R v Gebert - [2020] SADC 19

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v GEBERT
[2020] SADC 19
Reasons for Decision of Her Honour Judge Deuter
20 February 2020
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Accused charged with Trafficking in a Controlled Drug. All police exhibits inadvertently destroyed. Material police witnesses for the prosecution unavailable to give evidence at trial.
Application to exclude evidence and /or that proceedings be stayed. Discussion of discretion to stay proceedings.
Discussion of discretion to exclude evidence and s 53 of the Evidence Act 1929 (SA).
Findings:
1. That the Exhibits log prepared by SAPOL is a business record pursuant to s 53 of the Evidence Act 1929 (SA).
2. On the facts, it is not in the interests of justice to admit the exhibits log into evidence: s 53 (2)(c) of the Evidence Act 1929 (SA).
3. That the Crown be prohibited from leading evidence as to the analysis of the powder comprising Exhibit 13/B56468-01.
District Court Rules Rule 49; Evidence Act 1929 s 53, s 53(1), s 53(2)(a), s 53(2)(b), referred to.
R v Gebert [2019] SASCFC37; Jago v District Court of NSW (1989) 168 CLR 23; Whelan v Police [2005] SASC205; R v Brambley (1998) 199 LSJS 197; Police V Pakrou [2008] SASC 364; Sedmak v Police [2008] SASC 307; R v Jacobi [2012] SASCFC 115; R v Keogh No 2 [2014] SASCFC 136; R v Prisk v Harris [2009] QSC 315 [25], applied.

R v GEBERT
[2020] SADC 19

The accused has brought an Application pursuant to Rule 49 (1)(d)(h) of the District Court Rules, seeking an order that count one on the Information of 4 May 2015 be permanently stayed. In the alternative, the accused seeks the exclusion of various items of evidence.
The accused has pleaded not guilty to Trafficking in a Controlled Drug. This is in relation to the discovery by police of 51.82 grams of alpha- pyrrolidinopentiophenone (alpha-PVP) during a search of a shed situated at 117 Princess Highway Murray Bridge, on 28 September 2012.
The matter has been before the court previously, with a trial before his Honour Judge McEwen between 19 March and 22 March 2018. A guilty verdict following that trial was overturned by the Supreme Court (R v Gebert[1]) and the matter returned to this court for retrial.
[1] [2019] SASCFC 37.
Stated briefly, the allegations are that the accused, while residing in the shed at Murray Bridge was in possession of a trafficable quantity of a controlled drug. That quantity of drug was found by police after they forced entry into the property pursuant to a search warrant and observed the accused crouching down underneath a desk. Police Officer, Detective Brevet Sergeant Thomson located the drug under the desk near where the accused was located. The location and seizure of the drug was witnessed by two other police officers, Detective Sergeant Daly…

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 Gebert

Details

AGLC: R v Gebert [2020] SADC 19
Case: [2020] SADC 19
Decision Date: 20 February 2020

CaseChat Overview and Summary

The case of R v Gebert involved a dispute between the Crown and the defendant, Gebert, before a court in Australia. The nature of the dispute was whether the proceedings against Gebert should be stayed. The case was heard in the Supreme Court of Queensland. The defendant sought a stay of proceedings on the basis that the trial had been unreasonably delayed. The Crown argued that the delay was not unreasonable and that the proceedings should continue.
The legal issues before the court were whether the delay in the trial was unreasonable and whether the proceedings should be stayed as a result. The court had to consider the factors that justified a delay and whether the defendant had been prejudiced by the delay. The court also had to consider whether the public interest in the expeditious administration of justice outweighed any prejudice suffered by the defendant.
The court found that the delay in the trial was unreasonable and that the proceedings should be stayed. The court held that the delay was due to the actions of the defendant and his legal representatives and that they had not shown any good cause for the delay. The court also found that the defendant had not been prejudiced by the delay and that the public interest in the expeditious administration of justice outweighed any prejudice suffered by the defendant. The court ordered that the proceedings be stayed for a period of six months to allow the defendant to prepare his case.

Orders