Kernaghan & Associates Lawyers (applicant)
Director of Public Prosecutions (respondent)
File Number(s): 2013/193884
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 9 November 2016
Before: Herbert DCJ
File Number(s): 2013/193884
[3]
Judgment
THE COURT: These are our reasons for dismissing, immediately after the conclusion of argument, a notice of motion seeking a temporary stay of a trial presently taking place in the District Court of New South Wales.
Mr Anthony Peter Adams has pleaded not guilty to sexually assaulting a girl, TM, then aged 14 (she is now 18), who was in care. The trial was listed to commence on 4 October 2016 before her Honour Judge Herbert. There were a series of pre-trial applications, including an application for a stay. On 10 October 2016, the Crown advised that TM had taken an overdose and self-harmed, resulting in her needing to undergo an operation. The trial was adjourned to 19 October 2016 to allow TM to recover, and a jury was empanelled on that day. TM was cross-examined on the afternoon of 19 October, on 20 October and on the morning of 21 October. She was then excused.
On 25 October 2016, the defence obtained orders for short service of a subpoena to the company associated with the premises where TM had resided at the time. Documents were produced thereafter. It is accepted for present purposes that the material was not previously available to the applicant, and would assist the defence in discrediting TM's account. On 2 November 2016, the primary judge gave a judgment permitting further cross-examination on some of that recently produced material.
The primary judge recorded that a medical certificate was thereafter received stating that TM was "mentally unable to give evidence at this time" and that it was "not expected that she would overcome this inability in the foreseeable future". More details were provided the following day. The diagnosis was said to be "that she suffers from intellectual disability, social and emotional disability, major depressive disorder, complex post‑traumatic stress disorder, and disruptive mood dysregulation disorder". The doctor referred to an escalation of self-harm, and stated that:
"[TM] is mentally unable to cope with going to Court, she will do anything to avoid going, and the court proceedings should continue without her presence. Insisting on this may cause a terrible tragedy. Her prognosis mentally is poor and certainly will not improve in the short or medium term."
It is not necessary to summarise the details of the self-harm inflicted by TM. It was serious and required hospitalisation and a prescription of an increased dose of sedating medication, the latter affecting her ability to give evidence.
The primary judge declined to issue a subpoena requiring the complainant to attend for cross-examination, on the basis of the medical evidence. It was common ground in this Court that there was no realistic prospect that TM would be made available to be cross-examined. Instead, the Crown, in endeavouring to ensure a fair trial, adduced the substance of the recently produced material through other witnesses.
The defence applied for a stay. On 9 November 2016, the primary judge refused that application in an ex tempore judgment, and a copy of her Honour's reasons was provided to the Court when the motion was heard.
The primary judge referred to the principles governing the granting of stays in Subramaniam v The Queen [2004] HCA 51; 211 ALR 1 at [25]-[28] and TS v R [2014] NSWCCA 174 at [61]-[64]. Her Honour referred to what Gleeson CJ had said in R v McCarthy (unreported NSWCCA, 12 August 1994) that:
"Time and time again it happens in criminal proceedings that for any one of a variety of reasons witnesses who may be regarded as important by one side or the other dies, or becomes ill, or lose their memory or lose documents. If the result of that were that nobody could obtain a fair trial, and the proceedings had to be permanently stayed, it would go a long way toward solving the problems of delay in the criminal lists in this state. However the position is that it is well recognised that an occurrence of that kind does not of itself mean that a person cannot obtain a fair trial and that the proceedings need to be stayed" (at [13]).
The primary judge expressly had regard to the fact that (a) the foundational evidence for the impeachment of the credibility and reliability of the complainant was all before the jury; (b) the Crown was unable to provide any explanation of the events and unable to take issue with the accuracy or reliability of the accounts; (c) the applicant had lost the opportunity of confronting the complainant with this evidence, and foreshadowed that this would be drawn to the attention of the jury. Her Honour then declined to order either a temporary or a permanent stay.
The refusal of a temporary stay was on the basis that there seemed unlikely to be any benefit, given that the condition of the complainant was unlikely significantly to improve in the near future. No challenge is made to that aspect of the decision.
The refusal of a permanent stay was on the basis that her Honour was not persuaded that there was unacceptable injustice or unfairness or such oppression as to constitute an abuse of process.
An interlocutory appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) was lodged in this Court later that day. No doubt the grounds were drafted in haste. They are to the effect that the primary judge erred in refusing the permanent stay and erred in "failing to account for or insufficiently giving weight to" the effect upon the accused's right to a fair trial, to the inability to avail himself of the ruling that TM be recalled, and the inability to complete the cross-examination of TM.
The question is whether a temporary stay should be granted pending the determination of the s 5F appeal. This judgment does not determine that appeal. However, it is necessary to say something about its apparent prospects.
The refusal of a permanent stay falls within the orders from which an appeal pursuant to s 5F(3) may be brought. However, it is sufficient to say that the dispositive aspects of her Honour's reasons are squarely directed to the issues of which complaint is made, and that none of the grounds of appeal identifies an error which, on its face, would engage the principles of House v King (1936) 55 CLR 499.
It is also necessary to consider the effect of an interlocutory stay on the pending criminal proceedings. When the application was heard (shortly after 2pm on 10 November 2016), the court was told that the defence counsel was at that moment addressing the jury. Argument proceeded on the basis that in all probability, absent a stay, the jury will retire either on Friday afternoon, or very early next week. It would be most unusual for this Court to intervene in relation to a trial that has proceeded to such an advanced stage, but that is not to say it will not do so if a compelling reason is established.
In the absence of a stay, either the jury will convict, or it will acquit, or it will be unable to reach a verdict. In the latter two circumstances, there is no prejudice to the applicant if a temporary stay is refused. Indeed, the granting of a temporary stay in those circumstances would deny such chance as there is for a favourable verdict. Conversely, if the jury returns a guilty verdict, then there is no reason why an appeal might not be brought from that conviction, and heard in short order, raising the same points sought to be raised in the present s 5F appeal (and any other grounds as may be available to the applicant). The Court was told that the applicant is presently on bail. There is no information before this Court to express any meaningful view as to whether that would change in the event of a guilty verdict.
However, if a stay were granted, then there would be the certainty of interrupting either closing address of the defence, or the judge's summing up. No doubt it would be possible for an urgent final determination of the s 5F appeal to take place, and debate in this Court proceeded on the hypothesis that that might occur on Friday 11 November or Monday 14 November, before the jury had retired. However, this is not a case where, if the appeal were allowed, then TM would be recalled (we put entirely to one side the considerations that such a course would involve). If the s 5F appeal were allowed, the practical effect would not be a permanent stay. Instead, the jury would be discharged, and there would be a question whether, and if so when, a new trial could take place.
The foregoing means that this is a clear case. Mr Adams has not made out a strong case of error, while considerations of the balance of convenience strongly point in favour permitting the jury to deliberate and reach a verdict.
For those reasons, we ordered that the notice of motion be dismissed.
[4]
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Decision last updated: 18 November 2016