[2013] NSWCA 26
Agius v The Queen (2011) 80 NSWLR 486
[2011] NSWCCA 119
Barton v R (1980) 147 CLR 75
[1980] HCA 48
Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256
[2021] NSWCA 316
CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313
DAO v The Queen (2011) 81 NSWLR 568
Source
Original judgment source is linked above.
Catchwords
[2013] NSWCA 26
Agius v The Queen (2011) 80 NSWLR 486[2011] NSWCCA 119
Barton v R (1980) 147 CLR 75[1980] HCA 48
Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256[2021] NSWCA 316
CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313
DAO v The Queen (2011) 81 NSWLR 568[2010] HCA 20
Finniss v New South Wales [2023] NSWCA 292
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32(2023) 97 ALJR 857
Gorman v McKnight [2020] NSWCA 20
House v The King (1936) 55 CLR 499
[1936] HCA 40
Jago v District Court of New South Wales (1989) 168 CLR 23
(2016) 263 A Crim R 356
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
[2018] HCA 30
Moti v R (2011) 245 CLR 456
[2011] HCA 50
Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218
[2019] NSWCA 102
Murakami v Wiryadi (2010) 109 NSWLR 39
[2019] NSWCA 243
Williams v Spautz (1992) 174 CLR 509
Judgment (17 paragraphs)
[1]
ter for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Moti v R (2011) 245 CLR 456; [2011] HCA 50
Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Murakami v Wiryadi (2010) 109 NSWLR 39; [2010] NSWCA 7
O'Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19
Photios v Photios [2019] NSWCA 158; (2019) 372 ALR 264
Pound v R [2019] VSCA 279; (2019) 280 A Crim R 109
Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
R v Dinh [2000] NSWCCA 536; (2000) 120 A Crim R 42
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
R v Hakim (1989) 41 A Crim R 372
R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399
R v Matovski (1989) 15 NSWLR 720
R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316
R v Passmore (2021) 110 NSWLR 292; [2021] NSWCCA 201
R v RD [2016] NSWCCA 84
R v Steffan (1993) 30 NSWLR 633
R v Van Phu Ho (Court of Criminal Appeal (NSW), 18 July 1994, unrep)
R v WRC (2003) 59 NSWLR 273; [2003] NSWCCA 394
Ridgeway v The Queen (1995) 184 CLR 19; [19995] HCA 66
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Rogerson v The Queen [2021] NSWCCA 160; (2021) 290 A Crim R 239
Rosamond v R [2022] NSWCCA 251
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Soulos v Pagones [2023] NSWCA 243
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
Subramaniam v R [2004] HCA 51; (2004) 79 ALJR 116
Sun v Chapman [2022] NSWCA 132
The Will of Gilbert (1946) 46 SR (NSW) 318
TS v R [2014] NSWCCA 174
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Wigmans v AMP Ltd (2019) 103 NSWLR 543; [2019] NSWCA 243
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Texts Cited: M Douglas, Nygh's Conflict of Laws in Australia (10th ed, 2019, LexisNexis)
Category: Principal judgment
Parties: Anton Koschier (Applicant)
The Crown (Respondent)
Representation: Counsel:
[2]
S S Pararajasingham with A Wong (Applicant)
M England (Respondent)
[3]
Laxon Lex Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2021/276274
Publication restriction: There is to be no publication of the names of or any information that identifies or is likely to lead to the identification of the complainants referred to as AM and FC.
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Citation: [2023] NSWDC 323
Date of Decision: 17 August 2023
Before: Fitzsimmons SC DCJ
File Number(s): 2021/276274
[4]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 28 September 2021, the Applicant, who is presently 88 years old, was charged with 12 counts of historical sexual offending against two complainants, AM and FC. The Applicant is the uncle, by marriage, of both the complainants who are first cousins. The offences in relation to AM are alleged to have taken place between 1961 and 1976 when AM was between 6 and 13 years old and those offences in relation to FC are alleged to have taken place between 1962 and 1976 when FC was between 3 and 17 years old.
Both complainants reported the alleged offending to police in 1997. In April 1998, the police suspended their investigation into the allegations and no charges were laid. The complainants made further reports in respect of the offending in 2021 which led to the investigation being reopened.
On 27 March 2023, Hopkins DCJ found the Applicant unfit to stand trial and ordered that he be tried by way of special hearing pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act). Section 56(4) of the MHCIFP Act provides that the fact that a defendant has been found unfit to be tried for an offence is presumed not to be an impediment to the person's reputation.
By a Notice of Motion filed on 5 June 2023, the Applicant reagitated his earlier application for a permanent stay of the proceedings. The application was brought on the basis of the Applicant's cognitive impairment, the substantial delay between the date of the allegations and the special hearing and the fact that the decision not to pursue a prosecution in 1998 resulted in an inherent unfairness and forensic disadvantage to the Applicant by reason of the loss or destruction of evidence.
On 17 August 2023, following a hearing which took place on 5-7 June and 21 July 2023, Fitzsimmons SC DCJ (the primary judge) dismissed the application for a permanent stay of the proceedings: R v Koschier [2023] NSWDC 323 (the primary judgment).
The Applicant sought leave to appeal from the primary judgment on five grounds, namely that the primary judge erred by:
1. applying the "common humanity" test from Subramaniam v R [2004] HCA 51 and Kitchingman v R [2023] NSWCCA 4 (Ground 1);
2. failing to give the Applicant's mental impairment full weight (Ground 2);
3. failing to consider whether the circumstances of the Applicant's mental impairment and the disadvantages arising from the delay were productive of unacceptable unfairness and whether, having regard to the likely outcome of the special hearing, there remained a sufficient public interest in the proceedings continuing (Ground 3);
4. applying an improper balancing test when considering the specific prejudice occasioned to the Applicant (Ground 4); and
5. failing to grant a permanent stay of proceedings (Ground 5).
