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R v Carrasco

R v Carrasco

Case [2022] ACTSC 44 15 March 2022

Jurisdiction

Abuse of Process

Limitation Periods

Admissibility of Evidence

Contempt of Court

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Carrasco
Citation:	[2022] ACTSC 44
Hearing Date(s):	28 January and 17 February 2022
DecisionDate:	15 March 2022
ReasonsDate:	15 March 2022
Before:	McWilliam AJ
Decision:	See [33]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for permanent stay of proceedings – applicant awaiting trial – kidnap – make demand with threat to endanger health – common assault – where police investigation was deficient – whether continuation of proceedings would involve unacceptable unfairness or injustice
Legislation Cited:	Crimes Act 1900 (ACT) ss 26, 32, 38 Criminal Code 2002 (ACT) s 342
Cases Cited:	Barton v The Queen (1980) 147 CLR 75 Dupas v The Queen [2010] HCA 20; 241 CLR 237 Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65 Gilham v The Queen [2007] NSWCCA 323; 73 NSWLR 308 Jago v District Court (NSW) (1989) 168 CLR 23 R v DU (No 2) [2019] ACTSC 241 R v Eastman [No 9] [2016] ACTSC 69 R v Glennon (1992) 173 CLR 592 at 605 R v Reeves (1994) 121 FLR 393 R v Smith (No 1) [2011] NSWSC 725; 218 A Crim R 52 Walton v Gardiner (1993) 177 CLR 378
Parties:	Samuel Carrasco (Applicant) The Queen (Respondent)
Representation:	Counsel E Chen (Applicant) S Saikal-Skea (Respondent)
Solicitors Legal Aid ACT (Applicant) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCC 223 of 2021 SCC 224 of 2021

McWilliam AJ

Before the Court is an application by the accused, Mr Samuel Carrasco, seeking a permanent stay of prosecution in relation to two charges committed for trial before this Court, and one transferred charge. The relevant charges are:

(a)One count of detaining a person for advantage (kidnapping), contrary to s 38(b) of the Crimes Act 1900 (ACT) (Crimes Act) (CC2021/5241); and in the alternative,
(b)One count of a demand accompanied by a threat, contrary to s 32(2) of the Crimes Act (SCCAN2021/148); and
(c)One transferred offence of common assault, contrary to s 26 of the Crimes Act (CC2021/5243)

In addition, the applicant has pleaded guilty to one count of blackmail with the intention of obtaining a gain, contrary to s 342(a) of the Criminal Code 2002 (ACT) (Criminal Code).

The application is founded upon on the ground that the accused has been deprived of the opportunity of a fair trial because of alleged inadequacies in the police investigation, including the failure:

(a)to obtain (or provide) relevant evidence, namely CCTV and police body worn camera footage of the complainant and applicant during the alleged offending and subsequent arrest (the footage); and
(b)to search the complainant’s vehicle for any physical evidence that could substantiate the alleged offending.

The accused contends that the loss of evidence and absence of due diligence in the police investigation in this matter has created such fundamental and irreparable unfairness as to make the continued prosecution of the matter unjustifiably oppressive to the applicant.

The…

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 Carrasco

Details

AGLC: R v Carrasco [2022] ACTSC 44
Case: [2022] ACTSC 44
Decision Date

CaseChat Overview and Summary

In the case of R v Carrasco, the applicant, Samuel Carrasco, sought a permanent stay of prosecution in relation to charges of kidnapping, making a demand with a threat, and common assault. The application was based on alleged deficiencies in the police investigation, including the loss of CCTV footage and the failure to search the complainant's vehicle. The applicant argued that these deficiencies would result in unacceptable unfairness or injustice, rendering the continuation of the proceedings an abuse of process. The Crown opposed the application, arguing that the investigation was not so deficient as to warrant a permanent stay of proceedings.

The court considered whether the deficiencies in the police investigation constituted a fundamental defect that went to the root of the trial. The court acknowledged that the investigation was, in significant respects, plainly deficient, but found that the quality of the investigation did not amount to a fundamental defect. The court also considered whether there was anything that a trial judge could do in the conduct of the trial to alleviate the unfairness caused by the lost evidence. The court found that the loss of evidence could be presented to the jury through cross-examination and jury directions, and that it was not necessary to determine the possible directions the trial judge could make at that stage. Finally, the court considered whether the unfairness was such that the administration of justice was best served by permanently staying the proceedings, rather than having the criminal offences brought to trial. The court found that there was a public interest in the case being brought to trial and that putting the case on the evidence marshalled to date would not involve unacceptable injustice or unfairness. Therefore, the application for a permanent stay of proceedings was dismissed.

The court's decision highlights the principles relevant to an application for a permanent stay, including the need to weigh the requirements of fairness to the accused against the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime. The court found that the deficiencies in the police investigation did not amount to a fundamental defect that went to the root of the trial, and that any unfairness could be alleviated through cross-examination and jury directions. The court also considered the public interest in the case being brought to trial and found that putting the case on the evidence marshalled to date would not involve unacceptable injustice or unfairness. Therefore, the application for a permanent stay of proceedings was dismissed.

Orders