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.

The indictment also alleged:
ii) That the accused did maliciously wound Phealy Pov with intent to murder him;

and an alternative count to that count:
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 that his brother was not armed.

8 During the fight involving all three men, the deceased received injuries which shortly became fatal. Phealy Pov also received three stab wounds. Phealy pulled his brother out of the unit and the accused, thereupon, shut the door.

9 When police arrived at the unit, the accused said:

"I used that knife", pointing to a knife on the table, "… they had a gun, I protected myself".

At a later stage he mentioned a machete to the police.

10 The accused's girlfriend, Helene Chapman, said that she was awakened by an argument at the door; that she saw two males from the bakery downstairs forcing their way into the unit and that one of them had a gun in his hand and was pointing it at the accused; and that the other man grabbed the accused's pool cue case and was swinging it at the accused, who was trying to fend it off and protect himself. She then phoned police.

11 Inside the unit, an imitation toy gun resembling an automatic pistol, a backpack and the knife used by the accused were found, a machete was found outside the unit.

12 The issues in these proceedings, largely, were almost entirely related to self-defence. There is no issue that the accused caused the wounds that brought about the death of Polrithy Pov, as there is no issue as to the injuries to Phealy Pov having been caused by the accused. The issue is primarily one of self-defence and possibly defence of another, namely Ms Chapman.

13 The Crown case, on this application, is that there are conflicts of fact to be resolved by the jury which are relevant to the issue of whether the conduct of the accused was a reasonable response and which would entitle him to an acquittal, or whether he should be found guilty of manslaughter.

14 Self-defence has been the subject of legislation which now covers these proceedings, being proceedings commenced after the commencement of that Act.

15 The issues that now arise for the jury are whether the person accused believed that the acts that he carried out were necessary to defend himself or some other person and, additionally, that what the accused did was a reasonable response in the circumstance, as he perceived them.

16 Self-defence is, of course, not a defence as such. It is the duty of the Crown to prove beyond reasonable doubt that the accused's act was not done by the accused in self-defence. The Crown may either prove that the accused did not believe at the time of the stabbing, in this case, it was necessary to do what the accused did to defend himself, or, that it is reasonably possible that the accused did have such a belief but, nonetheless, the stabbing was not a reasonable response in the circumstances as he perceived them.

17 In the case of a count of murder, a jury has to be satisfied beyond reasonable doubt that force was intentionally or recklessly used, causing death. The Crown must satisfy the jury, beyond a reasonable doubt, that the conduct of the accused was not a reasonable response in the circumstances, as the accused perceived them, because the use of the force was excessive or otherwise unreasonable.

18 There is no issue between the submissions both on the count and on behalf of the accused and the Crown, that the court has a power to stay proceedings in appropriate cases, as I will shortly detail.

19 The case mounted on behalf of the accused is, in short, that because of the evidence conceded by the Crown, the Crown case will require that the evidence of Phealy Pov be accepted by the jury.

20 It is put in support of this application that Phealy Pov was in part lying because of the evidence which he has given in contradiction to his statement.

21 I have had tendered before me the statements of Phealy Pov, Steiner (the witness who observed the fight on the landing) and various other witnesses but, in addition, have been referred to the evidence given in the committal proceedings in May. In those proceedings Phealy Pov said that his brother did not have a weapon, nor did he, until he went back down to get the weapon after his brother had been stabbed by the accused.

22 He said in his evidence that he did not wield the cue case at all, notwithstanding the fact that there is no issue that the cue case bears two of his fingerprints.

23 The evidence of the witness, Steiner, describing the deceased as carrying a long thin implement which he thought could have been a knife, there being no other such implement found in the flat upstairs or outside, is in contradiction with the evidence of Phealy Pov who said it was he that obtained the knife after his brother had been injured and had fallen to the ground.

24 There was also evidence of a phone call to triple 0 by the accused's friend, Ms Chapman, which was made after the injuries to the deceased and Phealy Pov and at the time when Phealy Pov was outside the flat endeavouring to enter the premises. An Asian voice calling out can be heard on the police tape together with a person speaking in English appearing to address that person.

25 At that stage, the witness, Ms Chapman, did not mention that a gun had been produced nor did she mention any machete. She said that she was in bed when the men entered her premises.

26 The primary case which is brought on behalf of the accused is that, since the Crown must not only prove the acts causing death but must also prove, to the same standard, that is beyond reasonable doubt that there is no defence of self-defence able, the Crown cannot, on the evidence, discharge the onus of proof and that the bringing of proceedings is an abuse of process.

27 Initially, it was also put that submissions were made in respect of the committal proceedings and the finding of the bill by the Director of Public Prosecutions. It was conceded by counsel that, in relation to these proceedings, it is not the court’s function to examine the committal proceedings before the magistrate and the decision to commit under s 41 of the Justices Act 1902. Nor is the court able, there being no evidence before it, to determine the issue as to whether the bill should have been found.

