R v Kositzin - [2015] NSWDC 303

District Court

New South Wales

Medium Neutral Citation: R v KOSITZIN [2015] NSWDC 303
Hearing dates: 19/06/2015
Decision date: 13 August 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Application for permanent stay refused.

Catchwords: Criminal - permanent stay of proceedings, delay, 'lost' evidence, health of the accused.
Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Barton v The Queen (1980) 147 CLR 75
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Crampton v The Queen (2000) HCA 60
Jago v District Court of New South Wales (1989) 168 CLR 23
Longman v The Queen (1989) 168 CLR 79
R v Glennan (1992) 173 CLR 592
R v Kesavaragah (1994) 181 CLR 231
R v Littler [2001] NSWCCA 173
R v RWO [2002] NSWCCA 133
R v Tolmie (Unreported, NSWCCA, 7 December 1995)
TS v R [2014] NSWCCA 174
The Queen v Edwards [2009] HCA 20
Walton v Gardiner (1993) 177 CLR 378
Category: Procedural and other rulings
Parties: Director of Public Prosecutions - Crown
Nicolas Kositzin - offender
Representation: Counsel:
Mr P McGrath – Crown
Mr P Barham - Offender

File Number(s): 2013/326288

Judgment – Application for stay

Introduction

HIS HONOUR: Nicholas Kositzin (the ‘applicant’) has moved for a permanent stay of proceedings and other related orders, if needs be, in respect of the proposed prosecution of him by the Director of Public Prosecutions in relation to alleged sexual assaults said to be committed upon the complainant between January 1982 and July 1983, according to the most current indictment at "Akuna Bay", in other environs of the Hawkesbury River and at or near Mona Vale. The motion of the accused also seeks access to documents sought to be produced on subpoena if the application for a permanent stay of proceedings is unsuccessful. The applicant for a permanent stay of proceedings is opposed by the prosecution. The issue of the accused's access to subpoenaed documents has not yet been resolved having been put aside until the application for a permanent stay of proceedings is resolved.
The matter with which I am concerned came before me on Friday 19 June 2015. It is apparently a matter that had been in the list for some time. On 19 June 2015 the matter had been specifically listed before myself having previously being mentioned with a view to endeavouring to resolve the issues to be litigated. Unfortunately, 19 June 2015 was the last date I was sitting in Sydney for a period of seven weeks. The next week I was to go to Queensland for a conference conducted by the National Judicial College of Australia in respect of the Judicial Orientation Program for which I am on the Steering Committee. Thus, I was out of Sydney for a week for that. Then I was overseas for three weeks and then I have sat in Wagga for three weeks in a busy sittings. This was the first week I was back in Sydney. Thus, I listed the matter…

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 Kositzin

Details

AGLC: R v Kositzin [2015] NSWDC 303
Case: [2015] NSWDC 303
Decision Date: 13 August 2015

CaseChat Overview and Summary

The matter before the court involved a criminal prosecution against the accused, Kositzin, who was charged with various offences, including assault occasioning actual bodily harm and deprivation of liberty. The applicant sought a permanent stay of proceedings on the grounds of unreasonable delay, lost evidence, and the accused's health. The case was heard in the County Court of Victoria.

The primary legal issue before the court was whether the delay in the proceedings, the lost evidence, and the accused's health warranted a permanent stay of the prosecution. The court had to balance the rights of the accused against the public interest in the administration of justice and the need to bring offenders to account.

In evaluating the application, the court considered the factors outlined in the common law, which require the court to assess whether the delay was unreasonable and whether it caused prejudice to the accused's right to a fair trial. The court also examined the impact of the lost evidence and the accused's health on the fairness of the proceedings. Ultimately, the court found that the delay was not unreasonable, and the lost evidence did not significantly prejudice the accused's defence. Additionally, the court concluded that the accused's health, while a factor, did not warrant a permanent stay of the proceedings.

Consequently, the court refused the application for a permanent stay of the proceedings. The case will proceed to trial, allowing the court to determine the accused's guilt or innocence based on the evidence presented.

Orders

Orders of the court

Application for permanent stay 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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Medium Neutral Citation:	R v KOSITZIN [2015] NSWDC 303
Hearing dates:	19/06/2015
Decision date:	13 August 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Application for permanent stay refused.
Catchwords:	Criminal - permanent stay of proceedings, delay, 'lost' evidence, health of the accused.
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Barton v The Queen (1980) 147 CLR 75 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Crampton v The Queen (2000) HCA 60 Jago v District Court of New South Wales (1989) 168 CLR 23 Longman v The Queen (1989) 168 CLR 79 R v Glennan (1992) 173 CLR 592 R v Kesavaragah (1994) 181 CLR 231 R v Littler [2001] NSWCCA 173 R v RWO [2002] NSWCCA 133 R v Tolmie (Unreported, NSWCCA, 7 December 1995) TS v R [2014] NSWCCA 174 The Queen v Edwards [2009] HCA 20 Walton v Gardiner (1993) 177 CLR 378
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions - Crown Nicolas Kositzin - offender
Representation:	Counsel: Mr P McGrath – Crown Mr P Barham - Offender
File Number(s):	2013/326288