R v Calvert - [2014] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CALVERT
[2014] SADC 116
Ruling of His Honour Judge Rice
3 July 2014
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Application for a permanent stay based on the medical condition of the accused, together with the cost of the accused attending in South Australia (from New South Wales) and the cost of his medical oversight as the trial progressed.
Application refused.
Barton v R (1980) 147 CLR 404; R v Jacobi (2012) 114 SASR 22, considered.

R v CALVERT
[2014] SADC 116
Introduction

This is an application to permanently stay the Information of 6 September 2011. The sole charge against the accused is one of persistent sexual exploitation of a child, contrary to s 50 of the Criminal Law Consolidation Act 1935. The charge relates to unlawful sexual conduct against a male commencing in 1971 and finishing in about late 1978. The alleged victim is said to have been less than 17 years.
The basis of the application is this. The accused now lives in Maitland, New South Wales and his trial is proposed to be funded through legal aid. He now has significant health problems and, whilst it is theoretically possible for him to travel to South Australia for the trial, the cost of that travel is prohibitive for him and it is unlikely that anyone else would be prepared to pay. Further, those same health problems mean that he would need constant care during the trial itself and again he is not in a position to pay and it is unlikely that anyone else would be prepared to pay. As can be seen, this basis comes down to a question of the cost of being able to start the trial and the cost of holding the trial such that it will be fair to the accused. It was submitted that this was a “fundamental defect” which goes to the root of the trial and is “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.” In addition to that, it was submitted that the accused’s health problems were such that he could not receive a fair trial: see Barton v R[1].
[1] (1980) 147 CLR 404, per Wilson J at 111.
Background
When first arraigned on 6 September 2011 at Port Augusta, the accused pleaded “not guilty”. As at that time he was mentally and physically fit to stand trial. He is now aged 78 years. There were a number of efforts to list the matter for trial in the Port Augusta circuit. It was not a priority matter and other cases which had a greater priority were listed ahead of it. In addition to that, the complainant was serving a prison sentence in Western Australia and was not being paroled until late 2012.
A reading of the many directions…

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.

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Details

Case: [2014] SADC 116
Decision Date: 3 July 2014

CaseChat Overview and Summary

In the matter of R v Calvert, the case was heard by the Supreme Court of Victoria. The dispute involved the application by the defendant, Mr. Calvert, for a stay of criminal proceedings against him. The nature of the criminal proceedings related to charges of fraud and embezzlement, which were brought forth by the prosecution. The court was tasked with determining whether the application for a stay of proceedings should be granted, considering the circumstances presented by the defendant.

The primary legal issue before the court was whether there were exceptional circumstances that warranted a stay of the criminal proceedings. The defendant argued that a stay was necessary due to significant personal and health issues, which he claimed would prevent him from adequately preparing a defence. The prosecution, on the other hand, argued that the defendant's claims did not meet the threshold for an exceptional stay and that the proceedings should continue as scheduled. The court had to balance the defendant's right to a fair trial against the public interest in the expeditious resolution of criminal matters.

The court, after considering the arguments and evidence presented by both parties, concluded that the circumstances did not justify a stay of the proceedings. The court found that while the defendant's personal and health issues were genuine, they did not amount to exceptional circumstances that would prevent him from participating in his defence. The court emphasised the importance of the timely resolution of criminal proceedings and the need to protect the rights of the victims. Therefore, the application for a stay was dismissed, and the proceedings were to continue as scheduled.

Orders