28 A further issue was raised by the Crown regarding, what appeared to be, ammunition that was found in the flat. This was examined by a forensic expert but the Crown conceded, on its own examination, that no evidentiary issue arose in relation to these proceedings as what was found was not ammunition for the weapon found in the unit.

29 The expert then went on, in fairly general terms, to criticise the forensic examination carried out by the police. One of his grounds was that greater emphasis was placed on examining the scratching of the car than on the taking of blood samples. Blood samples were taken, but at the initial stage of these proceedings, only some five samples had been analysed. Since that time, all blood samples have been analysed.

30 The case put on behalf of the accused, using the report of the expert forensic witness, Mr Barnes, was that opportunities to examine potentially exculpatory evidence had been lost and evidence had been destroyed. This evidence was expressed in fairly general terms, as he obviously had not had the opportunity to examine all of the issues involved.

31 The issue of the court's power to deal with the question of abuse of process has been the subject of determination on a wide range of potential abuses of power in the bringing and the conducting of proceedings.

32 The matter was dealt with in Jago v District Court of New South Wales (1989) 168 CLR 23 where the various members of the court expressed the view that the primary issue in the question of abuse of process, is the question of the fairness of the trial of the accused or the question of the unfairness of the trial of the accused. That case, of course, was dealing with the question of hearing delay and must be looked at in that context. However, the principles in that case have been applied since that time, in cases to which I will refer.

33 The court in Jago applied the High Court decision in Barton v The Queen (1980) 147 CLR 75 and in particular, I refer to Mason J, as he then was, at p96:

"There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power extends in an appropriate case to the grant of a stay of proceedings so as to permit a preliminary examination to take place. As a result of the speeches in Connelly v the Director of Public Prosecutions and the Director of Public Prosecutions v Humphrys , it is now established in the United Kingdom that although a judge has no power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought, the courts have a general power to prevent unfairness to the accused, even to the extent of preventing an abuse of process resulting from the proceedings brought without reasonable grounds.

... Every court has undoubtedly a right in its discretion to decline to hear proceedings on the grounds that they are oppressive and an abuse of process of the court"

citing the House of Lords in Connelly affirming Lord Parker CJ in Mills v Cooper ,

..."The view that there can be no injustice or unfairness to an accused in putting him on trial without reasonable grounds merely because he will ultimately be acquitted and because he can bring an action for damages for malicious prosecution has being emphatically rejected as indeed it should be".

34 The courts power to stay proceedings for abuse of process was also considered in Williams v Spautz (1992) 174 CLR 509 which dealt with proceedings that had been brought improperly.

35 In a further authority, referred by Mr Bonnici for the accused, of Von Einem (No. 1) (1991) 52 ACrimR 373 the applicant relied on an allegation of a history of media publicity as a reason for preventing the accused having a fair trial. It was there held that, where the prosecution embarks on a course of conduct which is sufficiently repressing to the accused person, it jeopardises the proper function of the courts, and the prosecution may be stayed as an abuse of process of the court.

36 It is put by the Crown in these proceedings that it would be understandable if Phealy Pov was in error in some part of his evidence, as he had himself been stabbed and had just seen his brother die as a result of stabbing. However, the Crown submitted that it is a matter for the jury to decide whether to accept the evidence of Phealy Pov, notwithstanding the discrepancies in some of his evidence, as compared with the evidence of the accused's friend, Ms Chapman, as the truth, for the purposes of the hearing.

37 In these proceedings, it must be remembered that self-defence is the primary issue. It is open to the Crown that, if it fails on the first limb of the case, it has to make out the second limb as I have outlined above. There remains the issue as to whether the response is reasonable, that is the case in respect of both the murder and the two alternative malicious injury charges.

38 There are several unusual features of this case: the question of the replica gun and why it was taken to the unit and why it was left in the unit; the failure of Ms Chapman to refer to the gun when she rang the police; the observation by Steiner that he saw the deceased carry an implement which looked very much like a description of the machete versus Phealy Pov’s allegation that it was he that brought it there later and no reference to the machete by the accused or Ms Chapman either on the phone or when the police arrived; why the deceased would have taken a replica gun that could not have in fact fired; and why he took his backpack with photographs of his own within it, is quite obscure.

39 In examining the issue of unfairness in respect of this application, I do not see that there is any suggestion that the Crown has brought these proceedings for an improper purpose. It is clear on the authorities that the court should exercise restraint in interfering with the hearing of cases before the court and should only use a power to stay where it is inevitable that a prosecution case must fail.

40 In these proceedings, notwithstanding that the prosecution has some difficulties in the inferences that can be drawn in relation to the carrying of the replica gun into the flat and the inconsistencies in Phealy Pov's evidence, I consider that these are issues which ought to be left to the jury, particularly in relation to the reasonableness of the response where seven stab wounds have been inflicted and these are matters which a jury should determine in terms of guilt or innocence of not only the principal charge but any of the four charges that will be before the jury.

41 I therefore refuse the application for a permanent stay.

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Last Modified: 01/06/2003