R v Boulos [2008] NSWDC 187

New South Wales District Court

CITATION: R v Boulos [2008] NSWDC 187

HEARING DATE(S): 17 - 20 March 2008

JUDGMENT DATE: 20 March 2008

JURISDICTION: Criminal

JUDGMENT OF: Murrell SC DCJ

DECISION: Application for stay of proceedings is refused

CATCHWORDS: Application For A Permanent Stay Of Proceedings - Defrauding the Commonwealth - Abus of process - Delay

Barton v The Queen (1980) 147 CLR 75 Jago v District Court of NSW (1989) 168 CLR 23 The Queen v Davis (1995) 57 FCR 512 Barron v Attorney - General for NSW (1987) 10 NSWLR 215 CASES CITED: Williams v Spautz (1991 - 92) 174 CLR 509 R v Carver [1999] NSWCCA 135 R v McCarthy (CCA, 12 August, 1994, unreported) R v Tolmie (CCA,7 December 1994, unreported) R v Littler [2001] NSWCCA 173

PARTIES: Regina Madgi BOULOS

FILE NUMBER(S): 2007/00013514

Mr I Bourke COUNSEL: Mr I McClintock SC Mr I McLachlan

Application For A Permanent Stay Of Proceedings

Background

1 The applicant seeks to permanently stay his trial on 10 counts of defrauding the Commonwealth, alleging that any trial would be an abuse of process because the delay in prosecution and the associated loss of evidence means that he cannot obtain a fair trial.

2 The applicant contends that a combination of factors means that he cannot obtain a fair trial. In summary, those factors are that there has been an unjustifiable delay in prosecuting the charges and: (1) the delay has resulted in the legitimate destruction or unavoidable loss of important documents; (2) important witnesses (in particular, a Mr Andrews) are no longer available; and (3) the passage of time has affected the memory of all witnesses.