R v Mohi

Case [2000] SASC 384 8 November 2000

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R v MOHI
[2000] SASC 384

Criminal Jurisdiction (Reasons for Decision)

1................ MARTIN J........ The applicant, Raymond Mohi, was charged with Assist An Offender contrary to s 241(1) of the Criminal Law Consolidation Act 1935. He was presented for a joint trial with Brett Williams and Lawrence Hersbach who are charged with murder. The applicant was alleged to have assisted Williams and Hersbach after they had committed the murder. He sought a permanent stay of the prosecution. On 8 November 2000 I granted the application and ordered that the trial of the applicant be stayed until further order. I now set out my reasons for that decision.

Prior to the empanelling of the jury, objection was taken to the admissibility of two statements in narrative form that had been given by the applicant to police in February and March 1999. The objection was primarily on the basis that the statements were involuntary. The voir dire examination commenced with the calling of Detective Nigel Laity who gave evidence of the circumstances in which the statements had been obtained. Early in the cross-examination of Detective Laity, in view of some of his answers, I invited counsel for the Director of Public Prosecutions (“the Director”) to consider his position. After a short adjournment, counsel properly advised that he would not seek to lead evidence of the two statements.
Subsequently, counsel for the applicant applied for an order that the trial of the applicant be permanently stayed on the basis that to permit the prosecution to proceed would amount to an abuse of the processes of the court. In order to understand the basis of the application, it is necessary to set out details of the manner in which the investigating police officers dealt with the applicant and the response of the Director to the situation created by the investigating officers.
As a result of information received, police discovered the deceased’s body near Owen on 27 June 1999. It is the Crown case that Williams and Hersbach murdered the deceased during the early hours of Saturday 30 January 1999. Police inquiries commenced in February 1999. In the course of those inquiries information was received that the applicant was present when the deceased was murdered and that he had been involved in washing away the deceased’s blood at the scene of the murder. On 23 February 1999 the investigating officers attended at the applicant’s premises with the intention of speaking with him. At that time, notwithstanding their belief that the applicant had committed an offence during the aftermath of the crime of murder, the investigating officers had decided to treat him as a witness. They did not have any evidence that the applicant had been involved in the attack upon the deceased and they considered that he would be more value as a witness.
At the request of the police, the applicant accompanied them to the Christies Beach Police Station where he was interviewed and a statement in a narrative form was prepared. In response…

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 Mohi [2000] SASC 384
Case: [2000] SASC 384
Decision Date: 8 November 2000

CaseChat Overview and Summary

Raymond Mohi was charged with assisting an offender in relation to the murder of a deceased person. Mohi sought a permanent stay of the prosecution on the basis that to permit the prosecution to proceed would amount to an abuse of the processes of the court. The primary issue before the court was whether the prosecution of Mohi would amount to an abuse of process. In examining this issue, the court considered the circumstances in which Mohi was interviewed by the police, the assurances given to Mohi by the police, and the conduct of the Director of Public Prosecutions in relation to Mohi. The court found that the prosecution of Mohi would amount to an abuse of process due to the cumulative effect of the assurances given to Mohi by the police and the conduct of the Director through his officers. The court ordered a permanent stay of the prosecution of Mohi.

Orders