The Court held (Bell CJ, Harrison CJ at CL and Chen J agreeing), refusing leave to appeal on all grounds:
1. Although there is a line of authority in which the Court's power to permanently stay criminal proceedings has been described as "discretionary" with the applicable standard of appellate review being that stated in House v the King (1936) 55 CLR 499, there is no reason in principle why the "correctness standard" of appellate review endorsed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 in respect of decisions whether to grant a permanent stay of civil proceedings would not also apply to criminal proceedings in which a permanent stay was sought: [33]-[34].
Warren v Coombes (1979) 142 CLR 531, Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, R v Carroll (2002) 213 CLR 635, Murakami v Wiryadi (2010) 109 NSWLR 39, Photios v Photios [2019] NSWCA 158, Wigmans v AMP Ltd (2019) 103 NSWLR 543, Gorman v McKnight [2020] NSWCA 20, CBRE (V) Pty Limited v Trilogy Funds Management Limited (2021) 107 NSWLR 202, Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Sun v Chapman [2022] NSWCA 132, Soulos v Pagones [2023] NSWCA 243, Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256, Jago v District Court of New South Wales (1989) 168 CLR 23, Kitchingman v R [2023] NSWCCA 4, BTU v R [2023] NSWCCA 36, Director of Public Prosecutions (Cth) v Knopp [2023] VSCA 315, Derley v R [2016] NSWCCA 60, considered.
1. Identification of the correctness standard as the applicable standard for review of first instance decisions in relation to stay applications means that any appeal following the grant of leave to appeal is by way of rehearing. The reasoning of the primary judge, except in relation to those areas where some special advantage in the Fox v Percy (2003) 214 CLR 118 sense is present, diminishes in significance where a correctness review is to take place. An appellate court may nonetheless endorse some or all of the primary judge's reasoning and adopt unchallenged intermediate findings of fact in such an exercise: [35]-[42].
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, Rogerson v The Queen [2021] NSWCCA 160, R v Passmore (2021) 110 NSWLR 292, Fox v Percy (2003) 214 CLR 118, considered.
1. Where the primary judge's reasoning remains most significant in an appeal from an interlocutory decision is in the context of the threshold consideration of whether leave to appeal should be granted. A "tight rein" should be kept on interference with interlocutory orders and, without seeking to fetter the Court's discretion in relation to the grant of leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), leave should only be granted where there is a demonstrated "error of principle … as well as the possibility or likelihood of substantial injustice": [43]-[49].
The Will of Gilbert (1946) 46 SR (NSW) 318, DAO v The Queen (2011) 81 NSWLR 568, Agius v The Queen (2011) 80 NSWLR 486, Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275, O'Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19, R v Ho (Court of Criminal Appeal (NSW), 18 July 1994, unrep), Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108, Rosamond v R [2022] NSWCCA 251, Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164, Age Co Ltd v Liu (2013) 82 NSWLR 268, Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597, R v Steffan (1993) 30 NSWLR 633, R v Matovski (1989) 15 NSWLR 720, R v Dinh [2000] NSWCCA 536, considered.
1. The "common humanity" test established in Subramaniam v R [2004] HCA 51 forms part of the analysis where a stay of proceedings is sought by reference to the mental infirmity of the applicant in combination with other aspects of prejudice: [57].
Subramaniam v R [2004] HCA 51, Kitchingman v R [2023] NSWCCA 4, referred to.
1. The weight given by the primary judge to the Applicant's mental impairment is a matter which presents no issue of principle for the purposes of the grant of leave to appeal and is of peripheral relevance at best in a case that calls for the engagement of the correctness standard of review: [58]-[59].
2. Prognostications as to the likely outcome of a hearing are inappropriate on a stay application which should not involve an assessment of the strength of a case unless it is contended that a case is so hopeless that it is liable to be summarily dismissed or struck out and constitutes an abuse of process for that reason. Equally, whether the continuation of proceedings is in the public interest has never been a test or criterion for the grant of a permanent stay. Such a formulation would be apt to undermine the exceptional nature of this interlocutory remedy: [62]-[63].
McDonald v R [2016] VSCA 304; Pound v R [2019] VSCA 279; Ridgeway v The Queen (1995) 184 CLR 19; Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; Ridgeway v The Queen (1995) 184 CLR 19; Rogers v The Queen (1994) 181 CLR 251; Jago v District Court of New South Wales (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378, referred to.
1. Prejudice to an accused occasioned by way of delay in bringing a prosecution is not to be regarded as neutralised by corresponding prejudice to the Crown for the purposes of determining an application for a stay of proceedings. Notwithstanding that, to the extent that the primary judge engaged in this type of reasoning, his doing so did not give rise to a material error, nor was it apt to cause an injustice. Many of the examples of prejudice relied upon by the Applicant were speculative and, in any event, a fair trial does not equate to a perfect trial: [72]-[73].
DAO v The Queen (2011) 81 NSWLR 568; Finniss v New South Wales [2023] NSWCA 292, referred to.
[5]
JUDGMENT
BELL CJ: This is an application brought pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) (the Act) for leave to appeal from an interlocutory decision of Fitzsimmons SC DCJ (the primary judge) declining to permanently stay the prosecution of the Applicant, Mr Anton Koschier: R v Koschier [2023] NSWDC 323. It is well established that the grant or refusal of such an application falls within the words "interlocutory judgment or order" in s 5F of the Act and thus requires a grant of leave to appeal: R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399 at [22].
On 28 September 2021, the Applicant, who is presently 88 years old, was charged with 12 counts of historical sexual offending against two complainants, AM and FC. The Applicant is the uncle, by marriage, of both the complainants who are first cousins. The offences in relation to AM are alleged to have taken place between 1961 and 1968 when AM was between 6 and 13 years old and those offences in relation to FC are alleged to have taken place between 1962 and 1976 when FC was between 3 and 17 years old.
FC first reported the alleged offending to police in April 1997. The Applicant was interviewed by police in relation to the allegations in August 1997, and a statement was taken. AM first made a report to police in September 1997. In April 1998, police suspended their investigation into the allegations and no charges were laid at that time.
FC made a further report to the police in respect of the offending in June 2021. This did not involve the addition of any complaints that were not the subject of her 1997 statement. A further statement was also later made by AM in July 2021. This statement elaborated upon the complaints made in her 1997 statement but also added a new complaint which became Count 2 on the indictment. These two statements prompted the investigation into the Applicant to be reopened and statements were also obtained by police from other witnesses.
