R v Seminara No. DCCRM-02-383 - [2003] SADC 56

R v Seminara
[2003] SADC 56
Judge Herriman
Criminal

By an application filed on 24 February 2003, the accused has sought a permanent stay of the information herein on grounds as follows:
“The persistent failure by the Director of Public Prosecutions to provide telephone records related to text messages sent by the alleged victim”.
By a cross‑application filed on 4 April 2003, the Director has sought an order that the accused’s application be struck out or dismissed upon the grounds that it was vexatious, frivolous or an abuse of process in that it did not identify circumstances “which could have the capacity to enliven the Court’s discretion to stay the proceedings”.
I heard both applications together and there follow my reasons for upholding the accused’s application.
In order to understand the issues, it is necessary that I recount the history of the matter.
It is common ground that the accused and the alleged victim, whom I will refer to as “M”, had been in a de facto relationship since 1998/9. It is not disputed that the relationship was a tempestuous one and was “on and off”. It was characterised by violence and, indeed, the accused has pleaded guilty to assault of M, occasioning her actual bodily harm, on the day on which it is also alleged he raped her. For his part, he says that she was also violent towards him, but she does not concede that.
There is then a direct conflict as to the status of their relationship as at the date of the alleged incident, 15 January 2002. On M’s account, she had terminated the relationship two weeks earlier and there had been no sexual contact between them in that time, albeit that she allowed there had been, and she had initiated, telephone contact between them, including the exchange of text messages.
On the accused’s account, they were still in a relationship on 15 January, although not living in the same house, and he was saving money for a unit in which they could live together.
Separately from this and shortly before the beginning of January 2002, there had been an incident following which both she and the accused had been arrested over allegations of assault against a third party. On the accused’s account, it had arisen out of a complaint made by M that the third party had indecently assaulted her. At all events, it was common ground that, as of 15 January, the accused and M were on bail in respect of this matter and, although there was no direct evidence of it, it would appear that one of the conditions of that bail was that they not contact each other. At a later time, each pleaded guilty to that offence.
The 15^th January 2002 was the accused’s birthday. On M’s account, given on 19 January 2002, she had seen him in the street some two days before and he had harassed her then and since with telephone and text messages. Early…

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.

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Details

Case: [2003] SADC 56
Decision Date: 11 April 2003

CaseChat Overview and Summary

The case of R v Seminara, which came before the South Australian District Court, involved an application by the accused for a permanent stay of proceedings due to the failure of the Director of Public Prosecutions to provide relevant telephone records. The accused argued that the absence of these records, which contained text messages between the accused and the alleged victim, had significantly prejudiced his ability to defend himself. The Director of Public Prosecutions cross-applied for the accused's application to be dismissed, arguing it was vexatious or an abuse of process. The court heard both applications and ultimately upheld the accused's application for a permanent stay. The court found that the investigating officer had been on notice of the significance of the text messages from the outset but failed to take any steps to obtain them for nearly seven months, by which time the relevant records had been destroyed. The court concluded that the loss of this evidence, which had the potential to be highly relevant to the accused's defence, was such that it would result in an unfair trial if the proceedings were to continue. The court dismissed the Director of Public Prosecutions' cross-application, finding that the accused's application for a stay was valid and should be granted in these exceptional circumstances.

Orders