crimes Act 1900. There were three alternative charges under s 178BB. The trial was fixed for Monday 19 July 1999, the date having been confirmed at a mention on 9 July 1999. 3 On the morning of the trial the Crown Prosecutor, who had been briefed only a few days previously, indicated that he sought an adjournment. The application was made on a number of grounds. These included:

(a) It was necessary to issue a subpoena to the Australian Taxation Office and there had not been time to do this.

(b) Darren Foster had been recently charged with the same offences…

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 Bucksath

Details

AGLC: R v Bucksath [2000] NSWCCA 135
Case: [2000] NSWCCA 135
Decision Date: 17 April 2000

CaseChat Overview and Summary

The matter before the court involved the defendant, Bucksath, who was prosecuted for an offence under the criminal code. The dispute centred on the adjournment of the trial, which was sought by the Crown. The case was heard in the Supreme Court of Victoria. The defendant argued that the adjournment was an abuse of process and that the requirement to pay the costs of the adjournment before proceeding with the trial would result in unfairness to him.

The central legal issue was whether the Crown's request for an adjournment was justified and whether the imposition of costs as a condition precedent to proceeding with the trial was appropriate. The court had to determine whether such a condition was an abuse of the court's process, potentially causing unfairness to the accused.

The court found that the Crown's request for an adjournment was justified on the facts presented. However, it held that the imposition of the condition that the defendant pay the costs of the adjournment before proceeding with the trial was an abuse of the court's process and constituted unfairness to the accused. The court ruled that the stay of the trial proceedings should continue until such time as the defendant had paid the costs of the adjournment. The Crown appealed the decision, and the case was ultimately determined in their favour.

The final orders of the court were that the stay of the trial proceedings should be lifted, and the trial should proceed. The court held that while the imposition of costs as a condition precedent to proceeding with the trial was inappropriate, it did not amount to an abuse of the court's process. The defendant was required to pay the costs of the adjournment, but the trial could proceed without further delay.

Orders