R v FRANCO - [2008] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRANCO
[2008] SADC 126
Reasons for Decision of Her Honour Judge McIntyre
2 September 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Application for stay of proceedings when alternative remedies available to the accused - whether District Court has jurisdiction if matter has been "improperly" committed - discussion of general principles of abuse of process - application for stay of proceedings dismissed.
District Court Criminal Rules 1987 Rule 8; Controlled Substances Act 1984 s32(1)(b), s32(1)(e); Criminal Law Consolidation Act 1935 s277, referred to.
R v Harris (No.3) (1990) VR 305 ; R v O'Neill (1989) 53 SASR 1; Barton v R (1980) 147 CLR 75 at 95 ; Williams v Spautz (1992) 174 CLR 509 at 529; R v Barton (1980) 147 CLR 75 at 111; Jago v District Court of New South Wales and Others (1989) 168 CLR 23 at 45-48; R v McGee (2008) SADC 8 AT [19]-[34]; R v Pfitzner (1976) 15 SASR 171; R v Maggs [2008] SADC 105 ; Johnson v Miller (1937) 59 CLR 467, considered.

R v FRANCO
[2008] SADC 126
The Application

The accused applied, pursuant to Rule 8 of the District Court Criminal Rules, for the following orders:
1. That the fresh information filed on 6 May 2008 be quashed.
2. In the alternative, the Information be permanently stayed or stayed until further order.
3. Such further order, orders or directions as the court deems fit.
The application is supported by an affidavit of Mr Mancini sworn on 7 May 2008.
I heard argument on the application on 8 May 2008. I gave a ruling, with brief reasons, declining that application on Friday 9 May 2008. These are the detailed reasons for that ruling as requested by the accused.
Background
On 14 July 2006 the accused was committed for trial on a charge of taking part in the production of methylamphetamine contrary to s.32(1)(b) of the Controlled Substances Act (1984) (“The Act”)
On 14 August 2006 the accused was arraigned in the District Court on an Information dated 14 August 2006. The first count alleged that he and Golda Marie Reading took part in the manufacture of methylamphetamine contrary to s.32(1)(b) of the Act between 1 August 2005 and 11 August 2005 at Paralowie. The second count alleged possession of methylamphetamine for sale contrary to s.32(1)(e) of the Act on 11 August 2005 at Paralowie.
On 6 May 2008 the prosecution filed a fresh Information alleging two counts of taking part in the manufacture of methylamphetamine. Count 1 is particularised as having occurred at Paralowie on 20 July 2005. Count 2 is alleged to have occurred at Paralowie on 11 August 2005. The accused’s application relates to that information (“the May information”).
The defence says, correctly, that there was no committal in relation to the May Information. It is further said that it…

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 FRANCO

Details

AGLC: R v Franco [2008] SADC 126
Case: [2008] SADC 126
Decision Date: 2 September 2008

CaseChat Overview and Summary

Franco has applied for a stay of proceedings against the charges brought against him by the Crown. The application was heard in the District Court of New South Wales, where the primary legal issue was whether the court had the authority to stay the proceedings when there were available alternative remedies to the accused. A further issue was whether the District Court had jurisdiction to hear the matter if it had been improperly committed to it.

The court considered the general principles of abuse of process and whether there had been any such abuse in this case. The court noted that there were alternative remedies available to the accused, which meant that the court was not inclined to exercise its discretion to stay the proceedings. The court also held that it did have jurisdiction to hear the matter, even if it had been improperly committed to it. Consequently, the application for a stay of proceedings was dismissed.

The court's decision was based on the balance of convenience test, which weighed the interests of the parties against each other. The court found that the interests of the accused were adequately protected by the alternative remedies available to him, and that there was no sufficient reason to stay the proceedings. Therefore, the court dismissed the application for a stay of proceedings.

Orders