R v Sen - [2002] NSWSC 1204

CITATION: R v SEN [2002] NSWSC 1204

FILE NUMBER(S): SC 70047/02

HEARING DATE(S): 18/11/02 - 21/11/02, 27/11/02, 28/11/02

JUDGMENT DATE: 28 November 2002

PARTIES :

Regina
Orkun James Sen (Accused)

JUDGMENT OF: Dowd J at 1

COUNSEL : R Bonnici (Accused)
M M Cunneen (Crown)

SOLICITORS: J Rea ( Accused)
R Spence (Crown)

CATCHWORDS: Application for stay - abuse of process - self-defence - reasonable response

LEGISLATION CITED: Justices Act 1902

CASES CITED: Barton v The Queen (1980) 147 CLR 75
Jago v District Court of New South Wales (1989) 168 CLR 23
Von Einem (No. 1) (1991) 52 ACrimR 373
Williams v Spautz (1992) 174 CLR 509

DECISION: Application for permanent stay refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

Thursday 28 November 2002

70047/02 Regina v ORKUN JAMES SEN

JUDGMENT – ON THE APPLICATION FOR PERMANENT STAY BY THE ACCUSED

1 HIS HONOUR: This application for a permanent stay is brought by counsel, on behalf of the accused, that the charges in the indictment be permanently stayed.

2 The indictment alleged:

i) That the accused did murder Polrithy Pov on 27 February 2001,

that count of murder, in the circumstances of the present case, involves the alternative count of manslaughter.

ii) That the accused did maliciously wound Phealy Pov with intent to murder him;

iii) That he did on the same date, 27 February 2001, maliciously wound Phealy Pov.

3 The facts giving rise to the proceedings as dealt with in the Crown statement of issues are, briefly, that at about 6.15pm on 27 February 2001, a bakery owned and operated by the deceased and his brother and sometimes their mother, opened. There was a previous history of dispute between the parties concerning the bakery operating hours.

4 It is alleged that the deceased's mother saw the accused scratching the paintwork of her car and she told her sons. Phealy Pov went to the accused's unit, which is located above the bakery, and remonstrated with the accused over the damage to the vehicle. A fist fight occurred which was witnessed by a delivery driver, Peter Steiner, who was a regular deliverer of flour products to the bakery.

5 Steiner told the deceased what was happening upstairs and the deceased was seen to run from the shop, taking with him a small backpack with an unknown object which was narrow and measured about 50 centimetres in length.

6 Phealy Pov was engaged in a brief fight with the accused outside the unit which resulted in injury to Phealy Pov, causing his head to bleed.

7 The deceased was running up the stairs and the accused ran into his unit pursued by the deceased and Phealy Pov, who said he didn't see his brother carrying anything, nor did he see him with a backpack. He said as soon as the deceased ran into the unit the accused picked up a knife. He said…

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 Sen

Details

AGLC: R v Sen [2002] NSWSC 1204
Case: [2002] NSWSC 1204
Decision Date: 28 November 2002

CaseChat Overview and Summary

The case involved the respondent, Sen, who was facing charges of murder and attempted murder. The respondent applied for a stay of the proceedings on the grounds that the prosecution had abused the process of the court and that his actions were in self-defence and a reasonable response to the circumstances. The application was heard in the Supreme Court of New South Wales.

The court was required to determine whether the respondent's application for a stay of proceedings was justified. The primary legal issue was whether the prosecution had acted improperly in bringing the charges against the respondent. The court also needed to consider whether the respondent's actions were a reasonable response to the circumstances and whether they amounted to self-defence. The court examined the evidence and arguments presented by both parties to determine the merits of the application.

The court found that the prosecution had not acted improperly in bringing the charges against the respondent. The court also found that the respondent's actions were not a reasonable response to the circumstances and did not amount to self-defence. The court rejected the respondent's application for a stay of proceedings and ordered that the matter proceed to trial. The court emphasised the importance of the principle that the use of lethal force is only justified in extreme circumstances where there is an immediate threat to life or serious injury.

The court ordered that the respondent's application for a stay of proceedings be dismissed and that the matter proceed to trial. The respondent was directed to appear in court on a specified date to answer the charges against him. The court also made orders for the preservation of evidence and the disclosure of material to the respondent. The case highlights the importance of the principles of self-defence and the reasonable use of force in criminal cases and the need for the court to carefully consider the evidence and arguments presented by both parties.

Orders