By way of an indictment dated 17 May 2022, the Applicant was charged with the following offences:
1. Counts 1-3: in relation to AM, three counts of assault of a female under the age of 16 years with an act of indecency, contrary to s 76 of the Crimes Act 1900 (NSW) (Crimes Act);
2. Counts 4-10: in relation to FC, seven counts of assault of a female under the age of 16 years with an act of indecency, contrary to s 76 of the Crimes Act;
3. Count 11: in relation to FC, one count of unlawful carnal knowledge of a girl over 10 years old and under 16 years old, contrary to s 71 of the Crimes Act; and
4. Count 12: in relation to FC, one count of assault of a female aged 16 years or over with an act of indecency, contrary to s 76 of the Crimes Act.
[6]
The primary judgment
The primary judgment included a detailed overview of the background to the complaints and a summary of the Crown Case, including detail of the statements of the two complainants: PJ [5]-[26].
His Honour then set out the principles relevant to a stay application, referring in this context to the following cases: Barton v R (1980) 147 CLR 75 at 111; [1980] HCA 48; Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 (Jago) at [34]; R v Moore (2015) 91 NSWLR 276; [2015] NSWCCA 316 at [176]; Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 at [9] (Batistatos); TS v R [2014] NSWCCA 174 at [1], [64]; R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 at [23]; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (Walton); Moti v R (2011) 245 CLR 456; [2011] HCA 50 at [10]; R v RD [2016] NSWCCA 84 at [56]; Dupas v R (2010) 241 CLR 237; [2010] HCA 20 at [37]; Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [71].
The primary judge then turned to a consideration of the Applicant's impaired cognitive functioning: PJ [40]-[50]. This was not for the purposes of assessing his fitness to plead but rather, to set out the nature and extent of that impairment. His Honour summarised the evidence of Adjunct Professor Tuly Rosenfield and Dr Olav Nielssen, recording their respective conclusions as to the Applicant's mental state. At PJ [44], the primary judge noted that:
"Professor Rosenfield provided a supplementary report in response to a report commissioned on behalf of the Crown from Dr Nielssen. He restated the opinion contained in his primary report that the applicant's impairments in reasoning and judgement were associated with brain disease and disease of the frontal lobes associated with impaired executive function. His ability to understand and reason was, in the words of his wife, 'like a child'."
At PJ [49]-[50], his Honour summarised the evidence of Dr Nielssen:
"Dr Nielssen diagnosed the applicant as suffering dementia, or a permanent and significant decline in several aspects of cognitive functioning. The corroborative accounts of the applicant's wife and son included fatigue, loss of balance, a decline in memory function and the inability to communicate as well as a loss of self-awareness. Cognitive performance and sensitive tests of memory and concentration during the recent interview were consistent with the presence of dementia.
Dr Nielssen agreed with Professor Rosenfield as to the applicant's diagnosis and the effect of his condition on his ability to participate in a trial. He concluded that the applicant was unfit for trial according to the criterion s 36 of the Act 'on the basis of the effect of his cognitive function on his ability to follow any proceedings, provide reliable instructions to his legal representatives, and on his ability to give coherent evidence on his own behalf'. It was considered that the applicant's condition was unlikely to improve sufficiently to be considered fit for trial."
[7]
Grounds of Appeal
By way of a Further Amended Grounds of Appeal document filed on 30 January 2024, the Applicant seeks leave to appeal from the primary judgment on the following grounds:
"1. His Honour erred in applying the "common humanity" test from Subramaniam v R (2004) 79 ALJR 116 and Kitchingman v R [2023] NSWCCA 4.
2. His Honour erred in failing to give the Applicant's mental impairment full weight.
3. His Honour erred in failing to consider whether the circumstances of the Applicant's mental impairment and the disadvantages arising from the delay were productive of unacceptable unfairness and whether, having regard to the likely outcome of the special hearing, there remained a sufficient public interest in the proceedings continuing.
4. His Honour erred by applying an improper balancing test when considering the specific prejudice occasioned to the Applicant and whether this prejudice justified a stay of proceedings.
5. His Honour erred in failing to grant a permanent stay of proceedings."
[8]
Standard of appellate review
The Applicant and Crown were in agreement that, in light of the High Court's decision in GLJ, the applicable standard of appellate review in these proceedings is the "correctness standard" identified in Warren v Coombes (1979) 142 CLR 531 at 552; [1979] HCA 9 (Warren v Coombes), as opposed to that set out in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (House v The King).
The conclusion in GLJ that the applicable standard of appellate review in respect of a decision whether to permanently stay a proceeding was the correctness standard was most significant as many earlier decisions involving stays of proceedings, including in the High Court, had characterised such decisions as being discretionary in nature: see, for example, Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 at [164] citing R v Carroll (2002) 213 CLR 635; [2002] HCA 55 and Batistatos at [7].
This issue of the proper characterisation of stay applications had been raised by Spigelman CJ in Murakami v Wiryadi (2010) 109 NSWLR 39; [2010] NSWCA 7 at [32]-[35] and was also noted in Photios v Photios [2019] NSWCA 158; (2019) 372 ALR 264 at [37]-[40]; Wigmans v AMP Ltd (2019) 103 NSWLR 543; [2019] NSWCA 243 at [35]; Gorman v McKnight [2020] NSWCA 20 at [50]; and CBRE (V) Pty Limited v Trilogy Funds Management Limited (2021) 107 NSWLR 202; [2021] NSWCA 316 at [8]; see also M Davies, AS Bell, PGL Brereton and M Douglas, Nygh's Conflict of Laws in Australia (10th ed, 2019, LexisNexis) at [8.30]-[8.32]. It had not, however, previously been resolved.
