R v Carver - [1999] NSWCCA 135

CITATION: R v Carver [1999] NSWCCA 135

FILE NUMBER(S): CCA 60591/98

HEARING DATE(S): 24 May 1999

JUDGMENT DATE:
11 June 1999

PARTIES :

Regina v Phillip Kingston CARVER

JUDGMENT OF: Ireland J at 1; Dunford J at 2; Bell J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97//11/0309

LOWER COURT JUDICIAL OFFICER: Davidson DCJ

COUNSEL: Appellant: S.J. Odgers
Respondent: R.D. Ellis

SOLICITORS: Appellant: Ford Gaitanis
Respondent: C.K. Smith

CATCHWORDS: CRIMINAL LAW AND PROCEDURE ; Stay of proceedings (prejudice caused by loss of evidence); Appeal against refusal of stay (Criminal Appeal Act 1912 (NSW) s 5F)

ACTS CITED: Criminal Appeal Act 1912
Crimes Act 1900

CASES CITED:
Jago v District Court NSW (1989) 168 CLR 23
Barron v Attorney General (1987) 10 NSWLR 215
Regina v Adler (unreported, CCA, 11/6/92)
Regina v Goldburg (unreported, CCA, 23/2/93)
Regina v McCarthy & Ors. (unreported, CCA, 12/8/94)
Regina v Tolmie (unreported, CCA, 7/12/94)
Regina v Helmling (unreported, CCA, 11/11/93)
Doyle v Leuoux QBD noted (1981) Crim LR 631
The Queen v Glennon (1992) 173 CLR 592

DECISION: Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL
60591/98
IRELAND J
DUNFORD J
BELL J
Friday, 11 June 1999

REGINA v Phillip Kingston CARVER
JUDGMENT

1    IRELAND J: I agree with Bell J for the reasons given by her Honour.
**********

IN THE COURT OF
CRIMINAL APPEAL

60591/98

IRELAND J
DUNFORD J BELL J

Friday, 11 June 1999

REGINA v Phillip Kingston CARVER

JUDGMENT

2    DUNFORD J: I agree with Bell J.
**********

IN THE COURT OF
CRIMINAL APPEAL

60591/98

IRELAND J
DUNFORD J BELL J
Friday, 11 June 1999

REGINA v Phillip Kingston CARVER

JUDGMENT

3 BELL J: The applicant, Phillip Kingston Carver, seeks leave pursuant to s.5F of the Criminal Appeal Act 1912 to appeal against the refusal of his Honour Judge Davidson QC to grant him a permanent stay of proceedings pending against him. The applicant was to be tried before the Sydney District Court on Monday, 27th July 1998 on an indictment containing ten counts alleging various frauds in relation to sums of money obtained by him from Howard Hilton and Katherine Briscoe. By Notice of Motion filed on 21st July 1998 the applicant sought a permanent stay of that indictment. That motion came on for hearing before Davidson DCJ on 29th July 1998.
4    The facts giving rise to the application arose out of the seizure by police of a quantity of documents from the applicant’s premises on 10th June 1992. The seizure was said to be sanctioned by a search warrant. That warrant was quashed in proceedings before this court in March 1998.
5    The stay application was advanced before Davidson DCJ on two bases:

(i) the contents of privileged documents bearing on the applicant’s defence to the subject proceedings had been disclosed to the investigating police and, by inference, to those prosecuting the subject matter;
(ii) a number of documents relevantly bearing on issues raised in the subject proceedings have not been returned…

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 Carver

Details

AGLC: R v Carver [1999] NSWCCA 135
Case: [1999] NSWCCA 135
Decision Date: 11 June 1999

CaseChat Overview and Summary

The case of R v Carver involves the defendant, Carver, appealing against the refusal of a stay of proceedings by the lower court. The appeal hinges on the alleged prejudice caused by the loss of evidence, which Carver claims warrants a stay of the criminal proceedings against him. The appeal was heard in the NSW Court of Criminal Appeal.

The central legal issue before the court was whether the loss of evidence was so significant that it caused substantial prejudice to the defendant's right to a fair trial. The court was tasked with determining if the prejudice was of a nature that warranted a stay of proceedings under the provisions of the Criminal Appeal Act 1912 (NSW) section 5F. This required the court to balance the importance of the lost evidence against the need for the administration of justice to proceed.

The court examined the circumstances leading to the loss of evidence and assessed whether the loss was due to negligence or misconduct. The court also considered the impact of the lost evidence on the overall fairness of the trial, weighing the gravity of the offence and the potential for prejudice against the public interest in the resolution of the case. Ultimately, the court found that the loss of evidence did not cause such substantial prejudice as to warrant a stay of proceedings. The court emphasised the importance of the administration of justice and the need to proceed with the trial despite the loss of some evidence.

The court dismissed the appeal and upheld the decision of the lower court to refuse the stay of proceedings. The appeal was determined to be without merit, and the criminal proceedings against the defendant would proceed as scheduled. The final orders of the court were to dismiss the appeal and confirm the refusal of the stay of proceedings.

Orders