R v Il (No 3) - [2014] NSWSC 1733

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v IL (No 3) [2014] NSWSC 1733
Hearing dates: 3 December 2014
Decision date: 03 December 2014
Jurisdiction: Common Law
Before: Hamill J
Decision:
Application for adjournment refused.

Catchwords: CRIMINAL LAW - adjournment - discharge of jury - application for adjournment after ruling that no evidence support some counts on the indictment - application requiring discharge of jury - application to enable appeal against acquittal in circumstances where no interlocutory appeal available - decision said to be relevant to "other cases in the pipeline" - no details of other cases provided or known - delays in trial - expense - accused entitled to verdicts on other counts on indictment - accused on stringent bail condition for two years - suggestion that accused not prejudiced rejected - no prejudice to prosecution in remaining charges going to verdict
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Cases Cited: R v IL (No 2) (2014) NSWSC 1710
R v Lethlean (1985) 53 A Crim R 197
R v Cheng (1998) 48 NSWLR 616
Category: Procedural and other rulings
Parties: Crown
IL (Accused)
Representation:
Counsel:
R Herps (Crown)
R Pontello (Accused)
Solicitors:
DPP (Crown)
The Defenders (Accused)

File Number(s): 2012/3683
Publication restriction: Non-publication of any matter that may lead to the identification of the accused (Crimes (Appeal and Review) Act 2001 (NSW), s 111(1)(b))

Judgment

HIS HONOUR: This morning, Wednesday 3 December 2014, the Crown applied for an adjournment of the proceedings of Ms IL. These are my reasons for refusing that application.

The trial commenced on Monday 17 November 2014. The application for the adjournment came after the close of the prosecution case and after I delivered a judgment yesterday indicating that I intended to direct the jury to acquit the accused in relation to two of the seven counts on the indictment: R v IL (No 2) (2014) NSWSC 1710. I am told that if the case runs its course, the jury would be expected to retire to consider its verdict on Friday, 5 December 2014, or perhaps the following Monday.

The accused was arraigned on an indictment containing six counts. The second count contained two alternatives. The first count is a charge of manufacturing a large commercial quantity of methylamphetamine. That is an offence carrying a maximum penalty of life imprisonment. There is a standard non-parole period of fifteen years associated with that offence. The third, fifth and sixth counts are offences alleging the unauthorised possession of a pistol. They each carry a maximum penalty of fourteen years and a standard non-parole period of three years. The fourth count is an offence of possession of a prohibited weapon and that carries the same penalty, fourteen years with a standard non-parole period of three years. The second count was an allegation of murder, with manslaughter cast in the alternative.

The circumstances of the offences and an overview of the evidence led to by…

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 Il (No 3)

Details

AGLC: R v IL (No 3) [2014] NSWSC 1733
Case: [2014] NSWSC 1733
Decision Date: 03 December 2014

CaseChat Overview and Summary

The appeal involved the case of R v Il, heard in the Supreme Court of Victoria. The defendant was facing multiple counts related to criminal activities, including drug trafficking and other related offences. The crux of the appeal was the court's decision to discharge the jury and the subsequent application for an adjournment. The defendant's legal team argued that the discharge of the jury and the ruling that no evidence supported some counts on the indictment warranted an adjournment. They sought the adjournment to facilitate an appeal against the acquittal on those counts, as no interlocutory appeal was available.

The court had to determine whether the discharge of the jury and the acquittal on certain counts constituted grounds for an adjournment. Furthermore, the court needed to assess if the defendant's right to a verdict on the remaining counts was prejudiced by the discharge and whether the prosecution would suffer any disadvantage if the remaining charges went to the verdict. The Supreme Court needed to balance the rights of the defendant against the potential delays and expenses associated with further adjournments. The court also considered the stringent bail conditions imposed on the defendant for two years, and whether these conditions impacted the fairness of the proceedings.

The court ruled that the discharge of the jury and the acquittal on some counts did not prejudice the defendant. The stringent bail conditions imposed on the defendant for two years were deemed sufficient to ensure no prejudice. The court found that the defendant was entitled to verdicts on the remaining counts and that the prosecution would not be prejudiced if the remaining charges proceeded to verdict. Consequently, the application for an adjournment was dismissed, and the case was to proceed without further delay. This decision also clarified the court's stance on similar cases in the pipeline, affirming that the principles applied here would guide future proceedings.

Orders