R v Handlen, Paddison and Nerbas - [2012] QSC 433

SUPREME COURT OF QUEENSLAND

CITATION:

R v Handlen, Paddison & Nerbas [2012] QSC 433

PARTIES:

R
v
DALE CHRISTOPHER HANDLEN, DENNIS PAUL PADDISON, KELSEY JAMES NERBAS
(Applicants)

FILE NO/S:

87/12

DIVISION:

Trial

PROCEEDING:

Pre-trial hearing

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

30 April 2012

DELIVERED AT:

Cairns

HEARING DATE:

18 April 2012

JUDGE:

Henry J

ORDER:

Applications refused

CATCHWORDS:

CRIMINAL LAW – ABUSE OF PROCESS – where the applicants seek an order that further proceedings on the indictment against them be permanently stayed – where delay of five and a half years – whether this will cause prejudice to the applicants so grave as to warrant a permanent stay of prosecution

CRIMINAL LAW – ABUSE OF PROCESS – where the applicants seek an order that further proceedings on the indictment against them be permanently stayed – where first trial proceeded where there existed no legal foundation for liability – where the applicants argue if that error had been realised a successful no case submission could have been made

Island Maritime Ltd v Filipowski (2006) 226 CLR 328
R v Taufahema (2007) 228 CLR 232

COUNSEL:

W Abraham QC and M Ho for the Crown
P Smith for Handlen
E Wilson for Paddison
M Chowdhury for Nerbas

SOLICITORS:

Fisher Dore Lawyers for Handlen
Mackenzie Mitchell Solicitors for Paddison
Russo Mahon Lawyers for Nerbas

The applicants seek an order that further proceedings on the indictment against them before the Supreme Court be permanently stayed as an abuse of process.

The applicants rely in the main upon the consequences of delay and the course and consequence of events at their ill-fated first trial.

The indictment(s)

There are actually two indictments against the applicants before the Supreme Court.

The old indictment charges Handlen, Paddison and Nerbas co-jointly with two counts of importing a commercial quantity of border controlled drugs contrary to ss 307.1 and 311.1 of the Commonwealth Criminal Code (“the Code”) and one count of attempted possession of a commercial quantity of border controlled drug contrary to s 307.5 of the Code. It also charges Handlen and Nerbas separately with identical counts of possessing a commercial quantity of border controlled drugs contrary to ss 307.5 and 311.1 of the Code. In each instance, the drugs are alleged to be cocaine, ecstasy and methamphetamine.

The new indictment charges them with the same offences, except each accused is now charged separately with the offences with which they were charged co-jointly in the old indictment and the first of the between dates in the earliest offences charges has been changed from 1 August 2005 to 6 April 2006. Also, in the new indictment s 11.2(1) of the Code (aid, abet, counsel or procure) now features in the sections in the margin against the importation and possession charges, whereas it was not included in the old indictment.

These variations are inconsequential to the application’s breadth, in that its complaint is against the continued prosecution of the applicants for the same alleged criminal misconduct with which…

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 Handlen, Paddison and Nerbas

Details

AGLC: R v Handlen, Paddison and Nerbas [2012] QSC 433
Case: [2012] QSC 433
Decision Date: 30 April 2012

CaseChat Overview and Summary

The case of R v Handlen, Paddison and Nerbas involved the applicants seeking to have further proceedings against them permanently stayed. The applicants were indicted on criminal charges, and their application was heard by the court. The central issue before the court was whether the significant delay in proceedings, which spanned over five and a half years, would result in prejudice to the applicants that was grave enough to warrant a permanent stay of prosecution. Furthermore, the applicants argued that the initial trial had proceeded without a proper legal basis for their liability and contended that if this error had been identified, a successful no case submission could have been made.

The court considered the applicants' arguments regarding the delay and the absence of a legal foundation for their liability. The applicants contended that the prolonged delay would prejudice their right to a fair trial, which is a fundamental aspect of the criminal justice system. Additionally, the applicants argued that the absence of a legal basis for their liability in the initial trial was a significant procedural error that, if recognised, would have warranted a successful no case submission. The court had to weigh the applicants' arguments against the principles of justice and the need to ensure that the administration of justice is not unduly impeded.

In dismissing the applications, the court found that the applicants had not demonstrated that the delay caused them such grave prejudice as to warrant a permanent stay of prosecution. The court also determined that the alleged procedural errors in the initial trial did not reach the threshold of such fundamental unfairness as to necessitate a permanent stay of proceedings. The applicants' arguments, while significant, did not meet the stringent criteria required to justify a permanent stay of prosecution. Consequently, the court refused the applications and determined that the matter should proceed to trial.

The court made no orders in favour of the applicants, thereby refusing their requests for a permanent stay of proceedings. The case proceeded, and the applicants faced trial on the indictment against them. The court's decision emphasised the importance of ensuring that the administration of justice is not unduly impeded, even in the face of significant arguments regarding delay and procedural errors.

Orders

Orders of the court

Applications refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Handlen, Paddison & Nerbas [2012] QSC 433
PARTIES:	R v DALE CHRISTOPHER HANDLEN, DENNIS PAUL PADDISON, KELSEY JAMES NERBAS (Applicants)
FILE NO/S:	87/12
DIVISION:	Trial
PROCEEDING:	Pre-trial hearing
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	30 April 2012
DELIVERED AT:	Cairns
HEARING DATE:	18 April 2012
JUDGE:	Henry J
ORDER:	Applications refused
CATCHWORDS:	CRIMINAL LAW – ABUSE OF PROCESS – where the applicants seek an order that further proceedings on the indictment against them be permanently stayed – where delay of five and a half years – whether this will cause prejudice to the applicants so grave as to warrant a permanent stay of prosecution CRIMINAL LAW – ABUSE OF PROCESS – where the applicants seek an order that further proceedings on the indictment against them be permanently stayed – where first trial proceeded where there existed no legal foundation for liability – where the applicants argue if that error had been realised a successful no case submission could have been made Island Maritime Ltd v Filipowski (2006) 226 CLR 328 R v Taufahema (2007) 228 CLR 232
COUNSEL:	W Abraham QC and M Ho for the Crown P Smith for Handlen E Wilson for Paddison M Chowdhury for Nerbas
SOLICITORS:	Fisher Dore Lawyers for Handlen Mackenzie Mitchell Solicitors for Paddison Russo Mahon Lawyers for Nerbas