R v Nozhat - [2018] ACTSC 317

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Nozhat
Citation:	[2018] ACTSC 317
Hearing Date:	17 October 2018
DecisionDate:	14 November 2018
Before:	Burns J
Decision:	See [26]
Catchwords:	CRIMINAL LAW – Practice and Procedure – Application for a stay of proceedings – failure of the Crown to disclose material in a timely manner – trial proceedings vacated – whether the trial proceedings should be stayed pending costs paid to the accused as a result of the trial proceedings being vacated
Legislation Cited:	Criminal Code Act 1995 (Cth) s 307.1
Cases Cited:	R v Bui [2011] ACTSC 102; 5 ACTLR 230 R v Mosely (1992) 28 NSWLR 735 R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 532
Parties:	The Queen (Crown) Tamim Jamaal Nozhat (Accused)
Representation:	Counsel Mr P Bevilacqua (Crown) Mr C Smith SC and Mr A Karim (Accused)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Kingston Fox Lawyers (Accused)
File Number:	SCC 27 of 2018

BURNS J:

The applicant, Tamim Jamaal Nozhat, was charged on or about 6 December 2017 with one charge contrary to s 307.1 of the Criminal Code Act 1995 (Cth) alleging that between 16 May 2017 and 19 May 2017 he imported a commercial quantity of a border controlled drug, namely MDMA. This offence carries a maximum penalty of life imprisonment. He was arrested with regard to this matter on 5 December 2017 and has remained in custody since that time. He was committed for trial on 22 February 2018.

After two directions hearings before the Registrar of this Court, on 4 June 2018 Murrell CJ listed the matter for trial commencing 2 October 2018, with an estimate of 10 days. The matter was also listed for callover in the week preceding 2 October 2018. At the callover on 26 September 2018, Murrell CJ was advised that the parties wanted to engage in legal argument before the commencement of taking evidence; it was anticipated that this would require one to two days. Murrell CJ listed the matter for legal argument before myself on Wednesday and Thursday, 4 and 5 October 2018, with the trial otherwise to commence on 8 October 2018.

On Tuesday 2 October 2018 the matter again came before me on an issue concerning a subpoena. That issue was resolved by the parties, and junior counsel appearing for the applicant advised me that the legal argument that had been listed for 4 and 5 October would not now be required, but the parties hoped to conduct a brief Basha inquiry on 3 October 2018.

By an email from the office of the Commonwealth Director of Public Prosecutions at 12.38 pm on 3 October 2018, the Court was asked to make an order in chambers adjourning the proceedings until the morning of 4 October 2018. The reason given for the request was:

Due to outstanding disclosure, the defence have indicated that they will not be in a position to make applications in respect of the…

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 Nozhat

Details

AGLC: R v Nozhat [2018] ACTSC 317
Case: [2018] ACTSC 317
Decision Date: 14 November 2018

CaseChat Overview and Summary

The case of R v Nozhat involved the accused, Nozhat, who faced charges before the court. The dispute centred on the Crown's failure to disclose material in a timely manner, which led to the trial proceedings being vacated. This resulted in a subsequent application for a stay of proceedings pending the payment of costs incurred by the accused due to the vacating of the trial. The court was tasked with determining whether the proceedings should be stayed pending the payment of these costs.

The legal issues before the court included whether the failure to disclose material constituted a serious procedural breach warranting a stay of proceedings. Additionally, the court had to consider the appropriateness of staying the proceedings to enforce the payment of costs incurred by the accused as a result of the vacating of the trial proceedings. This involved a careful assessment of the principles surrounding the enforcement of costs and the implications of vacating trial proceedings due to procedural failures.

In addressing these issues, the court noted that the Crown's failure to disclose material in a timely manner was indeed a serious procedural breach. However, the court also considered the principle that vacating trial proceedings due to such breaches should not be used as leverage to enforce the payment of costs. The court determined that staying the proceedings to enforce the payment of costs was not warranted, as it could potentially undermine the integrity of the criminal justice system by allowing procedural breaches to be exploited for financial gain. The court ultimately decided that the proceedings should not be stayed pending the payment of costs.

Consequently, the court made orders that the trial proceedings should not be stayed pending the payment of costs incurred by the accused due to the vacating of the trial. This decision underscores the importance of maintaining the integrity of the criminal justice system and ensuring that procedural breaches do not lead to undue financial burdens on the accused.

Orders

Orders of the court

See [26]

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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