R v Fleming - [2007] NSWSC 337

CITATION: R v Fleming [2007] NSWSC 337

HEARING DATE(S): 11 April 2007

JUDGMENT DATE :
12 April 2007

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Studdert J

DECISION: The application for a permanent stay of proceedings is refused.

CASES CITED: Jago v District Court (New South Wales) (1989) 168 CLR 23
R v Adler (unreported, NSWCCA, 11 June 1992)
R v Birdsall (unreported, NSWCCA, 3 March 19972)
R v Gilham [2007] NSWSC 231
R v Goldburg (unreported, NSWCCA, 23 February 1993)
R v RWO [2002] NSWCCA 133
R v Tolmie (unreported, NSWCCA, 7 December 1994)

PARTIES: Regina v David Fleming

FILE NUMBER(S): SC 2005/2543

COUNSEL: T. Hoyle SC (Crown)
M. Austin (Accused)

SOLICITORS: S.C. Kavanagh (Crown)
Nyman Gibson Stewart (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT J

Thursday 12 April 2007

2005/2543 REGINA v DAVID FLEMING
JUDGMENT
(Re: application for stay of proceedings)

1 HIS HONOUR: The accused has made application for an order that presentation of an indictment in this matter be permanently stayed. The basis of the application is that there has been extreme delay and to continue with the prosecution would be an abuse of process.

2 The accused moves on the affidavit of Jasmina Ceic sworn 11 April 2007.

3 Mr Austin very properly conceded that the delay that has occurred was not caused by fault attributable to the prosecution. The murder is alleged to have been committed on 18 February 1984. Investigations conducted thereafter were unsuccessful, and it was not until October 2004 that a task force was formed to reinvestigate the death. In that period of time scientific advances have been made in DNA profiling and in associated analysis. Once a DNA profile had been obtained from the accused in December 2004 and, according to the prosecution, a match had been made, police acted swiftly in having the accused extradited from Victoria to New South Wales and in having him charged with the offence of murder on 19 January 2005.

4 It is unnecessary for present purposes to trace the history of the matter since then because Mr Austin again properly acknowledged that there was no blame attributable to the prosecution since January 2005 in bringing the accused to trial.

5 Whilst Mr Austin acknowledged that the delay is blameless, nevertheless he submitted that there is prejudice such as would render any trial of the accused an abuse of process.

6 This brings me to the affidavit of Jasmina Ceic, the solicitor acting for the accused. This affidavit deals with certain areas in relation to which the accused contends evidence has been lost by reason of the effluxion of time. The contention is advanced through the affidavit that the accused has an alibi but that evidence in relation to it is no longer available. Ms Ceic’s instructions are that on 15 February 1984 the accused received a telephone call from a person named Thelma Markovitch advising him that his son had been injured in…

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 Fleming

Details

AGLC: R v Fleming [2007] NSWSC 337
Case: [2007] NSWSC 337
Decision Date: 12 April 2007

CaseChat Overview and Summary

The case before the court involves a criminal matter against the accused, Fleming, who has applied for an order that the presentation of an indictment in this matter be permanently stayed. The application arises from an extreme delay in bringing the case to trial, which the accused contends is so significant that to continue with the prosecution would constitute an abuse of process. The court must determine whether the delay has indeed been so egregious that it would be unjust to proceed with the prosecution. The dispute centres on the extent to which the delay can be attributed to factors outside the control of the prosecution, and whether this justifies the accused's application for a permanent stay of the indictment.

The primary legal issue before the court was whether the delay in presenting the indictment against the accused was so substantial that it would be an abuse of process to proceed with the prosecution. The court was required to assess whether the delay was caused by factors attributable to the prosecution or whether it arose from circumstances beyond the prosecution's control. In making this determination, the court considered the principles of justice and fairness, and the extent to which the accused's right to a fair trial would be prejudiced by the delay. The court also had to evaluate the impact of the delay on the prosecution's case and the potential for prejudice to the accused if the trial were to proceed.

The court found that the delay in bringing the case to trial was not due to any fault on the part of the prosecution. The delay was caused by a combination of factors, including administrative issues and the accused's own actions in seeking multiple adjournments. The court concluded that while the delay was significant, it did not reach the level of being an abuse of process. The court held that the accused's right to a fair trial was not so prejudiced by the delay that it would be unjust to proceed with the prosecution. Accordingly, the court rejected the accused's application for a permanent stay of the indictment. The court found that the delay did not warrant a permanent stay, and that to proceed with the prosecution would not be an abuse of process.

Orders