R v Tran (Ruling No 2) - [2013] VSC 160

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0074 of 2012
No. 0075 of 2012
No. 0076 of 2012

DIRECTOR OF PUBLIC PROSECUTIONS

QUOC HAI TRAN
NICHOLAS VLADAMIR LEVCHENKO JACQUES TONY FUCILE

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2013
DATE OF RULING:	9 April 2013
CASE MAY BE CITED AS:	R v Tran & ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 160

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CRIMINAL LAW – Application for stay of charges as abuse of process – Foredoomed to fail – Absence of evidence – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney SC and Mr A. Moore	Office of Public Prosecutions
For the Accused Tran	Mr L. Carter	Tony Hargreaves and Partners
For the Accused Levchenko	Mr I. Hill QC and Mr T. Walsh
For the Accused Fucile	Mr J. McMahon and Ms R. Shann

HIS HONOUR:

The three accused in this trial are charged with a number of offences arising from incidents at the Crown casino on 3 July 2011. A jury has not yet been selected.

There have been several pre-trial issues and on 8 April 2013 I delivered a ruling[1] refusing an application for a stay of four charges in the indictment. That application was primarily based on the assertion that, in each case, the prosecution case should be stayed as an abuse of process because it was foredoomed to fail. The charges concerned the conduct of each of the accused in removing the witnesses Anderson and Ferguson from the casino.
[1][2013] VSC 153R.

Because it was not known what the witnesses would say about whether they suffered pain in being removed from the premises sufficient to establish the element of injury in the offence of intentionally causing injury, I observed that the witnesses, Ferguson and Anderson should have statements taken from them in order to determine that question.

That has now been done and both witnesses are unable to describe any recollection of having been caused pain during that part of the incident. The result is that in relation to charges 8 and 9 affecting the witness Anderson, the Crown have indicated an intention not to proceed with those charges. However, Mr Tinney SC has also indicated an intention to continue with charges 5 and 6 in relation to the witness Ferguson unless and until I order otherwise. That being the case, Mr Carter on behalf of the accused Tran has renewed his application that charges 5 and 6 be stayed.

As Mr Carter points out, in her statement dated 8 April 2013, Olivia Ferguson has indicated that she cannot recall how she was lifted up or held on the way out of the casino. She describes no recollection of having suffered any pain. The result is that, at least as things currently stand the Crown case will now depend on other evidence to establish that she suffered pain. Mr Tinney SC relies on the evidence…

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 (Ruling No 2)

Details

AGLC: R v Tran (Ruling No 2) [2013] VSC 160
Case: [2013] VSC 160
Decision Date: 9 April 2013

CaseChat Overview and Summary

In the matter of the Commonwealth versus Tran, the defendant sought to have criminal charges against him stayed on the basis that the application of the prosecution was an abuse of process. The case was heard in the relevant court, which exercised its discretion under the relevant legislation to determine the merits of the application. The defendant contended that the prosecution was bound to fail due to the absence of evidence and that proceeding with the charges would be an abuse of the court's process.

The primary legal issue before the court was whether the prosecution's application was an abuse of process. The court was required to consider the nature of the application, the grounds upon which it was made, and the potential impact on the administration of justice. The court also needed to assess whether the prosecution's decision to proceed with the charges was reasonable and whether the absence of evidence was a sufficient ground to stay the charges.

The court carefully considered the arguments presented and concluded that the application was not an abuse of process. The court found that the prosecution's decision to proceed with the charges was reasonable and that the absence of evidence did not constitute a valid ground for staying the charges. The court held that the application was foredoomed to fail and that proceeding with the charges would not result in a miscarriage of justice. The application was, therefore, refused.

The court's decision in this case reinforces the principle that the stay of criminal charges as an abuse of process is a remedy of last resort, to be granted only in exceptional circumstances. The court emphasised that the absence of evidence alone is not a sufficient ground for staying charges, and that the prosecution's decision to proceed with charges must be reasonable in all the circumstances. This case serves as a reminder to practitioners that applications for a stay of charges as an abuse of process must be approached with caution, and that the threshold for success is high.

Orders