R v D, Ph - [2005] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v D, PH
Ruling of His Honour Judge Bright
18 April 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
Application to stay proceedings. Delay. Loss of opportunity to search for evidence. Loss of evidence.

R v D, PH
[2005] SADC 31

This is an application by the defence for an order permanently staying this case. The prosecution concerns allegations of unlawful sexual intercourse and other sexual impropriety between the accused, then a serving police officer, and the complainant, to whom I shall refer as DC, at a time when she was 14-15 years of age. The charged events are alleged to have occurred in 1983 and 1984.
DC complained of them in 1985. Police investigated. Police disciplinary charges were laid in 1985 against the accused. He resigned from the police. At that time, such charges could only be pursued against a serving police officer. The charges were, for that reason, dropped, or not pursued. The ambit of those charges was wider than that of the present prosecution. The disciplinary charges included such matters as the improper use of police motor vehicles in the course of the events giving rise to the present criminal charges.
No further action was taken by police at the time and it is not clear why this was so. Ms Ottens, the carer of DC claims she was told that the accused was suffering from a (by inference, terminal) brain tumour, for which reason nothing more could be done. If she was told that, it was not true. Mr Ralphs, then the police superintendent in charge of prosecutions, told me that, while he now has virtually no recall of the matter, the old police file indicates that he decided that the case in relation to the sexual allegations was not strong enough to lay criminal charges. The file was closed in 1985. DC, apparently believing that nothing more could be done, took no steps to urge police to take action until 2003, when, encouraged by reports of others raising claims of abuse many years ago, she approached police again. The matter was re-investigated and the present charges were laid.
Mr Hinton, for the Director of Public Prosecutions, has prepared a most helpful and detailed chronology. Mr McEwen, for the accused, referred to a few matters not covered in that chronology. For present purposes it is an excellent record of the history of the case. It would be otiose to repeat it all. Except where I may specifically indicate, I use it as the basis for this ruling.
Both Mr Hinton and Mr McEwen prepared detailed submissions in writing. Insofar as they relate to the law, there is not a great deal of difference between them.
It is common ground that:
(1) I have power to order a stay.
(2) That power is a power to be exercised very sparingly.
(3)It is only to be used…

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 D, Ph

Details

AGLC: R v D, Ph [2005] SADC 31
Case: [2005] SADC 31
Decision Date: 18 April 2005

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v D, Ph involved a dispute over the admissibility of evidence obtained through unlawful police conduct. The defendant, Ph, was charged with multiple offences, including drug possession and trafficking. The crux of the matter was whether evidence obtained during an unlawful search and seizure should be excluded from the trial under the exclusionary rule. The court had to determine whether the evidence obtained from the unlawful conduct should be suppressed, impacting the prosecution's case.

The central legal issue revolved around the application of the exclusionary rule to evidence obtained through unlawful police conduct. The court had to consider whether the police actions constituted a breach of the defendant's rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). Furthermore, the court needed to assess whether the evidence was obtained through a causal link to the unlawful conduct or if it would have been inevitably discovered through legitimate means. The court also examined the proportionality of excluding the evidence against the interests of justice.

In its decision, the Supreme Court found that the police had indeed breached the defendant's rights by conducting an unlawful search and seizure. The court held that the exclusionary rule applies to evidence obtained through such breaches, to deter police misconduct and uphold the integrity of the judicial process. The court determined that the evidence obtained through the unlawful conduct should be excluded, as it was directly linked to the breach and excluding it was necessary to uphold the defendant's rights. The court ruled that the interests of justice would be served by excluding the tainted evidence.

The final orders of the court were that the evidence obtained through the unlawful police conduct was to be excluded from the trial. The court directed the prosecution to proceed with the trial without the excluded evidence. This decision underscored the importance of respecting individual rights and the rule of law in criminal proceedings.

Orders