R v KOSITZIN [2015] NSWDC 303

District Court New South Wales

Medium Neutral Citation: R v KOSITZIN [2015] NSWDC 303 Hearing dates: 19/06/2015 Decision date: 13 August 2015 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Application for permanent stay refused. Catchwords: Criminal - permanent stay of proceedings, delay, 'lost' evidence, health of the accused. Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Barton v The Queen (1980) 147 CLR 75 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Crampton v The Queen (2000) HCA 60 Jago v District Court of New South Wales (1989) 168 CLR 23 Longman v The Queen (1989) 168 CLR 79 R v Glennan (1992) 173 CLR 592 R v Kesavaragah (1994) 181 CLR 231 R v Littler [2001] NSWCCA 173 R v RWO [2002] NSWCCA 133 R v Tolmie (Unreported, NSWCCA, 7 December 1995) TS v R [2014] NSWCCA 174 The Queen v Edwards [2009] HCA 20 Walton v Gardiner (1993) 177 CLR 378 Category: Procedural and other rulings Parties: Director of Public Prosecutions - Crown Nicolas Kositzin - offender Representation: Counsel: Mr P McGrath – Crown Mr P Barham - Offender File Number(s): 2013/326288

Judgment – Application for stay

Introduction 1. HIS HONOUR: Nicholas Kositzin (the 'applicant') has moved for a permanent stay of proceedings and other related orders, if needs be, in respect of the proposed prosecution of him by the Director of Public Prosecutions in relation to alleged sexual assaults said to be committed upon the complainant between January 1982 and July 1983, according to the most current indictment at "Akuna Bay", in other environs of the Hawkesbury River and at or near Mona Vale. The motion of the accused also seeks access to documents sought to be produced on subpoena if the application for a permanent stay of proceedings is unsuccessful. The applicant for a permanent stay of proceedings is opposed by the prosecution. The issue of the accused's access to subpoenaed documents has not yet been resolved having been put aside until the application for a permanent stay of proceedings is resolved. 2. The matter with which I am concerned came before me on Friday 19 June 2015. It is apparently a matter that had been in the list for some time. On 19 June 2015 the matter had been specifically listed before myself having previously being mentioned with a view to endeavouring to resolve the issues to be litigated. Unfortunately, 19 June 2015 was the last date I was sitting in Sydney for a period of seven weeks. The next week I was to go to Queensland for a conference conducted by the National Judicial College of Australia in respect of the Judicial Orientation Program for which I am on the Steering Committee. Thus, I was out of Sydney for a week for that. Then I was overseas for three weeks and then I have sat in Wagga for three weeks in a busy sittings. This was the first week I was back in Sydney. Thus, I listed the matter this morning at 9.30 with a view to delivering this judgment. I apologise to the parties for the delay but as they understood clearly on 19 June it was not possible for me to give judgment that day.