R v G, KS - [2013] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, KS
[2013] SADC 15
Ruling of His Honour Judge Cuthbertson
18 February 2013
CRIMINAL LAW
- APPLICATION FOR STAY OF PROCEEDINGS
Application to stay proceedings - Applicant charged with two Counts of Indecent Assault and one Count of Persistent Sexual Exploitation of a Child - Applicant aged 90 years - Applicant unfit to plead - Delay leading to ageing of the applicant such that he became unfit to plead - Proceedings permanently stayed
Evidence Act 1929 s 32M(2); Criminal Law Consolidation Act 1935 s 72A, Division 3 of Part 8A & s269M, referred to.
Ridgeway v R (1995) 184 CLR 19; Williams v Spautz (1992) 174 CLR 509; Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393; Jago v District Court of New South Wales (1989) 168 CLR 23; DPP v Shirvanian (1998) 44 NSWLR 129; Walton v Gardiner (1993) 177 CLR 378; R v Abdulla (2005) 93 SASC 208; Subramaniam v R (2004) 211 ALR 1; R v Hakim (1989) 41 A Crim R 372, considered.

R v G, KS
[2013] SADC 15

The applicant is presented on two Counts of Indecent Assault and one Count of Persistent Sexual Exploitation of a Child in respect of three complainants.
Application is made by the applicant to permanently stay the Information of the Director of Public Prosecutions of 5 December 2011 on grounds of substantial delay between the commission of the offending and a complaint to authorities, delay in investigation and commencement of proceedings and prejudice to the Defendant due to the deterioration of the defendant’s health due to age.
The offences are alleged to have occurred between 1966 and 1976 at a time when the three complainants were aged between 11 and 15 years.
It is conceded by the prosecution and the defence that the applicant is unfit to stand trial insofar as he is unable to understand the nature of the proceedings or follow the proceedings and is unable to provide rational instruction to his counsel.
If not stayed the proceedings will be an enquiry into whether the objective elements of the offences have been established pursuant to s 269M of the Criminal Law Consolidation Act.
The applicant was born on 24 September 1922. He is now 90 years of age.
The prosecution case is that the applicant owned a farm in Cockatoo Valley in the nineteen seventies. The complainants, then in their early teens, helped him from time-to-time on the farm.
The first complainant Ro, date of birth 30 November 1955, claims that he did some work for the applicant on the applicant’s farm. He stayed one night and slept in a small tent on the front lawn with the applicant. During the night the applicant indecently assaulted him.
The second complainant Ra, date of birth 3 April 1962, claims that every time he went to the farm the applicant indecently touched him. He speaks…

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 G, KS

Details

AGLC: R v G, KS [2013] SADC 15
Case: [2013] SADC 15
Decision Date: 18 February 2013

CaseChat Overview and Summary

In the District Court of South Australia, the applicant, aged 90, has applied for a permanent stay of proceedings against charges of indecent assault and persistent sexual exploitation of a child. The applicant is deemed unfit to stand trial due to significant mental deterioration, rendering him unable to understand the proceedings or assist in his defence. The offences in question are alleged to have occurred between 1966 and 1976. The applicant was born in September 1922, making him 90 years old at the time of the hearing. The court was tasked with deciding whether substantial delays in reporting, investigating, and commencing the prosecution, coupled with the applicant's deteriorating health, warranted a permanent stay of proceedings. The court considered the principles governing stay applications, emphasising the discretion to stay proceedings only in rare and exceptional circumstances. It assessed the significant delays between the alleged offences, the initial complaints, the complainants' decisions to proceed, and the issuing of the Information. The court found that the delays, particularly those attributable to the prosecution, contributed to the applicant's mental deterioration, rendering him unfit to participate in a trial. The court concluded that allowing the proceedings to continue would be unfair and would undermine public confidence in the administration of justice. Consequently, the court ordered the proceedings to be permanently stayed.

Orders