R v S - [2005] TASSC 18

[2005] TASSC 18

CITATION: R v S [2005] TASSC 18

PARTIES:  R
  v
  S

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  191/2001
DELIVERED ON:  31 July 2002
DELIVERED AT:  Launceston
HEARING DATES:  9 - 12 July 2002
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Adjournment, stay of proceedings or order restraining proceedings - Stay of proceedings - Abuse of process - Delay in instituting proceedings - Whether the accused will be prejudiced or oppressed by the delay.

Jago v District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378, applied.
Aust Dig Criminal Law [703]

Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Joinder - Joint or separate trials - Generally - Discretion of trial judge to make orders - Severance of counts of indictment.

R v Randell [1999] TASSC 78, considered.
Criminal Code 1924 (Tas), s326.
Evidence Act2001 (Tas), ss97, 98(2)(a) and 101.
Aust Dig Criminal Law [725]

REPRESENTATION:

Counsel:
             Crown:  M A Stoddart
             Accused:  C C Waterstreet and M F Daly
Solicitors:
             Crown:  Director of Public Prosecutions
             Accused:  M F Daly

Judgment Number: [2005] TASSC 18
Number of Paragraphs: 21

Serial No 18/2005
File No 191/2001

THE QUEEN v S

ORAL RULING SLICER J

31 July 2002

S applies for a stay of proceedings in relation to 14 counts of an indictment which alleges acts of sexual impropriety involving four complainants said to have occurred during the period from January 1972 until December 1981.

In the event that the application is unsuccessful, in full or in part, he seeks, pursuant to the Criminal Code, s326, severance of certain counts and rulings in relation to evidence which may be led on any severed counts.

The parties relied on proofs of evidence which form part of the "Crown Papers" and the evidence of witnesses called by the Crown on the hearing of the various applications. Given my determination that the prosecution ought not be stayed and that the indictment ought be severed, with the consequence that there will be more than one trial, it is not appropriate that detailed reasons be published or that, except when essential, findings of credibility of witnesses not be made. Given that it will be necessary for me to conduct a second trial, I will publish these reasons to the parties and not make them publicly available until the end of the proceedings. The rules in relation to evidence are made at this stage of the proceedings and are subject to review, dependent on the conduct of each trial. The manner of cross-examination and the raising of particular issues might require a different determination. That possibility is further reason for the curtailment of these reasons since it is, at this stage, difficult to discern the various permutations which the evidence or conduct of the parties might create.

The indictment alleges 14 acts of sexual impropriety contrary to…

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 S

Details

AGLC: R v S [2005] TASSC 18
Case: [2005] TASSC 18
Decision Date: 31 July 2002

CaseChat Overview and Summary

In the Supreme Court of Tasmania, S applied for a stay of proceedings in relation to 14 counts of an indictment which allege acts of sexual impropriety involving four complainants said to have occurred from January 1972 until December 1981. The accused also sought severance of certain counts and rulings in relation to evidence that may be led on any severed counts. The court had to decide whether the accused would be prejudiced or oppressed by the delay in instituting proceedings and whether the evidence would be prejudicial to the accused's defence. The court found that the application for a stay of proceedings should be refused, as the delay did not necessarily make any trial unfair and the complainant could still challenge the accuracy and credibility of the accused. The court also found that counts 1 and 2 should be severed from the indictment and a separate trial ordered in relation to those counts, as the evidence of uncharged acts of sexual misconduct may prove overwhelming and preclude appropriate consideration of the matters encompassed in those counts. The evidence of the witness directly involved in the hearing of counts 3 - 14, including uncharged acts of sexual misconduct, may be led on the trial involving those counts, but the evidence of the witness T may not be led on the trial involving counts 3 - 14, but may be led on the trial involving counts 1 and 2. The evidence of the complainant described in counts 1 and 2 may not be led on the trial involving counts 3 - 14.

The court's reasoning was based on the provisions of the Criminal Code and the Evidence Act 2001, which provide for the severance of counts in an indictment if the accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment, or that for some other reason it is desirable to direct that he should be tried separately for any one or more crimes charged in the indictment. The court also considered the public interest in bringing persons suspected of committing crimes and the need to ensure the fair conduct of a trial and prevent oppression. The court found that the application for a stay of proceedings was not appropriate, as the accused could still receive a fair trial and meet the case as presented. The court also found that the evidence of the witness T and the complainant described in counts 1 and 2 may not be led on the trial involving counts 3 - 14, as their prejudicial effect would outweigh their probative value. The court's outcome was to refuse the application for a stay of proceedings and to order severance of counts 1 and 2 from the indictment and a separate trial in relation to those counts. The court also made rulings in relation to the evidence that may be led on the trials involving counts 3 - 14 and counts 1 and 2.

Orders