R.v. JOHNSON [2001] NSWCCA 465

R.v. JOHNSON [2001] NSWCCA 465

The permanent stay was not justified. The respondent failed to prove that he could not obtain legal representation, the finding that his funds were exhausted was scarcely open on the evidence, the alleged agreement not to tender listening device material was not established, some delay was attributable solely to the respondent, and by April 2001 the defence was able to meet the Crown case. Although some adjournments had resulted from Crown failures or late disclosure, the circumstances did not amount to the extreme case or fundamental defect required for a permanent stay as an abuse of process.

Jurisdiction
Australia
Judgment Date
23 November 2001
Procedural Posture
Crown Appeal Under S.5 F Criminal Appeal Act 1912 Against a Permanent Stay of Criminal Proceedings on Indictment / Appeal to the New South Wales Court of Criminal Appeal From an Order of the District Court
Outcome
Appeal allowed; the order permanently staying the proceedings was vacated.
Legal Topics
['permanent Stay of Proceedings' 'abuse of Process' 'delay in Criminal Proceedings' 'fair Trial' 'legal Aid and Representation' 'disclosure by the Crown']
['criminal Law' 'criminal Procedure'] ['permanent Stay of Proceedings' 'abuse of Process' 'delay in Criminal Proceedings' 'fair Trial' 'legal Aid and Representation' 'disclosure by the Crown']

Case Brief

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Procedural Posture

Crown Appeal Under S.5 F Criminal Appeal Act 1912 Against a Permanent Stay of Criminal Proceedings on Indictment / Appeal to the New South Wales Court of Criminal Appeal From an Order of the District Court

Legal Issues

  1. 1 ['Whether the District Court judge was justified in permanently staying criminal proceedings against the respondent.' 'Whether delay, costs thrown away, refusal of legal aid, alleged impecuniosity, health deterioration, Crown disclosure conduct, and alleged changes in the Crown case made continuation of the proceedings unfairly and unjustifiably oppressive.' 'Whether there was an agreement binding the Crown not to tender listening device material.' 'Whether the respondent had shown that he could not obtain legal representation for trial.']

Ratio Decidendi

The permanent stay was not justified. The respondent failed to prove that he could not obtain legal representation, the finding that his funds were exhausted was scarcely open on the evidence, the alleged agreement not to tender listening device material was not established, some delay was attributable solely to the respondent, and by April 2001 the defence was able to meet the Crown case. Although some adjournments had resulted from Crown failures or late disclosure, the circumstances did not amount to the extreme case or fundamental defect required for a permanent stay as an abuse of process.

Court Disposition

Appeal allowed; the order permanently staying the proceedings was vacated.

Orders

  • ['The order appealed against be vacated.']