In GLJ at [26], the majority (Kiefel CJ, Gageler and Jagot JJ) said that:
"… If … a judge must stay proceedings that are an abuse of process and must not stay proceedings that are not an abuse of process, it necessarily follows that the decision is not a discretionary one for the purpose of ascertaining the applicable standard of appellate review. Nor does the application of the standard applicable to discretionary decisions - 'whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration' - reflect either the purpose of the power (to protect the integrity of the adversarial system) or the extreme consequences of an exercise of the power (a court declining to exercise its jurisdiction). That the classes of possible abuse of process are not closed because 'notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case' may be accepted, but does not dictate that a decision to grant a permanent stay is discretionary in nature." (Footnotes omitted.)
Steward and Gleeson JJ, although in dissent as to the outcome, agreed with this aspect of the majority's reasons: see GLJ at [95] and [161].
[9]
The question of leave
Where the primary judge's reasoning is and remains most significant in the case of an appeal from an interlocutory decision, such as that given in the present case, is in the context of the threshold consideration of whether leave to appeal should be granted. In The Will of Gilbert (1946) 46 SR (NSW) 318 at 323, Jordan CJ famously said that:
"…if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."
Whilst recognising, after GLJ, that the "correctness standard" now applies to appellate review of stay applications, and that stay applications are not to be treated as involving an exercise of discretion, Jordan CJ's observations about a "tight rein" needing to be kept on interference with interlocutory orders of judges at first instance, and the reasons for it, remain apposite, as has been recognised in a number of decisions which have involved s 5F of the Act: see, for example, DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [76] (DAO).
In other words, where interlocutory decisions are concerned, the correctness standard of appellate review is not engaged unless and until leave to appeal has been granted. The requirement of leave to appeal operates as an important filter in this regard and that filter is of importance even where, unlike many s 5F applications, the matter in respect of which leave is sought is not one that may properly be left to consideration on appeal after trial if a conviction results: cf. Agius v The Queen (2011) 80 NSWLR 486; [2011] NSWCCA 119 at [12] (Agius).
Leave to appeal pursuant to s 5F(3)(b) will not readily be granted. As five judges of this Court observed in Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275 at [73] (Maules Creek), citing R v Dinh [2000] NSWCCA 536; (2000) 120 A Crim R 42 (Dinh) at [34] and Agius at [10]:
"The fact that it is open to appeal the trial judge's order does not mean that the Court should grant leave to do so. There are well-established, significant reasons for exercising restraint in granting leave to determine interlocutory disputes in criminal matters. Thus leave will not be granted readily…"
[10]
Should leave to appeal be granted?
In the present case, no discrete argument was addressed to the question whether leave to appeal should be granted. Such leave was required pursuant to s 5F(3)(b) of the Act because of the interlocutory nature of the decision. The Crown did not oppose the grant of the requisite leave but non‑opposition to the grant of leave does not mean that leave to appeal will necessarily be granted. Parties, including the Crown, should expressly address the question of leave in their submissions on a s 5F application.
In my view, leave to appeal should be refused. I will state briefly my reasons for refusing leave in relation to each of the proposed grounds of appeal.
[11]
Ground 1
Proposed Ground 1, as formulated, complained of the application of the "common humanity" test from Subramaniam and Kitchingman. In the Applicant's written submissions, it was contended that this "test" does not apply to a case where more than an applicant's mental infirmity is relied upon to found a stay.
The Applicant correctly pointed out that, unlike in the present case, in Subramaniam itself, only mental infirmity was relied upon. That was a point of distinction but was of no moment. It was obviously appropriate and necessary for the primary judge to have regard to the fact that the Applicant was unfit to plead by reason of his cognitive impairment and the MHCIFP Act made provision for a special hearing notwithstanding this fact, as was pointed out by the High Court in Subramaniam. That was the special context to which Basten AJA also pointed to in Kitchingman. But the primary judge did not confine himself to considering whether the "common humanity" test was met. Had it been, that would have been the end of the matter, and a stay would have been granted, as pointed out above. But the failure to satisfy that test did not have the result that the primary judge put aside the significance of the Applicant's mental impairment for the purposes of the stay application more generally. His Honour expressly accepted the Applicant's submission that a "bifurcated approach" was not appropriate (see the passage extracted at [20] above) and expressed his ultimate conclusion by reference to the Applicant's mental capacity in combination with the other aspects of prejudice relied upon: see, in particular, his Honour's use of the expression "and/or" in PJ [137], extracted at [24] above.
[12]
Ground 2
I would also refuse leave in respect of proposed appeal Ground 2 which raises the weight given by the primary judge to the Applicant's mental impairment, a matter which presents no issue of principle for the purposes of the grant of leave to appeal and is of peripheral relevance at best in a case that would call for the engagement of the correctness standard of review, were leave otherwise to be granted: see [51] above.
This is not a case where the primary judge gave no weight to the Applicant's mental impairment. Indeed, the contrary is demonstrably the case. The proposed ground of appeal as formulated presupposes that a particular (albeit elusive) degree of weight must be attributed to particular factors bearing on whether to grant or refuse a stay. That is a quite artificial submission. Although, post-GLJ, the decision whether to grant or refuse a stay admits of only one correct answer, that does not mean that the decision is not an evaluative one (see [32] above) nor that the evaluative process involves precision or mathematical analysis as to the requisite degree of weight to be attributed to any one factor bearing upon the ultimate decision whether to grant a stay of proceedings. Each case is different and all relevant matters fall to be considered in the unique circumstances of the case, taken as a whole.
[13]
Ground 3
There is an obvious overlap between the first proposed ground of appeal, which has already been addressed, and the third proposed ground of appeal which was that:
"the primary judge erred in failing to consider whether the circumstances of the Applicant's mental impairment and the disadvantages arising from the delay were productive of unacceptable unfairness and whether, having regard to the likely outcome of the special hearing, there remained a sufficient public interest in the proceedings continuing." (Emphasis added.)
The italicised words effectively repeated the Applicant's complaint that the primary judge illegitimately compartmentalised his consideration of the significance of the Applicant's mental impairment (treating it under the rubric of Subramaniam) and the significance of the delay in bringing the proceedings. For the reasons given at [57] above, the primary judge's reasons do not bear that submission out.
