R v Kalachoff - [2017] ACTSC 310

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kalachoff
Citation:	[2017] ACTSC 310
Hearing Date:	25 August 2017
DecisionDate:	25 August 2017
Before:	Mossop J
Decision:	The application in proceedings dated 21 August 2017 and filed on 23 August 2017 is dismissed.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of proceedings – trial of an alleged indigent person – Dietrich application – alleged abuse of process by Crown – alleged forensic disadvantage – stay of proceedings not granted
Legislation Cited:	Court Procedures Act 2004 (ACT), s 76 Crimes Act 1900 (ACT), ss 20, 24 Human Rights Act 2004 (ACT), s 22(2)(f)
Cases Cited:	A-G (NSW) v Milat (1995) 37 NSWLR 370 Dietrich v The Queen (1992) 177 CLR 292 Karounos (1995) 77 A Crim R 479 Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 Maxwell v The Queen (1996) 184 CLR 501 R v Thompson (No 3) [2017] ACTSC 53 Williams v Spautz (1992) 174 CLR 509
Parties:	The Queen (Crown) Brock Kalachoff (Accused)
Representation:	Counsel Mr S McLaughlin (Crown) Mr J Masters (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Marjason & Marjason (Accused)
File Numbers:	SCC 225 of 2016 SCC 226 of 2016

MOSSOP J:

Introduction

The accused’s retrial is scheduled to commence next Wednesday 30 August 2017. By application in proceedings, filed with leave in Court on 23 August 2017, the accused has sought orders on the following terms:

That the prosecution in these proceedings be permanently stayed due to:
(a) the decision to proceed to a second trial being an abuse of process; and/or
(b) the accused not being able to get a fair trial.

The grounds for the application are set out at some length in the application in proceedings.

The accused relied upon the affidavits of his solicitor, Mr H Marjason, dated 21 August 2017 and 24 August 2017.

The background to the present application is as follows.

The accused is facing a charge of recklessly inflicting grievous bodily harm and an alternative charge of assault occasioning actual bodily harm. His first trial commenced on 5 June 2017 before a jury of 12. At that trial he was represented by a solicitor and counsel on a pro bono basis. The jury was discharged shortly before its conclusion on a joint application by the Crown and defence arising from inadmissible evidence being inadvertently provided to the jury in the transcript of a taped record of interview.

Following the discharge of the jury, the solicitor for the accused wrote, on 15 June 2017, to the Attorney-General of the ACT seeking an ex-gratia payment for the costs of the aborted trial. That was notwithstanding the fact that he had incurred no costs because solicitor and counsel appeared pro bono. On 1 August 2017 the Chief Minister and Treasurer responded stating:

I have reviewed your request and have determined that while the events are unfortunate, they do not meet the requirements to warrant an Act of Grace payment.…

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 Kalachoff

Details

AGLC: R v Kalachoff [2017] ACTSC 310
Case: [2017] ACTSC 310
Decision Date: 25 August 2017

CaseChat Overview and Summary

The case of R v Kalachoff involved the defendant, Kalachoff, who was being prosecuted for alleged criminal activities. The matter was before the court to determine issues related to the defendant's ability to secure legal representation due to his financial status and the potential impact on his right to a fair trial. The case was heard in a court of criminal jurisdiction in Australia.

The primary legal issues addressed by the court revolved around the defendant's indigence and its effect on his ability to obtain legal counsel. The court also considered whether the Crown had acted improperly in any way that could be considered an abuse of process. Furthermore, the court examined whether the defendant faced a forensic disadvantage due to the delay in proceedings, which could potentially impact his right to a fair trial.

In ruling on the application for a stay of proceedings, the court found that there was no evidence of abuse of process by the Crown and that the delay did not result in a forensic disadvantage to the defendant. The court emphasised the importance of the right to a fair trial but also noted the need to balance this against the rights of the community and the efficient administration of justice. Consequently, the application for a stay of proceedings was dismissed, and the trial proceeded as scheduled.

The court’s decision resulted in the dismissal of the application for a stay of proceedings, thereby allowing the criminal trial against Kalachoff to continue without further delay.

Orders

Orders of the court

The application in proceedings dated 21 August 2017 and filed on 23 August 2017 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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