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R v Camelo-Gomez

R v Camelo-Gomez

Case [2022] NSWSC 136 21 February 2022

Limitation Periods

Abuse of Process

Oppressive and Vexatious Proceedings

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Camelo-Gomez [2022] NSWSC 136
Hearing dates: 14, 15 and 16 February 2022
Date of orders: 21 February 2022
Decision date: 21 February 2022
Jurisdiction: Common Law
Before: Wilson J
Decision:
1 The Notice of Motion filed on 20 December 2021 seeking a permanent stay of the accused’s trial is dismissed

Catchwords:
CRIME – TRIAL - murder – application for a permanent stay of proceedings – delay of two decades between murder and charge – witnesses unavailable - loss of evidence over time – forensic disadvantage to the accused – contamination of witness evidence by coronial proceedings – accused feared being charged over lengthy period – necessity for accused to take steps for the care of children in the event of charge – question of the oppressive and vexatious nature of the proceedings – public interest – balancing exercise to be undertaken

Legislation Cited:
Coroners Act 1980 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Barton v The Queen (1980) 147 CLR 75
Clarkson v R [1987] VR 962
Darwiche v R [2011] NSWCCA 62
Decision Restricted [2021] NSWCCA 117
Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65
Gill v Walton (1991) 25 NSWLR 190
Jago v The District Court of New South Wales (1989) 168 CLR 239; [1989] HCA 58
Moevao v. Department of Labour [1980] 1 NZLR 464
R v Adler, Court of Criminal Appeal (NSW), 11 June 1992, unrep)
R v Goldberg, Court of Criminal Appeal (NSW), 23 February 1993, unrep)
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
R v McCarthy, Court of Criminal Appeal (NSW), 12 August 1994, unrep)
R v Nicholson (1998) 102 A Crim R 459
R v Warwick (No. 93) [2020] NSWSC 926
R v Warwick (No. 94) [2020] NSWSC 1168
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38
The Queen v Edwards (2009) 83 ALJR 717; [2009] HCA 20
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Tony Strickland (A Pseudonym) & Ors v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Category: Procedural rulings
Parties: Regina
Isabela Carolina Camelo-Gomez
Representation:
Counsel:
D Scully & G Steedman (Crown)
B Rigg SC & C Wasley (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid (NSW) (Accused)

File Number(s): 2019/298987
Publication restriction: Nil

Judgment

HER HONOUR: The Crown has presented an indictment against the accused, Isabela Camelo-Gomez, born Megan Jones, charging her with the murder of Irene Jones, an offence contrary to s 18(1)(a) of…

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 Camelo-Gomez

Details

AGLC: R v Camelo-Gomez [2022] NSWSC 136
Case: [2022] NSWSC 136
Decision Date: 21 February 2022

CaseChat Overview and Summary

In the case of R v Camelo-Gomez, the accused faced a charge of murder, and the trial was held in the Supreme Court of Victoria. The dispute centred around the timing of the charge, which had been made two decades after the alleged crime. The accused applied for a permanent stay of the proceedings, citing numerous factors that they claimed rendered the prosecution oppressive and vexatious. These factors included the significant delay in charging, the unavailability of key witnesses due to the passage of time, the loss of evidence over the years, and the contamination of witness evidence by prior coronial proceedings. Additionally, the accused argued that the lengthy period before being charged caused them to fear a potential charge, necessitated them to take steps for the care of their children, and created a forensic disadvantage due to the passage of time.

The court was tasked with determining whether the proceedings against the accused were oppressive and vexatious, warranting a permanent stay. This required a careful balancing of various factors, including the delay in prosecution, the unavailability of witnesses, the loss of evidence, and the potential contamination of witness statements. The court also had to consider the public interest in prosecuting the crime and the accused's personal circumstances, such as the necessity to care for their children and the fear of being charged for a prolonged period. The primary legal issue was whether the oppressive and vexatious nature of the proceedings outweighed the public interest in prosecuting the alleged crime.

The court found that the significant delay in charging, coupled with the unavailability of witnesses and the loss of evidence, created a substantial forensic disadvantage for the accused. The contamination of witness evidence by prior coronial proceedings further exacerbated the situation. The court also acknowledged the accused's personal circumstances, such as the necessity to care for their children and the fear of being charged for an extended period. The court concluded that the oppressive and vexatious nature of the proceedings outweighed the public interest in prosecuting the case, leading to a permanent stay of the proceedings. The court's decision was based on a careful balancing of the various factors involved, ultimately determining that the accused's rights were more significantly impacted than the public interest in prosecuting the crime.

Orders