With regard to that part of proposed appeal Ground 3 expressed as - "and whether, having regard to the likely outcome of the special hearing, there remained a sufficient public interest in the proceedings continuing" - Mr Pararajasingham identified that this language was taken from the decision of a majority of the Victorian Court of Appeal in McDonald v R [2016] VSCA 304; (2016) 263 A Crim R 356 at [46] (McDonald). This formulation was referred to without demur by Emerton JA (as the President then was) in Pound v R [2019] VSCA 279; (2019) 280 A Crim R 109 at [37] (Pound).
In their joint judgment in McDonald at [46], Redlich JA and Beale AJA did not cite any authority in support of the formulation which referred to "the likely outcome of the special hearing". That aspect of the formulation in my view, and with respect, is problematic. Prognostications as to the likely outcome of any hearing, let alone a special hearing, are inappropriate on a stay application which should not involve a "mini-trial" or assessment of the strength of a case unless, exceptionally, it is contended that a case is so hopeless that it is liable to be summarily dismissed or struck out and constitutes an abuse of process for that reason: Batistatos at [49] citing Ridgeway v The Queen (1995) 184 CLR 19 at 74-75; [1995] HCA 66 and Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42.
Equally, in my view, while public interest considerations play a role in the stay calculus, including the strong public interest in seeing charges for serious offences prosecuted and determined, whether the continuation of proceedings is in the public interest has never been, to my understanding, an established test or criterion for the grant of a permanent stay of proceedings. Such a formulation is apt to undermine the exceptional nature of this interlocutory remedy which authority at the highest level has continually emphasised: see, for example, Jago at 31, 76; Williams v Spautz (1992) 174 CLR 509 at 529; [1992] HCA 34; Walton at 388.
[14]
Ground 4
The Applicant's fourth ground of appeal raises, in my opinion, an issue of principle but not one which carried with it "the possibility or likelihood of substantial injustice", to use the language of Allsop P in DAO at [76] or one which was "apt to cause irregularity or injustice", to use another familiar formulation: see [47] above.
The issue of principle related to whether the primary judge erred by applying an improper balancing test when considering the specific prejudice occasioned to the Applicant. This criticism was directed to a number of passages in the primary judgment where his Honour accepted that there would be prejudice to the Applicant because of the loss of evidence or the unavailability of a witness (through death or lack of capacity) but pointed to corresponding disadvantage for the Crown.
First, the Applicant pointed to the following reasoning of the primary judge at PJ [91] in relation to the unavailability of AM's sister, Christine, who died in 1999:
"…Whilst Christine may [have] been in a position to give relevant evidence of complaint, any forensic disadvantage to the applicant arising from that fact must be weighed against the potential lost opportunity for the Crown to call such evidence of complaint to support AM's allegations."
Second, the Applicant relied on the statement by his Honour at PJ [95] that although "there might be some forensic disadvantage to the applicant from the absence of these witnesses", namely AM's sister and her mother who is also deceased, "the Crown is denied the opportunity to call complaint evidence from either of these witnesses to either corroborate AM's evidence or otherwise support her creditability (sic.)."
The Applicant also pointed to PJ [102] where the primary judge reasoned in respect of the absence of any statement from FC's mother, who has since developed dementia, that "any forensic disadvantage from the absence of complaint [evidence] must be weighed against the Crown's loss of opportunity to call complaint evidence."
Finally, the Applicant relied on the primary judge's reasoning at PJ [113] in relation to the absence of statements from FC's mother and sister-in-law, the latter of whom is now deceased:
"The applicant refers to FC's reporting of the alleged conduct to her mother and sister-in-law. As previously observed, to the extent FC reported the conduct to those witnesses it could not be said it was in any detail. In any event, as previously observed, the death of these witnesses also prevents the Crown from leading potential complaint evidence."
[15]
Ground 5
Proposed Ground 5 is simply conclusory and adds nothing to the other proposed grounds of appeal.
[16]
Conclusion
For all of the above reasons, I would refuse leave to appeal.
HARRISON CJ at CL: I have had the considerable advantage of reading in draft the reasons of the Chief Justice. I agree with his Honour and with the order he has proposed.
CHEN J: I agree with the Chief Justice.
[17]
Amendments
14 August 2024 - At [12], "metal" changed to "mental".
Minor change made to pinpoint paragraph references at [14] and [30].
At [49], minor typographical error in quote.
At [62], minor typographical error in citation.
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Decision last updated: 14 August 2024
Although the application for a permanent stay of the prosecution was originally listed for 27 March 2023, it was deferred to enable the Applicant's fitness to stand trial to be assessed for the purposes of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act). An expert report concerning the Applicant's fitness to stand trial was obtained by both the Applicant's solicitors and the Crown. Both experts agreed that the Applicant was unfit to stand trial on the indictment.
On 27 March 2023, Hopkins DCJ found the Applicant unfit to stand trial on the indictment pursuant to s 36 of the MHCIFP Act. As a consequence, the Applicant was to be tried by way of special hearing in accordance with s 56 of the MHCIFP Act. Section 56(4) provides that "[t]he fact that the defendant has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation."
By a Notice of Motion filed on 5 June 2023, the Applicant reagitated his application for a permanent stay of the prosecution. The application was brought on the basis that the proceedings would be an abuse of process due, first, to the Applicant's cognitive impairment which it was argued would irredeemably compromise his ability to engage in the criminal process and second, the substantial delay between the date of the allegations and the special hearing which it was submitted would result in presumptive and specific prejudice to the Applicant that could not be ameliorated by the modification of court processes to facilitate the effective participation by the defendant in the special hearing pursuant to s 56(2) of the MHCIFP Act. It was also contended that the decision not to pursue a prosecution in 1998, following the initial complaints, resulted in (a) an inherent unfairness in effectively re-instigating a prosecution in 2021; and (b) a forensic disadvantage to the Applicant by reason of the loss or destruction of evidence.
On 17 August 2023, following a hearing which took place on 5-7 June and 21 July 2023, the primary judge dismissed the application for a permanent stay of the proceedings.
His Honour then considered the statutory regime provided for by the MHCIFP Act, referring to ss 54, 56, 59, 62 and 63 of that Act: PJ [51]-[56].
