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R v Klobucar (No 4)

R v Klobucar (No 4)

Case [2016] ACTSC 348 25 November 2016

Jurisdiction

Stay of Proceedings

Abuse of Process

Unlawful Possession of Prohibited Weapon

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Klobucar (No 4)
Citation:	[2016] ACTSC 348
Hearing Date(s):	7 November 2016
Last written submissions received:	22 November 2016
DecisionDate:	25 November 2016
Before:	Penfold J
Decision:	The application for a stay of proceedings in respect of two charges of possession of a prohibited weapon (CC14/445 and CC14/446) is refused.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Adjournment, Stay of Proceedings or Order Restraining Proceedings – application by accused for permanent stay of proceedings – two charges of unlawful possession of prohibited weapon – accused previously found not guilty by reason of mental impairment of charge of murder on same day as date of possession charges – Crown declined to consent to court entering special verdicts under s 321, Crimes Act 1900, or dismissing orders under s 334, Crimes Act1900 – whether conduct of Crown amounts to abuse of process or prosecutorial oppression – stay refused. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – two charges of unlawful possession of prohibited weapon – application of s 28, Criminal Code 2002 (mental impairment defence) to offences where conduct element consists of a state of affairs rather than conduct. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – two charges of unlawful possession of prohibited weapon – power of the Supreme Court to make orders under s 334, Crimes Act 1900 – whether charges are back-up or related charges – whether s 334 requires causal link between offending and mental impairment – s 334 does not apply to charges.
Legislation Cited:	Crimes Act 1900 (ACT), ss 321, 334, 374, 375 Crimes (Sentencing) Act 2005 (ACT), s 7 Criminal Code 2002 (ACT), ss 11, 12, 13, 14, 15, 22, 28 Legislation Act 2001 (ACT), s 190 Magistrates Court Act 1930 (ACT), ss 90A, 90B Prohibited Weapons Act 1996 (ACT), ss 2B, 3, 4A, 5, Schedule 1, Dictionary Supreme Court Act 1933 (ACT), ss 68CA, 68D, 68E
Cases Cited:	He Kaw Teh v The Queen [1985] HCA 46, 157 CLR 523 Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23 Nelson v Heil [2013] ACTSC 11; 274 FLR 226 R v Klobucar (No 2) [2016] ACTSC 53 R v Klobucar (No 3) [2016] ACTSC 347 R v Martindale [1986] 1 WLR 1042 Walton v Gardiner [1993] HCA 77; 177 CLR 378
Texts Cited:	ACT Mental Health Review Committee, Legislative Assembly of the Australian Capital Territory, Balancing Rights (1990) Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 June 1994, 2026, 2257-8 (Terry Connolly, Attorney-General)
Parties:	Danny Klobucar (Applicant) The Queen (Respondent)
Representation:	Counsel Mr J Purnell SC (Applicant) Mr M Fernandez with Ms A Jamieson-Williams (Respondent)
Solicitors Sharman Robertson Lawyers (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCC 214 of 2014

Introduction

In February and March 2016, Danny Klobucar was tried for the murder of Miodrag Gajic, who died around 11.00 am on 1 January 2014. The jury…

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 Klobucar (No 4)

Details

AGLC: R v Klobucar (No 4) [2016] ACTSC 348
Case: [2016] ACTSC 348
Decision Date: 25 November 2016

CaseChat Overview and Summary

The case of R v Klobucar (No 4) involved the defendant, Klobucar, who was facing two charges of unlawful possession of a prohibited weapon. The matter was heard in the Supreme Court, where Klobucar sought a permanent stay of proceedings. This application followed a previous acquittal by reason of mental impairment in relation to a murder charge, which occurred on the same day as the possession charges. The Crown had declined to consent to the court entering special verdicts under section 321 of the Crimes Act 1900 or dismissing the orders under section 334 of the same Act. The central issue before the court was whether the Crown's conduct constituted an abuse of process or prosecutorial oppression, warranting a permanent stay of the proceedings.

The court examined whether the conduct of the Crown amounted to an abuse of process or prosecutorial oppression, which could justify a permanent stay of proceedings. Additionally, the court considered the application of section 28 of the Criminal Code 2002 to the possession charges, where the conduct element consists of a state of affairs rather than an act. The court also assessed the Crown's power to make orders under section 334 of the Crimes Act 1900, particularly whether the charges were back-up or related charges, and if a causal link between the offending and the mental impairment was required. The court ruled that section 334 does not apply to the charges in this case.

In its judgment, the court found that the Crown's conduct did not amount to an abuse of process or prosecutorial oppression. The court also determined that section 334 of the Crimes Act 1900 did not apply to the charges, as they were not back-up or related charges. Consequently, the application for a permanent stay of proceedings was refused. The court held that the possession charges were distinct from the murder charge and were not contingent upon the outcome of the latter. Furthermore, the court clarified that section 334 does not necessitate a causal link between the offending and the mental impairment.

The Supreme Court ordered that the application for a stay of proceedings in respect of the two charges of possession of a prohibited weapon (CC14/445 and CC14/446) was refused. The court's decision emphasised the distinction between the possession charges and the murder charge, and clarified the scope of section 334 of the Crimes Act 1900 in this context.

Orders

Orders of the court

The application for a stay of proceedings in respect of two charges of possession of a prohibited weapon (CC14/445 and CC14/446) is refused.

