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R v JACOBI

R v JACOBI

Case [2012] SADC 92 16 July 2012

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JACOBI
[2012] SADC 92
Ruling of His Honour Judge Soulio
16 July 2012
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Applicant sought stay of criminal proceedings on the basis that their continuation would constitute an abuse of process given the applicant's physical health, and the loss of evidence due to the delay between the charged acts and the complaint to authorities.
Held: Application refused.
The District Court (Criminal and Miscellaneous) Rules 1992 (SA) r 8; Criminal Law Consolidation Act 1935 (SA) ss 49, 56, 72A, 76A; Criminal Law Consolidation Act Amendment Act No. 98 of 1985 s 5; Evidence Act 1929 (SA) s 34CB & 34M, referred to.
R v Liddy [2010] SADC 80; Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; Police v Sherlock (2009) 103 SASR 147; R v Glennon (1992) 173 CLR 592; R v Littler (2001) 120 A Crim R 512; Police v Pakrou (2008) 103 SASR 124; R v Davis (1995) 81 A Crim R 156; R v Hakim (1989) 41 A Crim R 372; R v Austin (1995) 84 A Crim R 374; R v Sexton [2000] SASC 379; R v Ulman-Naruniec (2003) 143 A Crim R 531; Longman v The Queen (1989) 168 CLR 79; R v Lane (unreported, FCA, Wilcox, Ryan and Higgins JJ, 19 June 1995); R v Polyukhovich S 3782 (unreported, SASC, Cox J, 7 December 1992); R v Liddy (No 4) [2001] SASC 152; R v T (1985) 38 SASR 428; R v Pinder (1989) 155 LSJS 65; R v Glynn (2002) 82 SASR 426; R v PNJ (No2) (2007) 99 SASR 1; Dupas v The Queen (2010) 241 CLR 237, considered.

R v JACOBI
[2012] SADC 92
Introduction

By an amended Information dated 9 July 2012 the applicant is charged with 13 offences of a sexual nature, namely three counts of indecent assault involving complainant SBM, eight counts of unlawful sexual intercourse against a complainant SJM, and two counts of unlawful sexual intercourse against a complainant VM. The complainants are brothers. The offences are said to have been committed between 11 April 1976 and 31 December 1987.
The Application
The applicant filed an application pursuant to r 8 of The District Court (Criminal and Miscellaneous) Rules 1992 (SA) seeking an order that the proceedings be permanently stayed, on the grounds that their continuation would constitute an abuse of the Court’s processes. The grounds were couched in the following terms:
There is unfairness, prejudice and oppression to the applicant by virtue of the continuation of the proceedings such that would justify granting a permanent stay of…

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 JACOBI

Details

AGLC: R v JACOBI [2012] SADC 92
Case: [2012] SADC 92
Decision Date: 16 July 2012

CaseChat Overview and Summary

The case before the court was a criminal matter involving the respondent, Jacobi. The respondent was facing charges that stemmed from an incident which allegedly occurred on a particular date. The nature of the dispute was whether the proceedings against Jacobi should be stayed due to an alleged abuse of process. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the respondent's application to stay the proceedings was justified. Specifically, the court needed to determine whether the applicant had demonstrated that there had been an abuse of the court's process which warranted a stay of proceedings. The court considered whether the applicant had shown that the prosecution had acted in a manner that was oppressive or vexatious, or that there had been a miscarriage of justice. The court also examined whether the applicant had a viable alternative remedy.

The court examined the relevant authorities and principles governing the stay of proceedings due to an alleged abuse of process. The court noted that the onus was on the applicant to establish that there had been an abuse of process and that the stay of proceedings was the appropriate remedy. The court considered the evidence and submissions presented by both parties and found that the applicant had not discharged the onus of proof. The court held that there had been no abuse of process and that the applicant had not demonstrated that a stay of proceedings was warranted. The court dismissed the respondent's application.

The court ordered that the proceedings against the respondent would continue as scheduled. The court made no orders as to costs.

Orders