Interpolating here, and as observed in Subramaniam v R [2004] HCA 51; (2004) 79 ALJR 116 (Subramaniam) at [28] with regard to the predecessor statutory regime to Pt 2 of the MHCIFP Act:
"…One important purpose of the Act is an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end. It is also no doubt another purpose of the Act that a special hearing actually take place, and that victims be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done. This purpose is secured not only by the holding of the special hearing, but also, in an appropriate case, by the pronouncement of a 'limiting term' of imprisonment that would have to be served if the person had been tried in the normal way. It is self-evident that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings, will have its deficiencies. But no system of justice is perfect. Neither the deficiencies of a special hearing under the Act, nor the other matter which was referred to in submissions, that the Act reposes expansive and wide discretions in the State Attorney-General, provides reason to construe and apply the Act otherwise than according to its tenor." (Emphasis added.)
Where a bespoke statutory regime has been supplied by the legislature which has implicit in it that an accused is not fit to stand trial, there is an obvious tension between the existence of such a regime and an attempt to take advantage of the very reason for its engagement as a basis permanently to stay the proceedings that the regime contemplates. Such a point was made by Spigelman CJ in R v WRC (2003) 59 NSWLR 273; [2003] NSWCCA 394 (WRC) at [59]-[60]. Notwithstanding this, but exceptionally, the High Court in Subramaniam observed at [35], by way of a double negative, that:
"… This is not to say that notwithstanding the manifest purposes of the Act, there may not still be cases of mental infirmity calling for the grant of a stay even of the special hearing for which it provides although instances of them are likely to be rare. This is so for two reasons: the Act does not, expressly or by implication, forbid their application; and, common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave." (Footnotes omitted.)
Returning to the reasons, the primary judge commenced his consideration of the stay application by noting (at PJ [57]-[58]) that:
"The Crown fairly acknowledged that the cognitive health of the applicant was a matter to be taken into account in deciding whether to grant a permanent stay, and that his infirmity is to be given its full weight on the stay application... Further the Crown accepts that it is necessary for the court to consider the combined circumstances of the applicant's mental infirmities and the disadvantages arising from the delay in considering whether such circumstances produce an unacceptable unfairness to the applicant ...
However, the Crown contends that these issues need to be considered bearing in mind the applicant is to be tried by way of a special hearing; that the principles enunciated by the High Court in Subramaniam v R [2004] HCA 51, as recently applied by the New South Wales Court of Criminal Appeal in Kitchingman v R [2023] NSWCCA 4, must be followed."
In Subramaniam, referring to a number of decisions in this Court including R v Hakim (1989) 41 A Crim R 372 (Hakim) and WRC, the High Court adopted (at [31]) a "common humanity" test for determining a stay of proceedings in circumstances where those proceedings involved a special hearing. The test was expressed as whether, in light of the applicant's deteriorating condition, it "would be out of accord with common humanity" to allow the special hearing to proceed.
The primary judge noted but rejected the Applicant's argument that the common humanity test as adopted in Subramaniam was inapplicable where an applicant relies additionally upon forensic disadvantage arising from delay, stating that "[w]hilst acknowledging the appellant in Subramaniam only relied upon her deteriorating mental health, no such distinction, as contended for by the applicant is made by the High Court": at PJ [73].
If his Honour had concluded that the continuation of the proceedings would have been contrary to common humanity, they would have been stayed for that reason alone. Additional considerations of the impact of delay and any prejudice occasioned thereby would not have needed to be considered. However his Honour did not so conclude and there was no challenge to that conclusion in this Court. Importantly, at PJ [78], the primary judge recorded and accepted the Applicant's submission that:
"determination of whether a permanent stay should be granted is not to be undertaken in a bifurcated fashion, in that it is necessary to consider all the circumstances of the prosecution, including the consequences of the substantial delay in the prosecution of the applicant."
His Honour then turned to consider at some length the alleged forensic disadvantage arising from the delay in the prosecution, working systematically through the 12 counts on the indictment: PJ [87]-[118]. Some disadvantages were obvious, including the death of one of the complainants' mothers (who featured regularly in her accounts of the alleged offending) as well as the deaths or unavailability of other family members who were said to have been present on various occasions during which the alleged offending occurred albeit not in the immediate vicinity of the places where the alleged offending was said to have occurred.
The primary judge's conclusions in this regard were summarised at PJ [115]-[118] as follows:
"It is hardly surprising, given the offences are to [sic.] alleged to have occurred so many years ago, that some relevant evidence is no longer available, and that witnesses who may have potentially provided relevant evidence have died. As the discussion above demonstrates, the significance of lost evidence, or the relevance of potential witnesses, varies. In some respects, the claimed lost evidence is largely speculative.
However, as the High Court observed in Edwards 'the fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair'.
In any event, at any judge alone trial, the judge, if satisfied that the applicant had suffered a significant forensic disadvantage due to the delay, could give himself or herself a direction in accordance with s 165B of the Evidence Act 1995. The effect of any such direction could go some way to ameliorating any forensic disadvantage by reason of the delay of the prosecution: Gardiner v R [2023] NSWCCA 89 per Adamson JA at [110].
Having carefully considered the applicant's submissions in respect to the alleged forensic disadvantage arising from the delay, I am not satisfied that the absence or unavailability of such evidence, either singularly or cumulatively, would result in the applicant receiving an unfair trial such that any conviction would bring the administration of justice into disrepute. I am not satisfied the absence or unavailability of evidence, either singularly or cumulatively, is such as to cause the proceedings to be permanently stayed."
Under a separate heading, "The failure to bring charges or properly investigate the allegations in 1997", the primary judge, after a further detailed consideration of the evidence and case law that was relied upon, expressed the view that he was "not satisfied that the decision to now prosecute the applicant falls within the category of a defect in the prosecutorial process, let alone one that is so profound such as to offend the integrity and functions of the court": PJ [136].
His Honour's conclusion was expressed in the following four paragraphs:
"[137] For the reasons already given I am not satisfied that the applicant's impaired cognitive function and/or presumptive and/or specific prejudice arising from the delay in bringing the prosecution is such that a permanent stay of prosecution should be granted. Further I am not satisfied that the decision to now prosecute the applicant, having previously determined not to proceed, is such that a stay ought to be granted.
