R v W

R v W - [2009] NSWDC 124 - NSWDC 2009 case summary — Zoe

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Cases Cited (11)

Austin (1995) 84 ACR 374 Barron v Attorney General for NSW (1987) 10 NSWLR 215 Barton v The Queen [1980] HCA 48 Basha (1989) A Crim R 337 Boulos v R [2008] NSWCCA 119 Jago v District Court of NSW (1989) 168 CLR 23 Hakim (1989) 41 ACR 372 Kesavarajah v R [1994] HCA 41 CASES CITED: R v Carver [1999] NSWCCA 135 R v Littler [2001] NSWCCA 173 R v Presser (1958) VR 45 R v Westley [2004] NSWCCA 192 R v WRC [2003] NSWCCA 394 The Queen v Davis (1995) 57 FCR 512 The Queen v Edwards [2009] HCA 20 Walton v Gardner (1992-3) 177 CLR 379 Williams v Spautz (1991-92) 174 CLR 509

6 The power to grant a permanent stay is discretionary: Basha (1989) A Crim R 337 per Hunt J at 339. The exercise of the discretion involves balancing the interests of the community and those of the applicant. There is a strong public interest in ensuring that persons accused of serious offences face trial: R v Carver [1999] NSWCCA 135 at [33]. Unless the interests of justice demand it, courts should exercise, rather than refrain from exercising their jurisdiction to try persons charged with criminal offences: Williams v Spautz at 519.

8 No narrow view of an abuse of process is appropriate: WRC at [54]. Before a stay may be granted, there must be "a fundamental defect which goes to the root of the trial", such that the trial judge will be unable to address the unfairness: Barton per Wilson J at 111, Jago per Mason CJ at 34, R v Littler [2001] NSWCCA 173 at [5]. There must be no available means of bringing about a fair trial. Usually, a trial judge's responsibility to avoid unfairness can be discharged by controlling the trial procedures, especially by giving directions to the jury that are designed to counteract any prejudice that the accused might otherwise suffer: Jago per Brennan J at 47.

10 The circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition: The Queen v Edwards [2009] HCA 20. However, delay and associated general prejudice will not create an abuse of process. Actual prejudice must be established: R v Westley [2004] NSWCCA 192 at [12].

11 In relation to criminal proceedings, delay is not infrequently associated with the death of witnesses, memory loss, or the loss of documents. When an absent witness's likely evidence is not known, any disadvantage arising from the witness's absence is speculative, and abuse of process cannot be established: Edwards at [33], Boulos v R [2008] NSWCCA 119 at [52]. Where delay has resulted in the loss of evidence by which a complainant's credibility might be tested, the issue can usually be addressed by an appropriate warning to the jury: Austin (1995) 84 ACR 374.

(1987) 10 NSWLR 215

(1989) 168 CLR 23

(1995) 57 FCR 512

[2003] NSWCCA 394

[1994] HCA 41

[2004] NSWCCA 192

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Cases Cited (11)