R v Taylor No. DCCRM-98-390 - [2000] SADC 57

R V TAYLOR
[2000] SADC 57

CHIEF JUDGE WORTHINGTON
Criminal

This is an application by the accused for a permanent stay of an information on the grounds of abuse of process. He is charged with committing burglary and assault occasioning actual bodily harm on the morning of 19 November 1997. For present purposes, the matter can be outlined as follows.
The complainant, then 80 years old, was in bed asleep when just after midnight she was awakened by the presence of a man in her bedroom. She says that he unsuccessfully tried to remove a television set from her bedroom. He left the room but after she discharged a starting pistol, he returned and attacked her, causing injuries to her face, hands, back and right leg. She is unable to identify her assailant. The Crown case rests heavily on a thumbprint which, if the evidence is accepted by the jury, came from the accused and was found on the outside upper frame of the complainant’s bedroom window later that morning. The jury will be asked to find that although this window was not the point of entry for the intruder, it had been lowered during that night in an attempt to enter through it.
The accused’s trial before a Judge of this court and jury started on 29 September 1998 and lasted 3 days. He was convicted on both counts by a majority verdict. On 14 December 1998 the Court of Criminal Appeal allowed an appeal by the accused and ordered a retrial.
The retrial commenced before me sitting with a jury on 15 July 1999, starting with a voir dire which continued on 16 July. The accused was then taken to hospital suddenly and the voir dire was not resumed until 11 October 1999. On 12 October 1999, a jury was empanelled and the trial proper commenced. On the next day I declared a mistrial.
A new trial was due to commence on 31 January 2000 before another Judge of this court and jury but that was vacated because of the unavailability of a witness. In the event, the trial commenced before me with a jury on 2 May 2000. The whole of that day and part of the next day were occupied with a voir dire. Evidence began on 3 May and continued on 4 May. I dismissed an application by Mr Moffa, for the accused, for a mistrial at the end of the complainant’s evidence in chief, but as the result of further matters arising during her cross examination, he made a further application for a mistrial. I heard submissions on the morning of 5 May and declared a mistrial. Mr Moffa intimated then that if the DPP presented the accused for trial again, he would apply for a stay. On 8 May the Director advised that the accused would be presented for trial and this application was heard on 9 May. By consent, I excused the accused from filing a written application.
The matters germane 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.

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Details

Case: [2000] SADC 57
Decision Date: 12 May 2000

CaseChat Overview and Summary

The case of R v Taylor is an application by the accused for a permanent stay of an information on the grounds of abuse of process. The accused is charged with committing burglary and assault occasioning actual bodily harm on 19 November 1997. The complainant, an 80-year-old woman, was in bed asleep when she was awakened by the presence of a man in her bedroom. The accused left the room but returned after she discharged a starting pistol. He then attacked her, causing injuries to her face, hands, back, and right leg. The complainant was unable to identify her assailant. The Crown case heavily relies on a thumbprint found on the outside upper frame of the complainant’s bedroom window. The accused's trial started on 29 September 1998, and he was convicted on both counts by a majority verdict. However, the Court of Criminal Appeal allowed an appeal by the accused and ordered a retrial. The retrial commenced on 15 July 1999, but it was later declared a mistrial on 12 October 1999 and again on 5 May 2000. The accused's counsel argued that a permanent stay of proceedings should be granted due to the abuse of process, as the accused could not receive a fair trial.

The court was required to decide whether a permanent stay of proceedings should be granted on the grounds of abuse of process. The court had to consider the complainant's potential identification of the accused as her assailant, the quality of the complainant's evidence, the changing nature of her evidence, and the overall weakness of the Crown case. The court also had to consider the principles of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences, and the need to maintain public confidence in the administration of justice.

The court dismissed the application for a permanent stay of proceedings. The court held that the accused's counsel's argument that the complainant could not be prevented from giving inadmissible and prejudicial evidence was not sufficient to grant a permanent stay. The court held that the quality of the complainant's evidence, the changing nature of her evidence, and the overall weakness of the Crown case did not add weight to the accused's counsel's primary submission about the inability of the complainant to be restrained from giving offending evidence. The court also held that the presentation of the accused for trial again would not amount to harassment. The court held that the accused is charged with serious offences and there is a legitimate public interest in the charges coming to trial. For the reasons given, the court was not satisfied that the accused cannot receive a fair trial.

The application for a permanent stay of proceedings was dismissed.

Orders