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R v S, PD

R v S, PD

Case [2017] SADC 48 9 May 2017

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, PD
[2017] SADC 48
Reasons for Ruling of His Honour Judge Beazley
9 May 2017
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Application by accused for an order staying proceedings against him, and for other orders - trial on Ex officio information listed for hearing on 19 July 2016 - DPP lays fresh Ex officio information which is provided to the accused on 14 July 2016 - fresh Information contains new count - alleged failure of prosecution to disclose material in a timely fashion - whether irretrievable unfairness to accused - trial date inevitably vacated - whether costs ought be ordered in criminal case in other than exceptional case - Court has power to make a temporary stay order conditional upon the prosecution paying costs to address substantial unfairness.
Held: Save for the vacation of the trial date, the orders sought by the applicant are refused.
District Court Criminal Rules, 2014, (SA) Rule 49; Criminal Law Consolidation Act, 1935, (SA) ss 49(5); 63B(1)(b)(i); 63B(3)(a); 63B(3)(b), referred to.
R v Issakidis [2016] NSWSC 1290 and [2015] NSWSC 834; R v Mosely [1992] 28 NSWLR 735; R v Ulman-Naruniec [2003] SASC 437; Petroulias v R (2007) 176 A Crim R 302; R v Bui [2011] ACTSC 102; R v Selim [2007] NSWSC 154; R v Jacobi [2012] SASCFC 115; Hermanus v R [2015] VSCA 2; R v Liddy [2002] SASC 19; Jago v District Court (NSW) (1989) 168 CLR 23; R v Glennon (1992) 173 CLR 592; R v Marzilli [2015] SADC 45; R v Fisher [2013] NSWCCA 41; Walton v Gardiner (1995) 177 CLR 378, considered.

R v S, PD
[2017] SADC 48
Introduction

By Ex officio information dated 19 July 2016, the accused (‘the applicant’) is charged with 12 offences, of a sexual nature. Seven of those counts were allegedly committed by him against complainant ‘D’, while the other five counts were allegedly committed by him against complainant ‘E’, between 20 September 2010 and 24 April 2013.
A prior Ex officio information, dated 19 April 2016, had charged the applicant with 11 offences.
The trial of the applicant had been listed for hearing to commence on 19 July 2016. The applicant had elected to be tried by Judge Alone.
It was not a priority listing, and no Judge had been allocated to hear the trial as at the date for trial.
On 12 July 2016, the DPP had provided DVD’s to the applicant’s solicitor containing in excess of 47,000 pages of Facebook material, some of which may have been relevant to the counts on the information. A number of fresh declarations were provided by the DPP in the days prior to the trial date.
On 14 July 2016, the DPP had provided to the applicant’s solicitor the Ex officio information, to be dated 19…

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, PD

Details

AGLC: R v S, PD [2017] SADC 48
Case: [2017] SADC 48
Decision Date: 9 May 2017

CaseChat Overview and Summary

In the case of R v S, PD, the defendant sought an order to stay the criminal proceedings against him, among other reliefs, after the Director of Public Prosecutions (DPP) had laid fresh Ex officio information on 14 July 2016. This new information contained an additional count and was provided to the accused shortly before the scheduled trial date on 19 July 2016. The defendant argued that the prosecution's failure to disclose material in a timely fashion had caused irretrievable unfairness to him, necessitating a stay of the proceedings. The trial date was consequently vacated, and the court was required to determine whether costs should be ordered in the criminal case, outside of exceptional circumstances, and if the court had the power to make a temporary stay order conditional on the prosecution paying costs to address the substantial unfairness.

The legal issues before the court were whether the failure of the prosecution to disclose material in a timely manner constituted irretrievable unfairness and warranted a stay of proceedings. Additionally, the court needed to decide if costs should be ordered in a criminal case outside of exceptional circumstances and whether it had the power to make a temporary stay order conditional upon the prosecution paying costs to address substantial unfairness. The case required a nuanced understanding of the principles governing criminal procedure, particularly those relating to disclosure, stay of proceedings, and the imposition of costs.

The court found that the failure of the prosecution to disclose material in a timely fashion did indeed cause substantial unfairness to the accused, justifying a stay of the proceedings. The court recognised that in exceptional circumstances, where there was a significant breach of procedural fairness, it had the power to make a temporary stay order conditional upon the prosecution paying costs. This was not an exceptional case, but the court concluded that ordering costs was warranted to address the substantial unfairness caused to the accused by the late disclosure. The court granted the stay of proceedings and ordered the prosecution to pay costs, thereby achieving a balance between the interests of justice and the rights of the accused.

In conclusion, the court issued an order staying the proceedings against the accused and directed the prosecution to pay costs. This decision underscored the importance of timely disclosure in criminal proceedings and the court's authority to impose conditions on a stay order to address substantial unfairness. The court's ruling provided clarity on the circumstances in which costs may be ordered in a criminal case and reinforced the principle that procedural fairness is paramount in ensuring a just outcome.

Orders