R v Gary Shane Austin - [2010] ACTSC 47

HUMAN RIGHTS ACT

R v GARY SHANE AUSTIN
[2010] ACTSC 47 (26 MAY 2010)

CRIMINAL LAW AND PROCEDURE – Application in proceedings – proceedings against accused be stayed or dismissed – rule 4750, Court Procedures Rules 2006 (ACT)
CRIMINAL LAW AND PROCEDURE – Obligations of Justice of the Peace (ACT) – Manner and form of affidavit – incorrect format of affidavit.
CRIMINAL LAW AND PROCEDURE – Grounds for proceedings to be stayed or dismissed – Contravention of ss 32 and 33 of Evidence Act 1995 (Cth) - manner of execution of search warrants – release of prejudicial information to the media – unrecorded conversation during execution of search warrant – prosecution was malicious – forensic evidence unavailable at the time of committal.
CRIMINAL LAW AND PROCEDURE – Accused complaints of impropriety by the Australian Federal Police – Lack of ACT Supreme Court jurisdiction to consider the complaints – Ombudsman office better placed to deal with complaints of accused.
CRIMINAL LAW – Self represented litigants.

Criminal Code 2002 (ACT), s 603(5)
Court Procedures Rules 2006 (ACT), rr 4750, 6712(4), 6719
Evidence Act 1995 (Cth), ss 8(4)(b), 32, 33, 138
Magistrates Court Act 1930 (ACT), ss 90, 90AA, 90AB
Human Rights Act 2004 (ACT), s 7
Crimes Act 1914 (Cth), ss 23N, 23V

Guidance Notes for Justices of the Peace of the Australian Capital Territory (Canberra: 1993), especially pp 8-10, 14-22 and 31-33).
Choo, A L-T, Abuse of Process and Judicial Stays of Criminal Proceedings (Clarendon Press: Oxford, 1993) p 107
Chesterman M, Chan J, Hampton S, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (2001).

R v Singh (1977) 15 SASR 591
R v Van Beelen (1973) 64 SASR 353
Semayne v Gresham (1604) 5 Co Rep 91a; 77 ER 194
Lippl v Haines (1989) 18 NSWLR 620
Eccles v Bourque (1974) 19 CCC (2d) 129
Dillon v O’Brien & Davies (1887) 16 Cox CC 245
Troubadour v Commonwealth of Australia (1992) 110 FLR 123
Bunning v Cross (1977) 141 CLR 54
Jago v District Court of New South Wales (1989) 168 CLR 23
Rowell v Larter (1986) 6 NSWLR 21
R v Glennon (1992) 173 CLR 592
Murphy v The Queen (1989) 167 CLR 94
A v New South Wales (2007) 230 CLR 500
Kite (1992) 60 A Crim R 226

Re Van Beelen (1974) 9 SASR 163
Fermia v Hand (1984) 53 ALR 731
R v Basha (1989) 39 A Crim R 337

EX TEMPORE JUDGMENT

No. SCC 297 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 26 May 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 297 of 2009
AUSTRALIAN CAPITAL TERRITORY )

R
v

GARY SHANE AUSTIN

ORDER

Judge:  Refshauge J
Date:  10 May 2010
Place:  Canberra

THE COURT ORDERS THAT:

The application is dismissed.

The proceedings be listed for further directions at 9:30, 11 August 2010.

On 6 August 2009, the accused, Gary Shane Austin, was committed by the ACT Magistrates Court for…

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 Gary Shane Austin

Details

AGLC: R v Gary Shane Austin [2010] ACTSC 47
Case: [2010] ACTSC 47
Decision Date: 26 MAY 2010

CaseChat Overview and Summary

In the case of R v Gary Shane Austin, the appellant applied to have the proceedings against him stayed or dismissed, citing several grounds for his application. The application was heard in the ACT Magistrates Court. The appellant's primary contention was that the proceedings should be dismissed due to alleged procedural errors and malicious conduct by the prosecution. These included the improper format of an affidavit, alleged contravention of evidence laws, and prejudicial media leaks.

The court was required to determine whether the application to stay or dismiss the proceedings should be granted. This involved assessing the validity of the appellant's claims regarding procedural errors, the manner in which evidence was handled, and the availability of forensic evidence. Additionally, the court had to consider the appellant's complaints about the conduct of the Australian Federal Police and whether these were matters properly before the court.

The court found that the appellant's application was without merit. It held that the manner in which the affidavit was executed did not warrant dismissal of the proceedings. The court also concluded that the alleged contraventions of evidence laws and malicious conduct by the prosecution were not substantiated. Furthermore, the court found that it lacked jurisdiction to consider the appellant's complaints about the Australian Federal Police, as these were more appropriately addressed by the Ombudsman office. The application was dismissed, and the proceedings were listed for further directions.

Orders

Orders of the court

1. The application is dismissed.

2. The proceedings be listed for further directions at 9:30, 11 August 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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