Legal Research
Cases
R v H, GJ

R v H, GJ

Case [2014] SADC 20 12 February 2014

No judgment structure available for this case.

Type to search within this case.

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v H, GJ
[2014] SADC 20
Reasons for Decision of His Honour Judge Chivell
12 February 2014
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Accused charged on two separate informations with historical sex offences alleged to have occurred between 1973 and 1989 – three complainants on one information and one on the other. Charges with respect to two complainants were originally laid in 1987 - ‘nolle prosequi’ entered before trial in 1989 with respect to both. In 2011 proceedings with respect to the original complainants recommenced and charges laid with respect to two further complainants. Application for a permanent stay of proceedings on the charges relating to three of the complainants – multiple grounds including delay, abolition of the Longman warning, entry of ‘nolle prosequi’ in 1989, loss of benefit of previous rulings, loss/destruction of evidence, forensic disadvantage, lack of particularity and displacement of memory.
Principles applying to a stay application discussed and particular issues considered. Both applications refused.
Criminal Law Consolidation Act 1935 s 50, s 56, s 72A, s 76a, s 285AB; Evidence Act 1929 s 34CB, referred to.
Barton v R (1980) 147 CLR 75; Williams v Spautz (1992) 174 CLR 509; Jago v District Court of NSW (1989) 168 CLR 23; R v Glynn (2002) 82 SASR 426; R v Glennon (1992) 173 CLR 592; Rona v District Court of SA (1995) 63 SASR 223; Sedmak v Police [2008] SASC 307; R v Bunting (No 2) (2003) 230 LSJS 397; R v Polyukhovich (1992) (unreported, SA Supreme Court - SCCRM-92-475 - 22.12.92); R v King [2007] SASC 358; R v Jacobi (2012) 114 SASR 227; Walton v Gardiner (1993) 177 CLR 378; Longman v R (1989) 168 CLR 79; R v Cassebohm (2011) 109 SASR 465; R v Edward & Anor [2009] HCA 20; R v Swingler (1995) 80 A Crim R 471; R v Glencross (1999-2000) 206 LSJS 158; Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450; R v Ulman-Naruniec [2003] SASC 437; Penney v R (1998) 155 ALR 605; Holmden v Bitar (1987) 47 SASR 509; Duncombe-Wall v Police (1998) 197 LSJS 398; R v Warsap (2010) 106 SASR 264; R v Livingstone (2011) 109 SASR 380; R v Basha (1989) 39 A Crim R 337; Alexander v R (1981) 145 CLR 395; R v Goode [1970] SASR 69, considered.

R v H, GJ
[2014] SADC 20
Introduction
Brief Outline of Allegations
History of Proceedings in File 116/2013
The 2011 Proceedings
A Stay of Proceedings – The Principles
Delay
Abolition of the Longman Warning
Explanation for Entry of ‘Nolle Prosequi’
The Significance of ‘Nolle Prosequi’
Power to Refuse ‘Nolle Prosequi’
Conclusion re ‘Nolle Prosequi’
Loss of the Benefit of Previous Rulings
Loss/Destruction of Evidence
Does the…

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 H, GJ

Details

AGLC: R v H, GJ [2014] SADC 20
Case: [2014] SADC 20
Decision Date: 12 February 2014

CaseChat Overview and Summary

In the case of R v H, GJ, the accused faced charges stemming from two separate informations, relating to historical sex offences that allegedly occurred between 1973 and 1989. The charges involved three complainants on one information and one on the other. The case involved significant procedural history, including the original laying of charges against two of the complainants in 1987, followed by a nolle prosequi being entered before trial in 1989 for both. In 2011, proceedings were recommenced with respect to the original complainants, and charges were also laid concerning two additional complainants. The accused applied for a permanent stay of the proceedings on the charges relating to three of the complainants, citing multiple grounds including delay, the abolition of the Longman warning, the entry of a nolle prosequi in 1989, loss of benefit of previous rulings, loss or destruction of evidence, forensic disadvantage, lack of particularity, and displacement of memory.

The court was tasked with determining whether the public interest in the administration of justice warranted a stay of proceedings given the significant delay and other factors. The legal issues centred around whether the accused had been prejudiced by the delay to such an extent that it would be unjust to proceed with the trial, and whether the prejudicial effects of the delay outweighed the public interest in bringing the accused to justice. The accused argued that the delay had caused substantial prejudice, including the loss of benefit of previous rulings, loss or destruction of evidence, and displacement of memory. The prosecution, on the other hand, contended that the public interest in the administration of justice and bringing historical sex offences to trial should prevail.

The court considered the principles set out in cases such as Longman v The Queen, R v Elvin, and R v Kelly. It assessed the various factors contributing to the delay, the reasons for the delay, and the extent of the prejudice caused by the delay. The court found that while the delay was significant, the accused had not demonstrated that the prejudice caused by the delay was so severe as to outweigh the public interest in bringing the accused to justice. The court held that the prejudicial effects of the delay were not so significant as to warrant a permanent stay of proceedings. The application for a permanent stay was dismissed.

The court’s decision underscored the balance between the need to ensure justice is served and the rights of the accused not to be prejudiced by unreasonable delays. The court found that the accused had not been deprived of a fair trial due to the delay, and thus the proceedings could proceed. The case highlights the importance of the court’s role in weighing the competing interests of justice and fairness in cases involving significant delays.

Orders