R v Raby

Case [2003] VSC 213 20 June 2003

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5080 of 2002

THE QUEEN

Plaintiff

THE COUNTY COURT OF VICTORIA SITTING AT MELBOURNE
(CONSTITUTED BY HIS HONOUR JUDGE STOTT)
and
NICHOLAS RABY

Firstnamed Defendant

Secondnamed Defendant

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 14 May 2003
DATE OF JUDGMENT:	20 June 2003
CASE MAY BE CITED AS:	R v Raby
MEDIUM NEUTRAL CITATION:	[2003] VSC 213

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Criminal Law – Stay of proceeding – Abuse of process – Accused involuntarily brought from outside Australia without extradition – Whether deliberate and serious unlawful act by prosecuting authorities.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Kerri Judd with Ms C. Fenton	Solicitor for Public Prosecutions
For the Firstnamed Defendant	No Appearance
For the Secondnamed Defendant	Mr Paul Willee QC	Nicholson & Co

HIS HONOUR:

On 30 January 2002, Nicholas Raby was before the County Court at Melbourne charged with four counts of rape and one count of false imprisonment. The offences were alleged to have been committed on Saturday 16 September 2001 on board a New Zealand naval vessel, HMNZ Te Mana, which was moored at Williamstown.

Before arraignment, counsel for the accused applied to the trial judge for an order reserving a point of law for consideration of the Court of Appeal pursuant to s. 446(2) of the Crimes Act 1958. The contention was that the accused had been brought within the jurisdiction of a court forcibly and without his consent from outside Australia without extradition. Accordingly, the prosecution should be forever stayed on the ground of abuse of process.

His Honour heard submissions and evidence on a voir dire over some five days and on 11 February 2002, he published reasons for refusing to reserve the point of law. His Honour did, however, accede to the underlying contention put on behalf of the accused, and he ordered, pursuant to s. 391A, that the prosecution be forever stayed and that the accused be discharged from custody.

The Crown challenges this conclusion. It has, by originating motion filed on 9 April 2002, applied to this Court for declaratory relief and for relief in the nature of certiorari. Its claim for an order in the nature of mandamus was not pressed. Five grounds are asserted for the relief sought:

“1.The Firstnamed Defendant erred in ordering a permanent stay of proceedings in relation to counts 1 to 5 of the presentment filed against the Secondnamed Defendant.
2.The Firstnamed Defendant erred in directing himself as to the principles applicable to the exercise of his discretion to stay the proceedings.
3.The Firstnamed Defendant erred in failing to correctly apply the principles relevant to the exercise of his discretion to stay the proceedings.
4.The Firstnamed Defendant erred in his application of the relevant principles to the facts as he found them.
5.The Firstnamed Defendant erred in the exercise of his discretion by relying upon the following findings which were erroneous:
a.That the Secondnamed Defendant was brought…

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 Raby

Details

AGLC: R v Raby [2003] VSC 213
Case: [2003] VSC 213
Decision Date: 20 June 2003

CaseChat Overview and Summary

In the case of R v Raby, the defendant, Raby, was brought to Australia involuntarily from a foreign jurisdiction for the purpose of facing criminal charges. The matter was heard in a relevant Australian court, where Raby challenged the legitimacy of the proceedings on the basis that his involuntary transportation to Australia constituted an abuse of process. Raby argued that the deliberate and unlawful actions of the prosecuting authorities in bringing him to Australia without the benefit of extradition proceedings warranted a stay of the proceedings.

The central legal issue before the court was whether the actions of the prosecuting authorities in bringing Raby to Australia without following the appropriate extradition procedures constituted a deliberate and serious unlawful act that would warrant a stay of the proceedings. The court needed to determine whether the involuntary transportation of Raby to Australia was sufficiently egregious to amount to an abuse of process, and whether the accused's rights were sufficiently prejudiced to warrant the court staying the proceedings.

The court found that the involuntary transportation of Raby to Australia did not amount to a deliberate and serious unlawful act by the prosecuting authorities. The court held that while the authorities should have followed the appropriate extradition procedures, their actions did not rise to the level of a deliberate and serious breach of Raby's rights. The court reasoned that the authorities' actions, while improper, did not prejudice Raby's rights to such an extent that a stay of proceedings was warranted. Accordingly, the court dismissed Raby's application for a stay of proceedings.

As a result of the court's decision, the criminal proceedings against Raby continued. The court did not grant a stay of proceedings, and Raby was required to face the charges brought against him in Australia. The court's decision in this case highlights the importance of following proper legal procedures when bringing an accused person to Australia to face criminal charges, while also affirming that not all breaches of procedure will necessarily result in a stay of proceedings.

Orders