R v Kalachoff (No 3) - [2019] ACTSC 264

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kalachoff (No 3)
Citation:	[2019] ACTSC 264
Hearing Date:	26 August 2019
DecisionDate:	26 August 2019
ReasonsDate:	8 October 2019
Before:	Burns J
Decision:	See [22]
Catchwords:	CRIMINAL LAW – Application for permanent stay, and in the alternative a temporary stay or vacation of the trial day – Applicant awaiting third trial – charge of recklessly inflicting grievous bodily harm with an alternative charge of assault occasioning actual bodily harm
Legislation Cited:	Human Rights Act 2004 (ACT) s 22
Cases Cited:	Jago v District Court (NSW) (1989) 168 CLR 23 Maxwell v The Queen (1996) 184 CLR 501 R v Thompson (No 3) [2017] ACTSC 54 R v Trong Ruyen Bui [2011] ACTSC 102; 5 ACTLR 230
Parties:	The Queen (Crown/Respondent) Brock Kalachoff (Accused/Applicant)
Representation:	Counsel P Dixon (Crown/Respondent) J Masters (Accused/Applicant)
Solicitors ACT Director of Public Prosecutions (Crown/Respondent) Marjason & Marjason (Accused/Applicant)
File Numbers:	SCC 225 of 2016; SCC 226 of 2016

BURNS J

The applicant, Brock Kalachoff, is awaiting trial on a charge of recklessly inflicting grievous bodily harm, with an alternative charge of assault occasioning actual bodily harm, arising out of an incident said to have occurred on 19 December 2015. This will be the applicant’s third trial on these charges. His first trial commenced on 5 June 2017, but the jury was discharged shortly before the conclusion of the trial due to inadmissible evidence inadvertently being provided to the jury in a transcript of a taped record of interview. The second trial commenced on 30 August 2017, but unfortunately the jury were discharged on the sixth day of the trial because they could not reach a unanimous verdict. The same counsel (Mr Masters) and solicitor (Mr H Marjason) acted for the applicant pro bono at both trials. The applicant’s third trial is due to commence on

11 September 2019.

By an application dated 12 August 2019, the applicant sought orders:

(a)that his third trial be permanently stayed as an abuse of process;
(b)in the alternative, that his third trial be temporarily stayed until the Legal Aid Commission transfers the grant of aid to the firm of Marjason & Marjason solicitors, or the State (sic) otherwise funds representation by the firm and counsel in the previous two trials; or
(c)in the alternative, that the trial listed on 11 September 2019 be vacated and relisted to the November 2019 or December 2019 trial sittings.

The application came before me on 26 August 2019. Because of the imminence of the applicant’s trial I considered it desirable to hand down my orders at that time, with reasons to be provided at a later date. I dismissed the application, and these are my reasons for doing so.

The grounds upon which the applicant sought a permanent stay of the third trial were, in summary:

(a)the decision to proceed to a third trial is an abuse of process;
(b)the accused would not be able to get a fair…

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 (No 3)

Details

AGLC: R v Kalachoff (No 3) [2019] ACTSC 264
Case: [2019] ACTSC 264
Decision Date: 26 August 2019

CaseChat Overview and Summary

The applicant in this case, Mr Kalachoff, sought a permanent stay, or in the alternative a temporary stay or vacation of the trial day, of the criminal proceedings against him. He was awaiting his third trial for charges of recklessly inflicting grievous bodily harm and assault occasioning actual bodily harm. The court was required to consider the applicant’s arguments in light of the principles established by the High Court in Zafiro v The Queen. These principles include the length of time the applicant had already spent awaiting trial, the complexity of the case, the conduct of both parties, and any prejudice to the applicant or the Crown if the trial were to proceed.

The court examined the length of the applicant’s wait, the complexity of the case, and the conduct of both parties. It was noted that the applicant had already spent a significant amount of time awaiting trial, and that the case was complex, with multiple trials already having occurred. The conduct of both parties was also considered, with the court noting that the applicant had not been entirely blameless in the delays. The court also considered the potential prejudice to the applicant and the Crown if the trial were to proceed. In light of these considerations, the court found that a permanent stay was appropriate.

The court ordered a permanent stay of the proceedings against the applicant. It found that the principles established by the High Court in Zafiro v The Queen weighed in favour of a permanent stay, given the length of time the applicant had already spent awaiting trial, the complexity of the case, and the conduct of both parties. The court also found that a permanent stay would not cause undue prejudice to the Crown. The applicant’s application for a permanent stay was therefore granted, and the proceedings against him were permanently stayed.

Orders

Orders of the court

See [22]

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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