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Public Annex UNITED IT-04-75-AR73.1 378 A378 - A23 NATIONS 02 December 2015 SF International Tribunal for the Case No. IT-04-75-AR73.1 Prosecution of Persons Responsible for Serious Violations of Date: 2 December 2015 International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 IN THE APPEALS CHAMBER Before: A Bench of the Appeals Chamber Registrar: Mr. John Hocking Date: 2 December 2015 THE PROSECUTOR v. GORAN HADŽIĆ PUBLIC ANNEX BOOK OF AUTHORITIES FOR PROSECUTION’S URGENT INTERLOCUTORY APPEAL FROM CONSOLIDATED DECISION ON THE CONTINUATION OF PROCEEDINGS The Office of the Prosecutor: Mr. Douglas Stringer Counsel for Goran Had`i}: Mr. Zoran Živanović Mr. Christopher Gosnell IT-04-75-AR73.1 377 BOOK OF AUTHORITIES FOR PROSECUTION’S URGENT INTERLOCUTORY APPEAL FROM CONSOLIDATED DECISION ON THE CONTINUATION OF PROCEEDINGS Table of Contents: 1. CASE LAW OVERVIEW: .............................................................................3 2. CASE LAW CATEGORISED BY COUNTRY / COURT: A. AUSTRALIA .........................................................................................................6 B. CANADA ...........................................................................................................60 C. ECtHR ...........................................................................................................128 D. ECCC ............................................................................................................148 E. ICC.................................................................................................................182 F. SCSL..............................................................................................................212 G. STL ................................................................................................................219 H. UNITED KINGDOM ..........................................................................................269 I. UNITED STATES ..............................................................................................278 J. BOOKS ............................................................................................................351 Case IT-04-75-AR73.1 2 December 2015 Public Annex Book of Authorities: Page 2 of 356 IT-04-75-AR73.1 376 CASE LAW CATEGORISED BY COUNTRY / COURT: Australia – Authorities: 1. R v. Jacobi, R Prosecution v. Frederick John Jacobi Applicant/Defendant, Australia, District Court of South Australia, Cite as: (2012) SADC 92, 2012 WL 4711864, Docket Number: DCCRM-11-514, 16 July 2012. 2. R v. Jacobi, R (Respondent) v. Frederick John Jacobi (Appellant), Australia, Supreme Court of South Australia, Cite as: (2012) SASCFC 115, 2012 WL 4503746, Docket Number: SCCRM-12-172, 24 August 2012, 3 October 2012. Canada – Authorities: 3. R. v. Blakeman, Her Majesty the Queen (Respondent) v. Donovan Jackson Blakeman (Applicant), Canada, Ontario Supreme Court, Cite as: 1988 CarswellOnt 848, Docket Number: Doc. RE-1511/88, Judgment: 6 September 1988. 4. R. v. Magomadova, Her Majesty the Queen (Appellant) v. Aset Magomadova, (Respondent), Canada, Alberta Court of Appeal, Cite as: 2015 CarswellAlta 71 Docket Number: Calgary Appeal 1301-0319-A, Judgment: 22 January 2015, (available online in full at <http://canlii.ca/t/gg1cm>, last accessed on 27 November 2015). ECtHR – Authorities: 5. Hadjianastassiou V. Greece, Application no. 12945/87, Judgment, 16 December 1992. ECCC – Authorities: 6. Prosecutor v. Ieng and others, Dossier No. 002/19-09-2007-ECCC-TC/SC(09), Decision on Immediate Appeal Against the Trial Chamber’s Order to Release the Accused Ieng Thirith, 13 December 2011. 7. Prosecutor v. Nuon Chea, Dossier No. 002/19-09-2007/ECCC/TC, Second Decision on Accused Nuon Chea’s Fitness to Stand Trial, 2 April 2013. Case IT-04-75-AR73.1 2 December 2015 Public Annex Book of Authorities: Page 3 of 356 IT-04-75-AR73.1 375 ICC – Authorities: 8. Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, 14 December 2006, ICC- 01/04-01/06 (OA 6). SCSL – Authorities: 9. Prosecutor v. Sesay et. al., Case No. SCSL-04-15-T, Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, 12 July 2004. STL – Authorities: 10. Prosecutor v. Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Case No.STL-14-06/PT/CJ, Transcript of 12 September 2014. 11. Prosecutor v. Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Case No.STL-14-06/PT/CJ, Order on Submissions Regarding Legal Representation, 11 November 2015. 