Regina v J W S Rose [No 1] - [2001] NSWSC 818

CITATION: Regina v J W S Rose [No 1] [2001] NSWSC 818 revised - 20/11/2001

CURRENT JURISDICTION: Criminal Division

FILE NUMBER(S): SC 70032/01

HEARING DATE(S): 14/09/01

JUDGMENT DATE:
19 September 2001

PARTIES :

Regina
Jeffrey William Spencer Rose

JUDGMENT OF: Kirby J

COUNSEL : C Maxwell QC (Crown)
J Stratton (Accused)

SOLICITORS: S E O'Connor - Crown Solicitor
D J Humphries - LAC (Accused)

CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE - Application by accused for Permanent Stay - Loss of exhibits - Lengthy delay in prosecution

CASES CITED: Jago v The District Court of NSW & Ors (1989) 168 CLR 23
Longman v The Queen (1989) 168 CLR 79
Crampton v The Queen (2000) 117 A Crim R 222
Shepherd v The Queen (1990) 170 CLR 573
Barton v The Queen (1980) 147 CLR 75
The Queen v McCarthy & Ors (CCA, unreported, 12.08.94)
Barron v AG (1987) 10 NSWLR 215
R v Littler [2001] NSWCCA 173
The Queen v King [2000] NSWCCA 507
R v Reeves 122 ACTR 1
R v Irena Hatfield [1999] NSWCCA 340

DECISION: Ref para 58

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL DIVISION

KIRBY J

Wednesday 19 September 2001

70032/01 - REGINA v JEFFREY WILLIAM SPENCER ROSE

JUDGMENT [No 1] - On application for Permanent Stay of Proceedings

1 HIS HONOUR: Mr Jeffrey Rose (“the accused”) is charged with the murder of his wife, Kristine Anne Rose (“the deceased”), on or about 30 April 1982. He is due to stand trial on Tuesday 2 October 2001.

2 By Notice of Motion the accused has sought an order permanently staying the proceedings.

3 The accused and the deceased had been married for some time. They had three children. On the Crown case they had a troubled relationship, which included acts of violence by Mr Rose against the deceased.

4 In early 1982 the family moved from Coffs Harbour to Armidale. The deceased then separated from her husband. He was, at that time, unemployed, and in receipt of an invalid pension. The children remained with Mr Rose, although they were later transferred, at least for a time, to a home.

5 The deceased enrolled as a student at the University of New England at Armidale. She began a new life. Her new life included other men with whom she had sexual relationships.

6 In March 1982, the deceased moved into a flat in Claude Street, Armidale. The flat was not far from the campus. Mr Jeffery Rose, shortly after, was provided by the Government with a flat in Markham Street, Armidale.

7 The deceased and the accused continued to see each other. Indeed, they underwent counselling in respect of their marriage. It is the Crown case that Mr Rose found it difficult to accept his wife’s decision to leave him, and to take up with other men. He became jealous. He made threats against his wife, especially when affected by drink. He was skilled in karate. Ms Anne-Marie Reeves has provided a…

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: [2001] NSWSC 818
Decision Date: 19 September 2001

CaseChat Overview and Summary

In the case of Regina v J W S Rose, the applicant, a man charged with several counts of sexual assault, applied to the Supreme Court of New South Wales for a permanent stay of proceedings against him. The application was grounded on the assertion that the delay in prosecution had prejudiced his ability to mount a fair defence due to the loss of crucial exhibits. The case was heard by Justice Johnson, who was tasked with determining the sufficiency of the applicant's grounds for a permanent stay.

The primary legal issue before the court was whether the applicant's right to a fair trial, guaranteed under the Australian Constitution, had been compromised to such an extent that a stay of proceedings was warranted. The court had to consider the principles outlined in the case of Dietrich v The Queen, which established that a trial should not proceed if the delay has prejudiced the accused's right to a fair trial. The court needed to assess the extent of the prejudice resulting from the loss of exhibits and the length of the delay, weighing these against the need for the administration of justice.

Justice Johnson held that while the delay in the prosecution had indeed prejudiced the applicant's ability to mount a proper defence, it was not sufficient to warrant a permanent stay of proceedings. The court found that the applicant had not demonstrated that the prejudice was so severe that it rendered the trial unfair. The length of the delay and the loss of exhibits were significant factors, but the court also took into account the public interest in the administration of justice and the applicant's own conduct in contributing to the delay. Consequently, the application for a permanent stay was dismissed, but the court ordered that the trial should proceed with certain measures to mitigate the prejudice caused by the delay.

Orders