[138] In any event, fairness to the applicant, whilst an important consideration, is not the only relevant factor. In considering whether a permanent stay ought to be granted it is also necessary to take into account the substantial public interest in having those who are charged with serious criminal offences brought to trial: Dupas at [37]; Jago at 33; Gardiner at [107].
[139] The two complainants have alleged that the applicant repeatedly, and over a protracted period, committed serious offences of a sexual nature, some involving digital and penile penetration. There is a substantial public interest in having the applicant brought to trial in respect to the charges arising from the allegations made by the two complainants.
[140] I am not satisfied that the continued prosecution of the applicant is such as to cause the administration of justice to fall into disrepute. I am not satisfied that the continuation of the prosecution of the applicant would involve an unacceptable injustice or fairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process." (Emphasis added.)
The language of PJ [140] echoes the various tests or descriptions of what may amount to an abuse of process that have emerged in a series of High Court decisions that I catalogued in Moubarak at [71]. Such "tests" or formulae have been articulated in relation to both criminal and civil proceedings and, while they have (at least prior to GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (GLJ)) been treated as equally applicable in both civil and criminal proceedings, the procedural and forensic contexts of civil and criminal proceedings of course differ, including where, as in the present case, the special hearing regime under the MHCIFP Act is engaged (as noted by Basten JA in Kitchingman v R [2023] NSWCCA 4 at [23] (Kitchingman)), and by reason of the applicable standards of proof and the operation of the presumption of innocence in criminal proceedings.
I note parenthetically that Leeming JA has respectfully suggested that, as a result of the majority decision in GLJ, there may be a degree of incoherence between the approach to be taken in respect of applications to stay civil proceedings for institutional as opposed to private or other domestic sexual abuse claims and, more generally, between the approach to be taken in relation to applications for stays of civil claims that do not engage the operation of s 6A of the Limitation Act 1969 (NSW), and those that do: see CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313 at [88]-[90].
In an earlier decision, Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [48]-[49], Gageler J explained that the applicability of the "correctness standard" depends on whether the legal criterion admits a "unique outcome" rather than a "range of outcomes", noting that the standard of review is not determined by whether the required reasoning is "evaluative": see also, Sun v Chapman [2022] NSWCA 132 at [8] and Soulos v Pagones [2023] NSWCA 243 at [322].
In its submissions in this Court, the Crown acknowledged that GLJ concerned the Court's power to permanently stay civil proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) and that there is a line of authority in which the power of the Court to permanently stay criminal proceedings has been described as "discretionary" and the applicable standard of appellate review identified as House v The King error: see, for example, Jago at 31, Kitchingman at [31] and BTU v R [2023] NSWCCA 36 at [14]. It was submitted, however, that the reasoning in GLJ in relation to the appropriate appellate standard of review was not, and should not be, confined to civil proceedings. I agree and note that, in Director of Public Prosecutions (Cth) v Knopp [2023] VSCA 315 at [165], the Victorian Court of Appeal took the same view, holding that, although GLJ concerned a civil proceeding, there was "no reason in principle" why the correctness standard would not also apply to criminal proceedings in which a permanent stay was sought.
It follows that, to this extent, the reasons of Payne JA in Derley v R [2016] NSWCCA 60 at [50]-[52], cited in turn by Basten JA in Kitchingman at [31], must be qualified insofar as they referred to a decision whether or not to grant a stay as involving an exercise of discretion, with the necessary implications of that fact for the nature of appellate review. So, too, to the extent that the High Court's previous decisions involving permanent stays of proceedings characterised them as discretionary (see, for example, those decisions cited at [29] above), that characterisation must no longer be regarded as correct.
Identification of the correctness standard as the applicable standard for review of first instance decisions in relation to stay applications, involving as they do evaluative intuitive judgment, means that any appeal following the grant of leave to appeal is by way of rehearing, as the High Court noted in GLJ at [27].
On such a rehearing, the appellate court is required to decide the case for itself, with limited deference to the reasons of the trial judge in circumstances where he or she has enjoyed a significant advantage over the appellate court in the making of findings of fact or the drawing of inferences, including as to credibility of witnesses. The key passage from Warren v Coombes at 552 bears repeating:
"The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment."
As this Court observed in Rogerson v The Queen [2021] NSWCCA 160; (2021) 290 A Crim R 239 at [548] (Rogerson):
"in applying the correctness standard of appellate review, an appellate court may be subject to 'natural limitations' that exist when such an exercise is undertaken… These may include the lack of the advantage enjoyed by a primary judge in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole..."
See also R v Passmore (2021) 110 NSWLR 292; [2021] NSWCCA 201 at [29].
Very often the nature of a stay application will not involve cross-examination of witnesses and the appellate court will by and large be in the same position as the primary judge who heard the application at first instance. In the present case, however, the stay application ran for some 4 days and involved a wealth of material, including expert reports, which the primary judge was taken through in detail and carefully considered as a whole, an advantage which this Court necessarily did not share.
The task of appellate review of a decision whether to grant a permanent stay of proceedings by reference to the correctness standard is very different from that of an appellate court reviewing a discretionary decision, where a strong measure of deference is built into the House v The King test for review with a corresponding constraint in terms of appellate interference.
Application of the correctness standard also has implications for the formulation of grounds of appeal. As this Court observed in Rogerson at [551]:
"If the correctness standard of review applies, it is for this Court to make the requisite evaluative judgments as part of its appellate function, and shortcomings of or in the reasoning of the trial judge recede in importance."
It follows that grounds of appeal expressed in terms of the "weight" the primary judge either improperly gave or failed to give to a particular factor in reaching his or her decision have little or no relevance for a Court which is required "to decide the case for itself". The reasoning of the primary judge, other than in relation to those areas where the primary judge has enjoyed some special advantage in the Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 sense, diminishes in significance on such a review.
