R v M, A

Case [2020] SADC 13


DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v M, A

[2020] SADC 13

Reasons for Ruling of His Honour Judge Beazley

14 February 2020

CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS

Accused charged on Information dated 8 June 2018 with one count of Indecent Assault, and one count of Unlawful Sexual Intercourse of the one complainant - each offence alleged to have been committed 35 years ago. Application by the accused for an order staying the criminal proceedings against him as an abuse of process - various grounds asserted including the total delay of 35 years between the date of the alleged offences and the date fixed for trial; the delay of 15 years before the alleged offences were first brought to the attention of the prosecuting authorities; the delay by the prosecuting authorities between 2000 and 2015; the intervening deaths of relevant witnesses; the loss or destruction of relevant documents and recordings; and other factors which, as a whole, are asserted to have caused the accused irretrievable unfairness - the effect of a forensic disadvantage direction pursuant to s.34CB of the Evidence Act.

Held:  Application by the accused is dismissed.

District Court Criminal Rules 2014 (SA) Rule 49; Criminal Law Consolidation Act 1935 (SA) ss 49(3) and 56; Evidence Act 1929 (SA) ss 34CB, 34KB, 34KC, 34KD and 34M, referred to.
Jago v District Court of NSW (1969) 168 CLR 23; Ridgeway v R (1995) 184 CLR 19; R v Perre [2019] SASCFC 100; Hermanus v R [2015] VSCA 2; R v Glennon (1992) 173 CLR 592; Batistatos v Roads & Traffic Authority of NSW (2006) 226 CLR 256; R v Jacobi [2012] SASCFC 115; R v B, P [2016] SASCFC 30; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1992) 177 CLR 378; R v Wagner (1993) 66 A Crim Rep 583; Sedmak v Police [2008] SASC 307; R v Issakidis [2016] NSWSC 1290; Gill v DPP (1992) 64 A Crim Rep 82; Police v Pakrou (2008) 103 SASR 124; The DPP v Shirvanian (1998) 44 NSWLR 129; R v Walton [1999] NSWCCA 452; R v Littler [2001] NSWCCA 173; Dupas v R [2010] HCA 20; Murphy v The Queen [1989] HCA 28; R v B, GN (2014) 121 SASR 43; R v Carroll [2002] HCA 55; R v H, GJ [2014] SASCFC 34; R v R, PA [2019] SASCFC 19; R v W, PK [2016] SASCFC 5; R v Swingler (1996) 1 V.R. 257; R v Cassebohm (2011) 109 SASR 465; R v Weygood [2020] SASC 7; Mullen v DPP [2020] SASC 10, considered.

R v M, A
[2020] SADC 13

Introduction

  1. By Information dated 8 June 2018, the accused (the applicant) is charged with two counts of a sexual nature against the complainant, to…

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R v M, A [2020] SADC 13
Case
[2020] SADC 13
Decision Date

CaseChat Overview and Summary

The accused was charged with one count of Indecent Assault and one count of Unlawful Sexual Intercourse, both offences allegedly committed against one complainant 35 years ago. The accused applied for an order staying the criminal proceedings against him, asserting that the proceedings constituted an abuse of process due to the significant delays and other factors that resulted in irretrievable unfairness. The primary legal issue before the court was whether the delay in bringing the charges and the resulting prejudice to the accused constituted an abuse of process warranting a stay of proceedings.

The court examined the various grounds put forward by the accused, including the 35-year delay between the alleged offences and the date fixed for trial, the 15-year delay before the offences were first reported to the prosecuting authorities, and the intervening deaths of relevant witnesses. The court also considered the effect of a forensic disadvantage direction under section 34CB of the Evidence Act. The court determined that the delay and the resulting prejudice to the accused, while significant, did not reach the threshold of an abuse of process that would warrant a stay of proceedings.

The court found that the accused had not demonstrated that the delay was so egregious or the prejudice so substantial as to constitute an abuse of process. The court held that while the delay was substantial and the prejudice real, it was not such as to render the proceedings an abuse of process. The application for a stay of proceedings was therefore dismissed.

No orders were made staying the criminal proceedings against the accused.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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