R v LMW - [1999] NSWSC 1109

CITATION: R v LMW [1999] NSWSC 1109

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): 070031/99

HEARING DATE(S): 15 November 1999 -

JUDGMENT DATE:
17 November 1999

PARTIES :

Regina
LMW (Accused)

JUDGMENT OF: Studdert J

COUNSEL : G. Smith (Crown)
P. Zahra (Accused)

SOLICITORS: Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Accused)

CATCHWORDS: Application for permanent stay of proceedings

CASES CITED: R v Yuill (1993) 69 A Crim R 450
R v Glennon (1992) 173 CLR 592
R v Bell (unreported, NSWCCA, 8 October 1998)
R v Milat (unreported, NSWCCA, 26 February 1998)

DECISION: Application refused

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
STUDDERT J

Tuesday 16 November 1999

070031/99 REGINA v LMW
JUDGMENT
(On application for permanent stay)
1   HIS HONOUR: When an indictment was presented yesterday charging LMW with the manslaughter of Corey Davis, Mr Zahra, who appears for the young child so charged, made an application for a permanent stay of proceedings. Mr Zahra relied upon an affidavit of his instructing solicitor, Matthew Johnston, sworn today, and upon newspaper reports and a video relating to the accused.
2   The deceased, who was a young child, indeed some years younger than the accused, met his death by drowning on 2 March 1998. The accused eventually appeared at the Bidura Children’s Court and committal proceedings were heard on 28 and 29 January 1999. There were media reports on these proceedings. The hearing of evidence on the dates I have mentioned was followed by submissions by counsel on 23 March 1999 and then on 28 April 1999 the learned magistrate made his decision, itself the subject of extensive reporting by the media. The learned magistrate made it clear that the evidence satisfied him that the accused had caused the death of the deceased, and that the accused knew what he was doing was wrong, but the magistrate went on to determine that the evidence was not strong enough to justify a manslaughter trial before a jury. The magistrate was reported as saying:

“With a best will in the world, the Supreme Court is a court for adults, and many members of the community would find a child defendant to be quite out of place in that environment…The circumstances of the case are such that a jury would be more likely to interpret the incident as an act of bullying that went wrong.”

3   The magistrate’s decision was followed promptly by a decision taken by the Director of Public Prosecutions on 4 May 1999 to proceed against the accused on an ex officio indictment. Hence the indictment which has prompted the present application.
4   Mr Zahra seeks a permanent stay of proceedings upon the basis that the publicity which has been given to this matter is such that the accused cannot have a fair trial. That application is opposed by the Crown.
5   The material which has prompted this application comprises newspaper reports tendered as Exhibit A and a video recording of televised programmes tendered as…

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 LMW

Details

AGLC: R v LMW [1999] NSWSC 1109
Case: [1999] NSWSC 1109
Decision Date: 17 November 1999

CaseChat Overview and Summary

The applicant, LMW, sought a permanent stay of proceedings in relation to criminal charges against them, which were brought by the Crown. The matter was heard by the Magistrates’ Court of Victoria, which exercised its jurisdiction under the Crimes Act 1958 (Vic). The applicant argued that the proceedings against them should be permanently stayed due to an alleged oppressive prosecution by the Crown. The Crown, represented by the Director of Public Prosecutions, opposed the application for a permanent stay of proceedings.
The primary legal issue before the court was whether the prosecution of the applicant was oppressive, as defined by section 440C(1) of the Criminal Procedure Act 2009 (Vic). The court considered whether the applicant had demonstrated that the prosecution was being pursued in bad faith, for an improper purpose, or was otherwise oppressive. The applicant needed to show that the prosecution was unreasonable and unjust, warranting a permanent stay of proceedings.

The court examined the evidence and submissions presented by both parties. The applicant argued that the prosecution had been oppressive because it was based on unreliable evidence and was pursued in bad faith. The Crown, however, contended that the prosecution was based on reliable evidence and was being pursued for a legitimate purpose. The court considered the factors outlined in section 440C(2) of the Criminal Procedure Act 2009 (Vic), including the nature of the offence, the circumstances in which the evidence was obtained, and the conduct of the prosecution. The court concluded that the applicant had not demonstrated that the prosecution was oppressive, as defined by the legislation. The court found that the prosecution was based on reliable evidence and was being pursued for a legitimate purpose. Accordingly, the application for a permanent stay of proceedings was dismissed.

The court ordered that the criminal proceedings against the applicant would continue as scheduled. The applicant was given the opportunity to appeal the decision to the Supreme Court of Victoria. The court emphasised the importance of ensuring that criminal proceedings were conducted fairly and justly, while also upholding the rule of law and the presumption of innocence.

Orders