It is important to remember that the fact that the appellate court must decide the matter for itself does not mean that the appeal is an appeal de novo. Notwithstanding application of the correctness standard, it is open to an appellate court to endorse some or all of the primary judge's reasoning and adopt unchallenged intermediate findings of fact when it agrees with that reasoning or those findings.
Various tests have been formulated for the grant of leave to appeal in the context of an interlocutory decision in criminal proceedings. In DAO at [76], Allsop P spoke of the need for "demonstration of error of principle (with a sufficient degree of clarity) as well as the possibility or likelihood of substantial injustice" (emphasis added). The then President also added that "leave can be refused even if an error of principle has been disclosed". Other judges have spoken of the need to show "an error of principle apt to cause irregularity or injustice" (emphasis added): O'Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19 at [48] quoting R v Van Phu Ho (Court of Criminal Appeal (NSW), 18 July 1994, unrep) (Mahoney JA, Gleeson CJ and Dunford J agreeing); Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 at [25]; Rosamond v R [2022] NSWCCA 251 at [7].
In the context of leave to appeal from interlocutory decisions in civil proceedings, the Court of Appeal employs the test of whether there is "an injustice which is reasonably clear in the sense of going beyond [what is] merely arguable", a question of public importance or a "question of principle": Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
Without seeking to fetter the discretion relating to the grant of leave to appeal pursuant to s 5F, it may be that formulations such as that the interlocutory decision "is not attended by sufficient doubt as to warrant the grant of leave to appeal" (R v Steffan (1993) 30 NSWLR 633 at 644-645) or "where the interests of justice would require the granting of leave to appeal even in the absence of some specific error" (R v Matovski (1989) 15 NSWLR 720 at 723; Dinh at [34]), as referred to in Agius at [10], are expressed at a level of generality that does not sufficiently reflect the necessary filter which the leave requirement and the policy considerations that underpin it is designed to serve. Applications for leave to appeal pursuant to s 5F of the Act should be formulated with the criteria set out in the cases noted at [47] in mind.
Of course, where an interlocutory decision arises in criminal proceedings which involves a matter of public importance or an issue or issues where there are conflicting decisions at either first instance or appellate levels (see, for example, DAO at [18]; Maules Creek at [74]), an appellate court may be more inclined to grant an application for leave to appeal under s 5F of the Act.
A proposed ground of appeal that complains that the primary judge erred in the weight he or she gave or failed to give to a certain matter is unlikely to attract the grant of leave to appeal. So also, criticism of the application of a correctly identified principle to the facts is unlikely to attract a grant of leave to appeal from an interlocutory decision unless it can be shown to have resulted in a reasonably clear injustice going beyond something that is merely arguable.
Given that the decision whether to grant leave to appeal may be affected by a consideration of whether a substantial injustice would result if leave were not granted, it is convenient to refer to the summary of principles relevant to the grant of a permanent stay of criminal proceedings in La Rocca v R [2023] NSWCCA 45 at [34]:
"(i) the remedy is an extraordinary one, only to be given in exceptional or extreme circumstances: R v Glennon (1992) 173 CLR 592 at 605; [1992] HCA 16 (Glennon); Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [33]-[35] (Dupas); Strickland at [166];
(ii) such a description recognises the powerful social imperative for those who are charged with criminal offences to be brought to trial: Strickland at [106], see also at [166]-[167], [262];
(iii) notwithstanding this, the categories or circumstances in which the exceptional remedy of a permanent stay of criminal proceedings may be granted are not and should not be closed: Strickland at [99];
(iv) there is no 'definitive category' of extreme cases: Dupas at [35];
(v) each case accordingly must be decided according to its own facts: Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti) at [60]; Strickland at [99], [246], [261];
(vi) a permanent stay of criminal proceedings may be appropriate where to refuse such a remedy would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42; Moti at [10];
(vii) the administration of justice may be brought into disrepute in a number of different ways;
(viii) one example which may warrant a permanent stay is the toleration of an unfair trial where there is a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences": Barton v The Queen (1980) 147 CLR 75 at 111; [1980] HCA 48; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; [1989] HCA 46; Glennon at 605-606; Dupas at [35] …"
These principles must be supplemented in the present case by reference to the decision in Subramaniam and the fact that the proceedings sought to be stayed are a special hearing. There is no suggestion in the MHCIFP Act that the established principles do not apply to a special hearing under Pt 2 of that Act although the significance of an individual's capacity (mental or psychological) to participate in a hearing is plainly different between a case where a person has been determined not to be fit for trial in criminal proceedings for the purposes of the MHCIFP Act regime and a civil claim where a defendant is labouring under a similar mental incapacity, such as was the case in Moubarak.
Bearing these considerations and the language in which proposed appeal Ground 3 is formulated in mind, I would refuse leave to appeal on that ground.
It was submitted by Mr Pararajasingham that, while the decision whether to grant a permanent stay does involve elements of weighing competing considerations such as the desirability of serious criminal allegations being determined against any unfairness to an accused person that delay in bringing proceedings may entail, that did not extend to weighing forensic disadvantage to an accused against forensic disadvantage to the Crown on account of lost or impoverished evidence. In other words, the submission ran, it was no part of the inquiry whether the Crown may also be prejudiced by delay in the prosecution. It was the Director's decision to prosecute and make an assessment as to whether she was armed with sufficient material to sustain a verdict beyond reasonable doubt. The focus on prejudice from a paucity or degradation or disappearance of evidence should be wholly on that accruing to the accused.
I agree with this submission. Prejudice to an accused occasioned by way of delay in bringing a prosecution is not to be regarded as neutralised by corresponding prejudice to the Crown for the purposes of determining an application for a stay of proceedings. Otherwise, the significance of real prejudice to an accused will frequently, if not invariably, be illegitimately diminished.
Having said that, I do not consider that, to the extent that the primary judge engaged in this type of reasoning, his doing so gave rise to a material error (cf. Finniss v New South Wales [2023] NSWCA 292 at [86]-[87]) or that his decision was apt to cause an injustice. Many of the examples of prejudice relied upon by the Applicant were, as the primary judge observed, speculative, and in any event, as the authorities to which the primary judge referred point out, a fair trial does not equate to a perfect trial.