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Slotboom v R

Slotboom v R

Case [2013] NSWCCA 18 13 February 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Slotboom v R [2013] NSWCCA 18
Hearing dates: 1 February 2013
Decision date: 13 February 2013
Before: Simpson J at [1]
Johnson J at [2]
Grove AJ at [40]
Decision:
Leave to appeal refused.

Catchwords: CRIMINAL LAW - application for leave to appeal from decision of trial Judge refusing to adjourn trial - Applicant and co-accused tried for murder in 2012 - co-accused convicted of murder - jury could not agree concerning Applicant - retrial of Applicant fixed for January 2013 - application for adjournment of retrial until appeal against conviction by co-accused heard and determined - Crown case against Applicant dependent upon conviction of co-accused - claim of prejudice to Applicant if retrial proceeded and Applicant convicted and co-accused later acquitted by Court of Criminal Appeal - paucity of information concerning strength of appeal grounds of co-accused - appeal process still at early stages - significant delay before any appeal to be heard - no proper basis for grant of leave to appeal - leave refused
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Cases Cited: R v Matovski (1989) 15 NSWLR 720
Agius v R [2011] NSWCCA 119; 80 NSWLR 486
R v Alexandroaia (1995) 81 A Crim R 286
R v King (1985) 17 A Crim R 184
King v The Queen (1986) 161 CLR 423
Texts Cited: ---
Category: Principal judgment
Parties: Dirk Marten Slotboom (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr HK Dhanji SC; Mr M Breeze (Applicant)
Mr CK Maxwell QC (Respondent)
Solicitors:
William O'Brien & Ross Hudson Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/41967
Publication restriction: ---
Decision under appeal

Citation:

---

Date of Decision:

2013-01-30 00:00:00

Before:

Bellew J

File Number(s):

2009/41967

Judgment

SIMPSON J: The reasons given by Johnson J accurately reflect the reasons I joined in the order refusing the applicant leave to appeal.

JOHNSON J: The Applicant, Dirk Marten Slotboom, sought leave to appeal under s.5F(3)(a) Criminal Appeal Act 1912 from an interlocutory judgment or order of Bellew J on 30 January 2013 refusing to adjourn the Applicant's murder trial.

Following the refusal of the adjournment, the trial was fixed to commence on 4 February 2013.

At the conclusion of the hearing of this application on 1 February 2013, the Court made an order that leave to appeal was refused, with reasons to be published at a later time. These are my reasons for refusing the Applicant leave to appeal.

Application for Leave to Appeal Under s.5F Criminal Appeal Act 1912

This Court has made clear that the requirement for leave to appeal under s.5F(3) is a live question to be considered in the circumstances of the particular case: R v Matovski (1989) 15 NSWLR 720 at 722-723.

In Agius v R [2011] NSWCCA 119; 80 NSWLR 486, the Court said at 489 [10]:

"This Court has said that leave will only be granted where the…

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 Slotboom v R

Details

AGLC: Slotboom v R [2013] NSWCCA 18
Case: [2013] NSWCCA 18
Decision Date: 13 February 2013

CaseChat Overview and Summary

The case of Slotboom v R involved an application by the Applicant for leave to appeal from a decision made by the trial Judge to refuse an adjournment of the trial. The Applicant and a co-accused were tried for murder in 2012, and while the co-accused was convicted, the jury could not reach a verdict regarding the Applicant. A retrial was scheduled for January 2013, and the Applicant sought to adjourn the retrial until the appeal against the conviction of the co-accused was heard and determined. The Applicant argued that a retrial would prejudice them if they were convicted, and the co-accused was later acquitted by the Court of Criminal Appeal. The appeal process against the co-accused was still in its early stages, and the appeal was not expected to be heard for some time.

The central legal issues for the court to determine were whether the trial Judge's decision to refuse an adjournment was correct and whether there was a proper basis for granting leave to appeal. The court had to consider the potential prejudice to the Applicant if the retrial proceeded and the Applicant was convicted while the appeal of the co-accused was still pending. The court also had to assess the strength of the appeal grounds of the co-accused, which was limited at the time of the application. Additionally, the court needed to determine whether the significant delay before the appeal of the co-accused could be heard warranted an adjournment of the retrial of the Applicant.

The court found that there was no proper basis for granting leave to appeal. The court emphasised that the appeal process against the co-accused was still at an early stage, and there was insufficient information available concerning the strength of the appeal grounds. The court also noted that the appeal was not expected to be heard for some time, and therefore, there was no immediate risk of the Applicant being prejudiced if the retrial proceeded. The court concluded that the Applicant had not demonstrated a sufficient likelihood of success on appeal to warrant an adjournment of the retrial. Consequently, the court refused the application for leave to appeal, and the retrial of the Applicant proceeded as scheduled.

No specific final orders were mentioned in the text, but the refusal of leave to appeal meant that the retrial of the Applicant proceeded in January 2013 as originally scheduled.

Orders