R v Zonneveld - [2018] ACTSC 97

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Zonneveld
Citation:	[2018] ACTSC 97
Hearing Date:	13 March 2018
DecisionDate:	16 March 2018
Before:	Murrell CJ
Decision:	Application dismissed.
Catchwords:	CRIMINAL LAW – PRE-TRIAL APPLICATION – application to stay criminal trial until costs of accused are paid – whether stay application should be granted – unfairness to applicant
Legislation Cited:	Crimes Act1900 (ACT) s 63A Criminal Code 2002 (ACT s 48 Evidence Act 2011 (ACT) s 50 Magistrates Court Act 1930 (ACT) s 88B
Cases Cited:	Barton v The Queen (1980) 147 CLR 75 Jago v District Court of New South Wales (1989) 168 CLR 23 Petroulias v R [2007] NSWCCA 154; 176 A Crim R 302 R v Bui [2011] ACTSC 102; 5 ACTLR 230 R v Fisher [2003] NSWCCA 41; 56 NSWLR 625 R v Mosely (1992) 28 NSWLR 735 The Queen v Martinello [2005] ACTSC 9 The Queen v Upton [2005] ACTSC 52
Parties:	Mark Adam Zonneveld (Applicant) ACT Director of Public Prosecutions (Respondent)
Representation:	Counsel Mr P Walker SC (Applicant) Ms S McMurray (Respondent)
Solicitors Ben Aulich & Associates (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCC 286 of 2016

MURRELL CJ:

On 16 April 2018, the applicant and the co-accused are to be tried on the charge that between 17 March 2011 and 1 March 2015, at Canberra, they conspired to commit the offence of bestiality contrary to s 63A of the Crimes Act1900 (ACT) and s 48 of the Criminal Code 2002 (ACT).

The applicant applies for an order staying the trial until the Crown pays or undertakes to pay the costs that he has thrown away because of the Crown’s belated decision to abandon the substantive charges of bestiality.

Chronology

On 7 June 2016, the applicant was charged with one offence of bestiality involving a dog.

On 10 October 2016, the applicant’s legal representatives sought particulars of the charge, including details of the act or acts which formed the subject of the charge.

On 27 October 2016, the Crown indicated that the date range in the original charge would be narrowed and that there would be two further charges of bestiality, relating to later periods.

On 2 November 2016, the applicant’s legal representatives asked the Crown to identify with precision, for each of the three charges, the act relied upon and the dog in question.

On 3 November 2016, the Crown identified the dog but did not particularise the acts relied upon.

On the applicant’s application, and with the Crown’s consent, on 16 December 2016 the matter was committed to the Supreme Court for trial under s 88B of the Magistrates Court Act 1930 (ACT).

The co-accused was also committed for trial. He faces numerous additional and unrelated charges, including charges of using a child for the production of child pornography.

10. On 24 April 2017, the Crown filed a joint indictment against the applicant and the co-accused that contained twelve counts, including…

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 Zonneveld

Details

AGLC: R v Zonneveld [2018] ACTSC 97
Case: [2018] ACTSC 97
Decision Date: 16 March 2018

CaseChat Overview and Summary

In the case of R v Zonneveld, the defendant, Mr Zonneveld, applied to the court for a stay of the criminal trial until certain costs were paid. The application was brought before the court on the grounds that the inability to pay these costs would result in an unfair trial for the defendant. The nature of the dispute was whether the stay application should be granted to ensure a fair trial, or if the proceedings should continue as scheduled.

The legal issues before the court involved interpreting the requirement of a fair trial under Australian law, and whether the inability to pay costs could be considered a substantial impediment to that fairness. The court had to weigh the rights of the defendant against the public interest in the timely administration of justice. Additionally, the court had to consider the precedent set by previous cases on similar applications and the impact of such a stay on the proceedings and the victim.

The court dismissed the application to stay the trial. The reasoning provided by the court was that the fundamental principle of a fair trial does not necessarily include the right to have all costs paid before the trial commences. The court found that the defendant's ability to pay costs was not a substantial impediment to a fair trial, and that the public interest in the timely administration of justice outweighed any potential prejudice to the defendant. The court relied on previous case law to support its decision, emphasizing that the right to a fair trial does not extend to ensuring that all financial barriers are removed prior to the trial. The dismissal of the application was based on the court's assessment that the trial could proceed without compromising the defendant's right to a fair hearing.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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