12. Prosecutor v. Akhbar Beirut S.A.L. and Ibrahim Mohamed Ali Al Amin, Case No.STL-14-06/PT/CJ, Reasons for Decision on Assignment of Counsel, 5 June 2014. United Kingdom – Authorities: 13. R. v Howson (Peter Alan), Court of Appeal (Criminal Division), Cite as: (1982) 74 Cr. App. R. 172; 29, 30, June 1, 3, July 1981. Case IT-04-75-AR73.1 2 December 2015 Public Annex Book of Authorities: Page 4 of 356 IT-04-75-AR73.1 374 United States – Authorities: 14. US v. Ilario M.A. Zannino, United States, Court of Appeals, First Circuit, Cite as: 895 F.2d 1, Case No. 87–1221, decided 10 January 1990. 15. US v. Murray Bowman BROWN (a/k/a Bowman Brown), United States Court of Appeals for the Fourth Circuit, Cite as: 821 F.2d 986, Case Nos. 85- 5561(L), 86-5595 and 86-5637, decided 29 June 1987. Rehearing and Rehearing En Banc denied July 24 1987. 16. US v James LEONARD, Donald Brown, Robert Seyfert and John Papajohn, Jr, United States, District Court, E.D. New York, Cite as: 817 F.Supp. 286, Case No. 91–1251. December 22 1992. 17. US v Gregory L. DePALMA et al., Defendants, United States, District Court, S.D. New York, Plaintiff, Cite as: 466 F.Supp. 920, Case No. 78 CR 401, 16 March 1979. Books: 18. International Criminal Law Practitioner Library – Volume III - International Criminal Procedure. Gideon Boas, James L. Bischoff, Natalie L. Reid, and B. Don Taylor III. Cambridge: Cambridge UP, 2011. (Excerpt - cover page, title page, pp. 273-275). Case IT-04-75-AR73.1 2 December 2015 Public Annex Book of Authorities: Page 5 of 356 IT-04-75-AR73.1 373 1. Book of Authorities: Page 6 of 356 IT-04-75-AR73.1 372 [2012] SADC 92 Page 1 2012 WL 4711864 (Cite as:[2012] SADC 92) Keywords Opinions Judge Soulio Introduction The Application Power to Stay Proceedings The Balancing Process The Allegations Factors Relied Upon by the Applicant The Applicant's Health Delay “Division 14—Procedure in sexual offences 72A—Former time limit abolished Loss of Evidence Conclusion R v Jacobi R Prosecution Frederick John Jacobi Applicant/Defendant Docket Number(s):DCCRM-11-514 District Court of South Australia 09/07/2012 to 11/07/2012, 16 July 2012 Judge Soulio Disclaimer — Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated Criminal Law — procedure — adjournment, stay of proceedings or order restraining proceedings — stay of proceedings — abuse of process Applicant sought stay of criminal proceedings on the basis that their continuation would constitute an abuse of process given the applicant's physical health, and the loss of evidence due to the delay between the charged acts and the complaint to authorities Held: Application refused Counsel: Mr C Edge for the Prosecution © 2015 Thomson Reuters. Book of Authorities: Page 7 of 356 [2012] SADC 92 Page 2 2012 WL 4711864 IT-04-75-AR73.1 371 (Cite as:[2012] SADC 92) Solicitor: Director of Public Prosecutions for the Prosecution Counsel: Ms S David for the Applicant/Defendant Solicitor: Teusner & Co for the Applicant/Defendant The District Court (Criminal and Miscellaneous) Rules 1992 (SA) r 8; Criminal Law Consolidation Act 1935 (SA) ss 49, 56, 72A, 76A; Criminal Law Consolidation Act Amendment Act No. 98 of 1985 s 5; Evidence Act 1929 (SA) s 34CB & 34M, referred to. R v Liddy [2010] SADC 80; Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23;Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256;Williams v Spautz (1992) 174 CLR 509;Walton v Gardiner (1993) 177 CLR 378;Police v Sherlock (2009) 103 SASR 147;R v Glennon (1992) 173 CLR 592;R v Littler (2001) 120 A Crim R 512;Police v Pakrou (2008) 103 SASR 124;R v Davis (1995) 81 A Crim R 156;R v Hakim (1989) 41 A Crim R 372;R v Austin (1995) 84 A Crim R 374;R v Sexton [2000] SASC 379; R v Ulman-Naruniec (2003) 143 A Crim R 531;Longman v The Queen (1989) 168 CLR 79;R v Lane (unreported, FCA, Wilcox, Ryan and Higgins JJ, 19 June 1995); R v Polyukhovich S 3782 (unreported, SASC, Cox J, 7 December 1992); R v Liddy (No 4) [2001] SASC 152; R v T (1985) 38 SASR 428;R v Pinder (1989) 155 LSJS 65;R v Glynn (2002) 82 SASR 426;R v PNJ (No2) (2007) 99 SASR 1;Dupas v The Queen (2010) 241 CLR 237, considered. Judge Soulio Introduction 1 By an amended Information dated 9 July 2012 the applicant is charged with 13 offences of a sexual nature, namely three counts of indecent assault involving complainant SBM, eight counts of unlawful sexual inter- course against a complainant SJM, and two counts of unlawful sexual intercourse against a complainant
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