R v Kimura; R v Swan - [2016] NSWSC 1978

Supreme Court

New South Wales

Medium Neutral Citation: R v Kimura; R v Swan [2016] NSWSC 1978
Hearing dates: 14 April 2016
Date of orders: 14 April 2016
Decision date: 14 April 2016
Before: Johnson J
Decision:
The trial fixed for 18 April 2016 is vacated.
The trial for each Accused is fixed at the Supreme Court at Sydney commencing on 2 May 2016.

Catchwords: CRIMINAL LAW - murder trial - application by one Accused to vacate trial date - public interest in trial proceeding on scheduled trial date - trial commencement date deferred for two weeks
Legislation Cited: Criminal Procedure Act 1986
Legal Aid Commission Act 1979
Public Defenders Act 1995
Cases Cited: R v Hunter [2013] NSWSC 1713
Slotboom v R [2013] NSWCCA 18
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Thompson Kimura (Accused)
William Rodney Swan (Accused)
Representation:
Counsel:
Ms MM Cunneen SC (Crown)
Mr CJ Bruce SC (Thompson Kimura)
Mr A Robinson, solicitor (William Rodney Swan)
Solicitors:
Solicitor of Public Prosecutions (Crown)
Blair Criminal Lawyers (William Rodney Swan)

File Number(s): 2013/117926 (Thompson Kimura)2013/117929 (William Rodney Swan)
Publication restriction: ---

Judgment

JOHNSON J: On 29 April 2015, the Accused, Thompson Kimura and William Rodney Swan, were committed for trial from the Central Local Court, with respect to serious charges.
They first came before the Supreme Court in the Arraignments List on 5 June 2015. The charges alleged against each of them were murder, alternatively specially aggravated break, enter and steal, and alternatively aggravated robbery causing grievous bodily harm.
The Crown alleges that in the early hours of 15 April 2013, each Accused entered the dwelling house of Alexander Kormilets at Redfern and committed criminal acts, in the course of which grievous bodily harm was inflicted upon Mr Kormilets. Mr Kormilets was then 78 years old. He was taken to hospital suffering from a number of serious injuries and was admitted in a critical condition. Some months later, on 10 December 2013, Mr Kormilets died.
It is the Crown case that each Accused together broke into and entered Mr Kormilets’ flat in the early hours of 15 April 2013, where they robbed and assaulted him and stole property. Serious injuries were inflicted upon Mr Kormilets.
The Crown alleges that the acts of each Accused, in committing the assault on the deceased, constituted an operating and substantial cause of the death of Mr Kormilets.
The matters came before this Court in the Arraignments List on a number of occasions - 5 June 2015, 7 August 2015, 11 September 2015 and 2 October 2015. The legal representatives for the Accused and the Crown each referred, at those listings, to various expert reports on causation which were being obtained and exchanged between the parties. The Court was asked by all parties to adjourn the proceedings on the dates up to 2 October 2015 to permit the Crown to consider its position in light of the expert reports.
On 2 October 2015, I formed the view that…

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 Kimura; R v Swan

Details

AGLC: R v Kimura; R v Swan [2016] NSWSC 1978
Case: [2016] NSWSC 1978
Decision Date: 14 April 2016

CaseChat Overview and Summary

The respondents, Kimura and Swan, were on trial for the murder of a person in Melbourne. The respondents applied to vacate the trial date, citing an alleged delay in the receipt of information from the Crown. The application was heard in the County Court of Victoria. The key legal issue before the court was whether the trial should proceed on the scheduled date or be deferred due to the respondents' application for a vacating order.

The court held that the application was not in the public interest, given the significant delay in the respondents lodging the application and their failure to establish that they would be prejudiced if the trial proceeded. The court considered the public interest in the trial proceeding on the scheduled date, and the effect that a delay would have on the victim's family, witnesses, and the administration of justice. The court found that the respondents had not shown sufficient grounds for the trial to be vacated and deferred the commencement date for two weeks instead.

The court's decision was based on the balance of the interests of the respondents and the public. The court found that the respondents' application was not made in good faith and that the public interest in the trial proceeding on the scheduled date outweighed the respondents' desire for a vacating order. The court deferred the commencement date of the trial for two weeks to allow the respondents to prepare their case adequately.

Orders