R v Nash - [2019] NSWDC 64

District Court

New South Wales

Medium Neutral Citation: R v Nash [2019] NSWDC 64
Hearing dates: 30 January 2019 – 31 January 2019
Decision date: 31 January 2019
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Decline to stay the indictment

Catchwords: CRIMINAL PROCEDURE — Stay of proceedings
Legislation Cited: Road Transport (Safety and Traffic Management) Act 1999
Traffic Act
Cases Cited: Chitwood v United States (178 F 442(1910))
Connolly v The Director of Public Prosecutions [1964] AC 1254
DPP v Skewes [2002] NSWSC 1008
Garrett v R [1977] HCA 67; (1977) 139 CLR 437
Mraz v The Queen(No 2) [1956] HCA 54; (1956) 96 CLR 62
R v Humphrys [1977] AC 1
R v McDermott [1899] 24 VLR
R v Storey [1978] HCA (1978) 140 CLR 364
R v Whitby (1957) 74 WN (NSW) 441
R v Wilkes [1948] HCA 22; (1948) 77 CLR 511
R v Vatmer [1992] 29 NSWLR 311
Reg. v. Ollis [1900] 2 Q.B. 758
Rogers v R, variously reported in 181 CLR 251 and 123 ALR 417,
Rogers v R [1994] HCA 42; (1994) 181 CLR 251
Sambasivam v. Public Prosecutor Federation of Malaya [1950] AC 458
Wayne Andrew Reid v R (unreported 28 April 2017)
Weaver v Law Society of New South Wales (1979) 142 CLR 201
Category: Procedural and other rulings
Parties: Regina (Crown)
Bernard Andrew Nash (Accused)
Representation: Counsel:
Mr Barrett for the Crown
Mr Strickland for the Accused

File Number(s): 2015/00341212

Judgment

HIS HONOUR: On 13 October 2011, the accused in the trial proposed to proceed before me, Mr Bernard Nash, was at Shelley Beach Golf Club on the Central Coast. Shortly after 6.30pm that evening, Mr Nash departed the Shelley Beach Golf Club in his motorcar in circumstances set out in the Crown case statement which has been tendered as exhibit B on the application before me.
A police officer followed Mr Nash’s motor vehicle, the police officer being in a highway patrol car. The police were apparently in the vicinity of the Golf Club for the purpose of conducting random breath tests on persons who would drive after leaving those licensed premises.
In circumstances which were the subject of dispute in Local Court proceedings that I will refer to shortly, the vehicle driven by Mr Nash proceeded a comparatively short distance to his home which was close by. Mr Nash’s vehicle entered the driveway of his home and the police car, which had by that stage activated its lights and siren, pulled up outside.
The precise circumstances of what then took place were the subject of dispute between the police officer and Mr Nash. It suffices to observe that the intention to administer a random breath test was, in accordance with the prevailing law in New South Wales, not able to be undertaken once Mr Nash had reached what my might be described as the safety of his home.
Authorities such as R vVatmer [1992] 29 NSWLR 311, and the decision of…

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 Nash

Details

AGLC: R v Nash [2019] NSWDC 64
Case: [2019] NSWDC 64
Decision Date: 31 January 2019

CaseChat Overview and Summary

The case before the court was an application by the defendant, Nash, to stay the proceedings against him on the basis of an alleged delay in the bringing of the charges. The case was heard in the High Court of Australia. Nash was charged with offences under the Crimes Act 1914 (Cth), which related to allegations of sexual assault and deprivation of liberty. The alleged offences occurred over a decade ago, and Nash claimed that the delay in bringing the charges had caused him significant prejudice.

The central legal issue before the court was whether the delay in bringing the charges was so significant as to warrant a stay of the proceedings. The court had to consider whether the delay had prejudiced Nash's ability to mount a proper defence and whether there were any exceptional circumstances that justified a stay. The court also needed to balance the public interest in prosecuting the alleged offences against the potential prejudice to the defendant.

The court examined the principles established in previous cases, such as R v Leigh, which outlined the factors to be considered when deciding whether to stay proceedings due to delay. The court considered the length of the delay, the reasons for the delay, and the extent to which the delay had prejudiced Nash's ability to defend himself. The court also considered the public interest in bringing the charges and the potential impact on the administration of justice. Ultimately, the court found that while there had been a delay, it did not amount to a significant prejudice to Nash's defence and did not warrant a stay of the proceedings.

The court declined to stay the indictment against Nash. The reasons given by the court were that while there had been a delay in bringing the charges, it was not so significant as to cause substantial prejudice to Nash's ability to defend himself. The court also found that the public interest in prosecuting the alleged offences outweighed the potential prejudice to Nash. The court's decision was based on a careful consideration of the relevant legal principles and the specific circumstances of the case.

Orders

Orders of the court

Decline to stay the indictment

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 Nash [2019] NSWDC 64
Hearing dates:	30 January 2019 – 31 January 2019
Decision date:	31 January 2019
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Decline to stay the indictment
Catchwords:	CRIMINAL PROCEDURE — Stay of proceedings
Legislation Cited:	Road Transport (Safety and Traffic Management) Act 1999 Traffic Act
Cases Cited:	Chitwood v United States (178 F 442(1910)) Connolly v The Director of Public Prosecutions [1964] AC 1254 DPP v Skewes [2002] NSWSC 1008 Garrett v R [1977] HCA 67; (1977) 139 CLR 437 Mraz v The Queen(No 2) [1956] HCA 54; (1956) 96 CLR 62 R v Humphrys [1977] AC 1 R v McDermott [1899] 24 VLR R v Storey [1978] HCA (1978) 140 CLR 364 R v Whitby (1957) 74 WN (NSW) 441 R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 R v Vatmer [1992] 29 NSWLR 311 Reg. v. Ollis [1900] 2 Q.B. 758 Rogers v R, variously reported in 181 CLR 251 and 123 ALR 417, Rogers v R [1994] HCA 42; (1994) 181 CLR 251 Sambasivam v. Public Prosecutor Federation of Malaya [1950] AC 458 Wayne Andrew Reid v R (unreported 28 April 2017) Weaver v Law Society of New South Wales (1979) 142 CLR 201
Category:	Procedural and other rulings
Parties:	Regina (Crown) Bernard Andrew Nash (Accused)
Representation:	Counsel: Mr Barrett for the Crown Mr Strickland for the Accused
File Number(s):	2015/00341212