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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Citations

AGLC Citation

R v Klobucar (No 4) [2016] ACTSC 348

Most Recent Citation

R v Klobucar (No 5) [2016] ACTSC 383

Cases citing this decision · 5 of 5 shown

Nunn v KS
[2023] ACTMC 52

…22] ACTMC 24 DJ v R [2017] NSWCCA 319 DPP (NSW) v Sinton [2000] NSWSC 473 Jibran v R [2020] NSWCCA 86 R v Barker [2014] ACTSC 374 R v Klobucar (No 4) [2016] ACTSC 348 R v McMahon (No 2) [2017] ACTSC 299 R v Mehajer (No 2) [2023] NSWDC 151 R v Raymond (No 1) [2014] ACTSC 122…
Bakes v Holt
[2022] ACTMC 24

…22] ACTMC 24 DJ v R [2017] NSWCCA 319 DPP (NSW) v Sinton [2000] NSWSC 473 Jibran v R [2020] NSWCCA 86 R v Barker [2014] ACTSC 374 R v Klobucar (No 4) [2016] ACTSC 348 R v McMahon (No 2) [2017] ACTSC 299 R v Mehajer (No 2) [2023] NSWDC 151 R v Raymond (No 1) [2014] ACTSC 122…
R v Bonfield
[2021] ACTSC 362 Para 1

…ourt be satisfied that the charge is one that can be heard here. There is some limited learning on what a related offence is: see R v Klobucar (No 4) [2016] ACTSC 348; 316 FLR 1 at 13–14; [58]–[59]. There, the Court held that weapons, the possession of which constituted the purported transferred charges, were not s…
R v McMahon (No 2)
[2017] ACTSC 299 Para 1

…As Penfold J pointed out in R v Klobucar (No 4) [2016] ACTSC 348; 316 FLR 1 at 13; [58]:…
R v Klobucar (No 5)
[2016] ACTSC 383 Para 1

…s for this charge and the other prohibited weapons charge be permanently stayed. I refused that application on 25 November 2016 ( R v Klobucar (No 4) [2016] ACTSC 348). In the course of that decision, I noted that there was evidence on which to base a finding that the state of affairs aspect of the weapons offences…

View all 5 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Klobucar (No 3)
[2016] ACTSC 347 Para 1

…bucar’s attack on Mr McKean, and the burglary at the Lighthouse Pub, with his mental impairment (referred to at [48] to [51] in R v Klobucar (No 3) [2016] ACTSC 347). If it had been necessary (as to which see [66] to [73] below), Dr Carroll’s opinion would also have provided a basis for dismissing, by reference to…
R v Klobucar (No 2)
[2016] ACTSC 53 Para 1

…jic was killed. That period in custody was taken into account when I set a best estimate of sentence for the killing of Mr Gajic: R v Klobucar (No 2) [2016] ACTSC 53.…
Nelson v Heil
[2013] ACTSC 11 Para 1

…I also note in this context the detailed discussion of the operation of s 334 in Nelson v Heil [2013] ACTSC 11; 274 FLR 226 ( Nelson ). Refshauge J began his review of the history of the legislation (at [2]) by quoting a report to the ACT Legislative Assembly entitled Balancing Rights (1990), in which the Review C…
Walton v Gardiner
[1993] HCA 77 Para 1

…Counsel for Mr Klobucar referred me to Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 395-6, in which the majority (Mason CJ, Deane and Dawson JJ) said:…
Jago v District Court (NSW)
[1989] HCA 46 Para 1

…und (x) for the grant of a stay set out at [75] above is a reference to Gaudron J’s statement, made in Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23 ( Jago ) at 74 in the context of an application for a permanent stay of criminal proceedings due to delay, that:…
Doyle v The Commonwealth
[1985] HCA 46 Para 1

…conduct in relation to conduct that consists of a state of affairs. A possession offence may involve only a state of affairs ( He Kaw Teh v The Queen [1985] HCA 46, 157 CLR 523 at 564, Brennan J), and that seems to be the current case.…
He Kaw Teh v The Queen
[1985] HCA 43 Para 1

…tion to conduct that consists of a state of affairs. A possession offence may involve only a state of affairs ( He Kaw Teh v The Queen [1985] HCA 46, 157 CLR 523 at 564, Brennan J), and that seems to be the current case.…
[1986] 1 WLR 1042
[1986] 1 WLR 1042 Para 1

…in the Crown case, having regard to the clear evidence of his disordered mental state on 1 January 2014 (although I note the case of R v Martindale [1986] 1 WLR 1042 at 1044 as authority for the proposition that simply having forgotten about possessing something does not provide a defence).…

Legislation cited in this decision · 8

Crimes Act 1900 (ACT)
321, 334, 334(2)(b), 374, 375 6 mentions (from Para 1)
Prohibited Weapons Act 1996 (ACT)
2B, 3, 4A, 5 5 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
68CA, 68D, 68E 4 mentions
Magistrates Court Act 1930 (ACT)
90A, 90B 3 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
7 2 mentions (from Para 1)
Legislation Act 2001 (ACT)
190 2 mentions (from Para 1)
Crimes (Amendment) Act 1994 (ACT)
1 mention (from Para 1)
Mental Health Act 2015 (ACT)
1 mention