R v Rushton - [2004] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RUSHTON
Reasons for Ruling of His Honour Judge Smith
20 August 2004
CRIMINAL LAW
Criminal law procedure - Rule 8 application - no power to lay ex-officio indictment - dismissed.
Criminal Law Consolidation Act 1935 s21, 47A, referred to.
R v Alice Wai Yee Liew Unreported, DCSA, J Vanstone, 2.12.02; Kolalich v Director of Public Prosecutions for the State of New South Wales (1991) 173 CLR 222 ; R v O’Neil (1989) 53 SASR 1, considered.

CRIMINAL LAW
Abuse of process - permanent stay application - only excercised in exceptional cases - fairness to the accused - balancing interests - weighing process of all factors - no unfairness so as to prejudice the trial - application dismissed.
Jago v The District Court of New South Wales (1989) 168 CLR 23; Williams v Spautz (1991-1992) 174 CLR 509; Maevao v Department of Labour (1980) 1 NZLR 464; Walton v Dardiner (1992-1993) 177 CLR 378; R v Ulman-Naruniec [2003] SASC 437; R v Bunting & Others (No 2) [2003] SASC 250, considered.

R v RUSHTON
[2004] SADC 114
Introduction

The defendant is charged on an ex officio indictment with the following offences:
First Count
Wounding with Intent to do Grievous Bodily Harm. (Section 21 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Michael John Rushton on the 22^nd day of December 2001 at Holden Hill, unlawfully and maliciously wounded Edward Charles Williams, with intent to do him grievous bodily harm.
Second Count
Threatening a Person with a Firearm. (Section 47A of the Criminal Law Consolidation Act 1935)
Michael John Rushton on the 22^nd day of December 2001 at Holden Hill, without lawful excuse, threatened Edward Charles Williams with a firearm.
In this application the defendant applies to quash the above ex officio indictment; or alternatively to stay the trial on the indictment until there has been a committal hearing.
I turn to the history of this matter.
History
On the 8^th October 2002 in the Holden Hill Magistrates Court the defendant, Michael John Rushton, was charged with attempted murder. He was granted bail. There followed a number of adjournments during which time negotiations took place. Then on the 8^th May 2003 the Director of Public Prosecutions (DPP) filed a fresh Information alleging the offence Wounding with Intent to do Grievous Bodily Harm. There following several more adjournments. Then on the 23^rd June 2003 Mr Grasso SM granted an application by the defence to cross-examine witnesses Williams, Wanganeen and Power. The committal hearing was adjourned to 26^th September 2003 to enable this to be done. Power was the only witness to attend court. He gave evidence. The hearing was adjourned to 28^th October 2003 to set a date for a further hearing. The Magistrate ordered that the witnesses Williams and Wanganeen file affidavits explaining their failure to attend. The affidavits which were sworn on the 27^th

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 Rushton

Details

AGLC: R v Rushton [2004] SADC 114
Case: [2004] SADC 114
Decision Date: 20 August 2004

CaseChat Overview and Summary

The case of R v Rushton involved Michael John Rushton, who was charged with wounding with intent to do grievous bodily harm and threatening a person with a firearm. The matter was initially brought before the Holden Hill Magistrates Court, but the defendant sought to quash the ex officio indictment filed by the Director of Public Prosecutions (DPP) in the District Court of South Australia or, alternatively, to stay the trial on the indictment until a committal hearing was conducted. The defendant argued that the DPP lacked the power to lay an ex officio indictment and that the laying of such an indictment amounted to an abuse of process.

The court considered the legal issues, starting with the DPP's power to lay an ex officio indictment. The defendant's counsel referred to the decision in R v Alice Wai Yee Liew, which established that the DPP has the power to lay ex officio informations. The court found that the DPP's power to lay an ex officio indictment was not restricted by the magistrate's decision to dismiss the original information.

The court then turned to the application to stay the proceedings as an abuse of process. The court noted that the power to stay proceedings is discretionary and is only exercised in exceptional cases to prevent an abuse of the court's processes. The court considered various factors, including fairness to the accused, the legitimate public interest in the disposition of charges of serious offences, and the need to maintain public confidence in the administration of justice.

After weighing the various factors, the court found that the application did not demonstrate an unfairness that would require a stay of the proceedings. The court concluded that the interests of justice demanded that the matter proceed, albeit by way of an ex officio indictment. The court ordered the DPP to pay the defendant's costs incurred due to the aborted committal hearing and the delay. The court declined to order a committal hearing or require further explanation of the witnesses' failure to attend the Holden Hill Magistrates Court.

The court dismissed the application and suggested setting a date as early as possible for a Basha inquiry. This would provide the defendant with an opportunity to uncover any fatal flaws in the prosecution case and to argue again for a stay if necessary. The court found that the safeguards available in a Basha inquiry would alleviate any unfairness, and the interests of justice required the matter to proceed.

Orders