R v Roy

[2023] ACTSC 174

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Roy

Citation:

[2023] ACTSC 174

Hearing Date:

16 June 2023

DecisionDate:

11 July 2023

Before:

McCallum CJ

Decision:

Stand the matter over to 9 August 2023 at 9:30am before McCallum CJ to hear argument, if any, as to the quantum to be inserted into order 1(a) in the application in   proceedings dated 25 May 2023 and to make orders.

Catchwords:

CRIMINAL LAW – APPLICATION – application by accused for conditional temporary stay of criminal proceedings – where legal costs incurred unnecessarily as a result of delays in preparation of prosecution brief and changes in tack in prosecution case – whether wasted costs reflect the usual vicissitudes of defending criminal proceedings

Legislation Cited:

Constitution (Cth) s 51(v)

Crimes Act 1900 (ACT) s 64A

Criminal Code Act 1995 (Cth) ss 474.22, 475.1B(1)

Cases Cited:

DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau [2023] ACTSC 22

R v Bui [2011] ACTSC 102; 5 ACTLR 230

R v Nozhat [2018] ACTSC 317

Texts Cited:

Practice Direction Criminal 1, Adult Criminal Matters (ACT Magistrates Court, 1 January 2020)

Parties:

The King ( Crown)

Richard James Roy ( Accused)

Representation:

Counsel

G Lewer with C Atkhar ( Crown)

J Pappas with S Howell ( Accused)

Solicitors

Commonwealth Director of Public Prosecutions ( Crown)

Hugo Law Group ( Accused)

File Number:

SCC 117 of 2022

McCALLUM CJ:

1. Richard Roy stands charged with 90 child sexual and pornography offences. The charges are very serious.  If found guilty of even some, Mr Roy will very likely be sentenced to a term of imprisonment.  If found guilty of all of the charges, the sentence will likely be very lengthy.

1. The measure of fairness of the process by which he is put to trial in those circumstances is not to be gauged by reference to the abhorrent nature of the allegations against him or even the apparent strength of the Crown case.  Like every accused facing trial in this country, he is entitled to be put to trial by a process that enables him to know the allegations against him, to brief counsel of his choice and to make forensic decisions based on the way in which the prosecution choses to present its case. 

1. The prosecuting authority in the present matter is the Commonwealth Director of Public Prosecutions (CDPP).  Mr Roy contends that a series of delays and changes in tack on the part of the CDPP has resulted in his wasting legal costs on unnecessary appearances and forensic investigations later rendered useless or less helpful by decisions of the prosecutor. 

1. The Court has no power to order the prosecution to meet those costs.  The most effective remedy recognised at law (assuming the complaint is made good) is to grant a temporary stay of the prosecution until the wasted costs or some compensation therefor is paid by the CDPP.  That is the application now brought by Mr Roy. 

1. By application in proceeding filed 25…