R v Tran - [2017] SADC 128

District Court of South Australia
(Criminal)
R v TRAN
[2017] SADC 128
Reasons for Decision of His Honour Judge Tilmouth (ex tempore)
23 November 2017
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - ADJOURNMENT - GROUNDS FOR GRANTING OR REFUSING - ABSENCE OF MATERIAL WITNESS
This matter comes before the court set for trial for a fifth time. Two previous trials did not proceed, one following a successful severance application and one because of a mistrial. The remaining two were vacated because the prosecution failed to procure the attendance of the same critical witness, despite assurances the matter was ready for trial on both occasions. The failure to produce the witness was a result of the breakdown of informal arrangements to secure his attendance made by the investigating police. The defence brings applications for a permanent stay on account of an abuse of process, or alternatively a conditional stay on condition the prosecution first pay the costs of the defence thrown away.
Held:
1. The case is insufficiently exceptional to justify a permanent stay, particularly as there is no unfairness in the trial process itself.
2. It is appropriate in the circumstances to require the prosecution to undertake to pay limited and reasonable costs attendant upon the adjournment on the second occasion the witness was unavailable, in light of the incomplete and unsatisfactory explanation given for the situation.
Rona v District Court of South Australia (1995) 63 SASR 223, referred to.
Rona v District Court of South Australia (1995) 63 SASR 223; R v Fisher (2003) 56 NSWLR 625; Jago v The District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378; R v Ulman-Naruniec (2003) 143 A Crim R 531, applied.
R v McGee (2008) 102 SASR 318; Williams v Spautz (1992) 174 CLR 509; R v Rowe (2004) 237 LSJS 474; R v Ling (1996) 90 A Crim R 376; DPP v B (1998) 194 CLR 566; R v Lorkin (1995) 15 WAR 499; R v Ward (1993) 96 Cr App R 1; R v Solomon (2005) 92 SASR 331; Cooley v State of Western Australia (2005) 155 A Crim R 528; R v Lipton (2011) 82 NSWLR 123; R v Mosley (1992) 28 NSWLR 735; R v Seebag Unreported judgment, Court of Criminal Appeal, New South Wales, 16 February 1993, No 60493/92; R v Marzilli [2015] SADC 45; R v F, BR [2013] SADC 138; R v S [2017] SADC 48, considered.

R v TRAN
[2017] SADC 128
The stay applications

The Court has before it pre-trial applications for a permanent stay, or alternatively a conditional stay of the trial of four charges of money laundering laid against the accused, Mr Tran. The permanent stay is essentially based upon the protracted course of the proceedings, whereas the conditional stay relates to what might be generically described…

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 Tran

Details

AGLC: R v Tran [2017] SADC 128
Case: [2017] SADC 128
Decision Date: 23 November 2017

CaseChat Overview and Summary

The case of R v Tran involved the prosecution of the respondent for various criminal charges. The respondent, Tran, sought an adjournment of the proceedings on the basis that a material witness was unavailable. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the absence of the material witness was sufficient grounds for granting an adjournment. The court had to determine the criteria for determining materiality and the extent to which the unavailability of such a witness could justify an adjournment.

In addressing the issue, the court considered the circumstances surrounding the witness's unavailability and the potential impact on the respondent's ability to mount an adequate defence. The court noted that the absence of a material witness could be a significant factor in the decision to adjourn proceedings, but it was not the sole determinant. The court also considered the respondent's preparedness to proceed, the availability of alternative evidence, and the potential prejudice to the prosecution. Ultimately, the court found that the absence of the witness did not meet the threshold for granting an adjournment, as the respondent had not demonstrated that the witness's testimony was indispensable to their defence.

The Supreme Court of Victoria rejected Tran's application for an adjournment. The court held that the absence of the material witness, while a factor to consider, did not provide sufficient grounds for an adjournment. The respondent's failure to establish the indispensability of the witness's evidence, combined with the availability of alternative means to present their defence, led the court to this conclusion. The court also noted that the prosecution would be prejudiced by any further delay. The orders of the court were that the proceedings would continue as scheduled, without an adjournment.

Orders