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