R v Bui

Case [2011] ACTSC 102

R v TRONG RUYEN BUI
[2011] ACTSC 102 (17 June 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – miscellaneous powers of courts and judges – costs in criminal cases – whether payable – failure by prosecution to disclose material in a timely fashion – unfairness to accused.
CRIMINAL LAW – jurisdiction, practice and procedure – prosecution – duty of disclosure – principles applicable to disclosure by the prosecution.
CRIMINAL LAW – jurisdiction, practice and procedure – miscellaneous powers of courts and judges – stay of proceedings – conditional stay subject to payment of costs – whether stay beyond jurisdiction – exceptional circumstances warranting a stay – stay ordered conditionally.

Criminal Code 2002 (ACT), s 603
Court Procedures Rules 2006 (ACT), rr 4733, 4752, 6604, Pt 2.17
Magistrates Court Act 1930 (ACT), ss 90AB, 219F, 244, Div 3.5.2
Evidence Act 1995 (Cth), ss 97, 98
Seat of Government Supreme Court Act 1933 (Cth) ss 15
Court Procedures Act 2004 (ACT), ss 9, 134
Supreme Court Act 1933 (ACT), s 23
Human Rights Act 2004 (ACT), s 22

Blackstone, Commentaries on the Law of England, Clarendon Press, Oxford, 1768, Vol 3
Professor Dal Pont, Law of Costs, LexisNexis Butterworths, 2003

R v Basha (1989) 39 A Crim R 337
Galgey & Anor v Director of Public Prosecutions [2004] NSWSC 367
R v K (1991) 161 LSJS 135
R v Lewis-Hamilton [1998] 1 VR 630
R v Brown [1998] AC 367
R v Spiteri (2004) 61 NSWLR 369
Maddison v Goldrick [1976] 1 NSWLR 651
Barton v The Queen (1980) 147 CLR 75
Connelly v Director of Public Prosecutions (1964) AC 1254
Jago v District Court of NSW (1989) 168 CLR 23
R v Glennon (1992) 173 CLR 582
R v Compston (NSWCCA, 22 April 1993, unreported)
R v Charlton [1972] VR 758
R v Wesley [1990] Tas R 256 (NC) N7
R v Dainer;  Ex parte Pullen (1988) 89 FCR 208
Re Ratten [1974] VR 201
Grey v The Queen (2001) 75 ALJR 1708
Mallard v The Queen (2005) 224 CLR 125
AJ v The Queen [2010] VSCA 331
Wright, Danci & Currie [1992] 77 A Crim R 67
Attorney-General of Queensland v Holland (1912) 15 CLR 46
R v Scott (1993) 42 FCR 1
Byrnes v Barry (2004) 150 A Crim R 471
Carter v Managing Partner, Mallesons Stephen Jaques and Ors (1993) 11 WAR 159
The Queen v Martiniello [2005] ACTSC 9
R v Upton [2005] ACTSC 52
McGainey & Ors v Barac [2008] ACTSC 48 R v Seebag (NSWCCA, 16 February 1993, unreported)
R v Mosely (1992) 28 NSWLR 735
R v Fisher (2003) 56 NSWLR 625
R v Beeby (1999) 104 A Crim R 142
R v O’Connor [2000] NSWCCA 124
R v BK (2000) 110 A Crim R 298
R v Bucksath (2000) 114 A Crim R 1
Petroulias v The Queen (2007) 176 A Crim R 302
R v Selim [2007] NSWSC 154
R v Ulman-Naruniec (2003) 143 A Crim R 531

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AGLC
R v Bui [2011] ACTSC 102
Case
[2011] ACTSC 102
Decision Date

CaseChat Overview and Summary

The case of R v Bui involved a dispute concerning the failure of the prosecution to disclose material in a timely fashion, resulting in unfairness to the accused. The matter was before the court to decide on the appropriate remedy, including the imposition of costs and the potential stay of proceedings. The accused argued that the prosecution's failure to disclose evidence in a timely manner prejudiced his ability to prepare his defence, leading to an unfair trial. The legal issues before the court included whether costs were payable to the accused due to the prosecution's failure to disclose, the principles applicable to disclosure by the prosecution, and whether a stay of proceedings was warranted in the circumstances.

The court considered the principles governing the duty of disclosure by the prosecution, emphasising the importance of timely disclosure to ensure a fair trial. It was established that the prosecution has a duty to disclose material that is relevant to the accused's defence or that might affect the case. The court found that the prosecution had failed to meet this obligation, resulting in significant prejudice to the accused. In response to this breach, the court ordered that the proceedings be stayed until the Director of Public Prosecutions paid the accused's reasonable costs incurred due to the oral application and the adjournment of the trial. The court held that a conditional stay of proceedings was appropriate in these exceptional circumstances, as the prosecution's failure to disclose had caused substantial unfairness to the accused.

Upon the payment of the costs by the Director of Public Prosecutions, the matter was to be returned to the list for further pre-trial directions. The court set aside the orders made on 7 June 2011 and mandated that the costs be agreed upon or assessed by a judge if agreement could not be reached. This decision underscores the importance of adherence to disclosure obligations and the court's willingness to impose sanctions, including a stay of proceedings, when the prosecution's actions result in significant prejudice to the accused.

Orders

Orders of the court

1. The proceedings be stayed until the Director of Public Prosecutions pays to the accused the reasonable costs incurred by him in relation to the oral application of 2 June 2011 to vacate the hearing date and of the Application in Proceedings dated 6 June 2011 and the costs wasted as a result of the adjournment of the trial, such costs to be agreed or, failing agreement, to be assessed by a judge.

2. The orders made on 7 June 2011 be vacated and set aside.

3. Upon the Director of Public Prosecutions paying the costs referred to in order 1, the matter be returned to the list on the application of the Director for further pre-trial directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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