The Queen v Peter Martiniello - [2005] ACTSC 9

THE QUEEN v PETER MARTINIELLO
[2005] ACTSC 9 (31 January 2005)

Ex Tempore Judgment

CRIMINAL LAW – practice and procedure – matter set down for trial when absence of crucial evidence known by Crown – application to adjourn trial due to lack of evidence.
CRIMINAL LAW – costs – stay of proceedings subject to Crown meeting costs caused by adjournment when Crown set matter for trial knowing of lack of evidence.
HUMAN RIGHTS ACT – right to trial without unreasonable delay.

Human Rights Act 2004, s 22(2)(c)

R v Trong Ruyen Bui [2003] ACTSC 102

R v Scott (1993) 116 ALR 703

Byrnes v Barry [2004] ACTCA 25

No SCC 144 of 2003

Judge: Connolly J
Supreme Court of the ACT
Date: 31 January 2005

IN THE SUPREME COURT OF THE  )
  )  No SCC 144 of 2003
AUSTRALIAN CAPITAL TERRITORY  )

THE QUEEN
v

PETER MARTINIELLO

ORDER

Judge:  Connolly J
Date:  31 January 2005
Place:  Canberra

THE COURT ORDERS THAT:

The trial be adjourned to a date to be fixed.

The further trial of the indictment be stayed until the Crown pays the reasonable costs, to be agreed or taxed, that the defence has incurred by reason of the adjournment.

Notwithstanding order 2, the matter be re-listed for directions at 9.30 am on 3 March 2005.

This is an application to adjourn the trial of Peter Martiniello, who was due to go to trial before a jury today on 11 counts of dishonestly using a computer with a view to gain and 11 counts of dishonestly using a machine, namely an automatic teller machine, with a view to gain.

It is alleged that these offences occurred between August 2000 and July 2001. An indictment and a case statement were filed on 28 April 2004 and are before me. The offences having allegedly occurred between August 2000 and July 2001, the matter was first before a magistrate when the charges were laid on 13 May 2003. He was then charged with a number of counts of theft.

There were the appropriate case management hearings in the Magistrates Court and there was a paper committal on 2 October 2003. Although it has been said by Mr Sahu Khan, for the Crown, that it was only a paper committal, it seems to me that a committal whether it be a fully contested hearing or a paper committal is, in any event, an assertion by the Crown on behalf of the community that a person is charged with certain offences and that the Crown is in a position to prove those offences on the material put before the committing magistrate.

The question for the committing magistrate, whether it be at a contested hearing where witnesses are called and cross-examined or on a paper committal, remains the same, namely is there material in the Crown case on which a jury, properly instructed, could convict?

Mr Martiniello was committed for trial on the basis of that paper committal on 2 October 2003. The matter then…

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: [2005] ACTSC 9
Decision Date

CaseChat Overview and Summary

This case concerns the application to adjourn the criminal trial of Peter Martiniello, who faced multiple counts of dishonestly using a computer and an automatic teller machine with the intent to gain. The trial was scheduled to begin on the date of the application. The primary legal issues were whether the trial should be adjourned due to the Crown's lack of crucial evidence and, if so, what conditions should be imposed on the adjournment. The court also had to consider the implications of the Human Rights Act 2004, which guarantees the right to a trial without unreasonable delay.

Justice Connolly found that the Director of Public Prosecutions (DPP) had set the trial date despite knowing that essential evidence was not available. The court was critical of the DPP's conduct for setting the trial date under such circumstances. The missing evidence related to electronic proof that Martiniello had accessed the Australia Post Bill Pay system, which was believed to be stored on an old decommissioned mainframe computer. Although the Crown hoped this evidence could be retrieved, it could not guarantee its availability. The court distinguished this case from R v Trong Ruyen Bui, where an adjournment was granted due to a crucial witness's unavailability, but the Crown had a reasonable expectation of proceeding with the trial. In Martiniello's case, the Crown knew it lacked sufficient evidence to proceed.

The court noted that while costs could not be ordered as a matter of law in criminal cases, it could impose conditions on the stay of proceedings. Justice Connolly decided that the fairest outcome would be to adjourn the trial and stay further proceedings until the Crown paid the reasonable costs incurred by the defence due to the adjournment. The court also set a strict time limit for the Crown to obtain the necessary evidence, ensuring the trial would not be unreasonably delayed. This decision aimed to balance the rights of both parties and adhere to the principles of justice and fairness, while also respecting the defendant's right to a trial without unreasonable delay.

Orders