[1939] HCA 23
Brennan v Comcare (1994) 50 FCR 555
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
[1935] HCA 45
Davis v Gell (1924) 35 CLR 275
[1924] HCA 56
Dawson v R [2021] NSWCCA 117
Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520
DSJ v The Queen
[1911] HCA 31
Garde v Dowd (2011) 80 NSWLR 620
Source
Original judgment source is linked above.
Catchwords
[1939] HCA 23
Brennan v Comcare (1994) 50 FCR 555
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541[1935] HCA 45
Davis v Gell (1924) 35 CLR 275[1924] HCA 56
Dawson v R [2021] NSWCCA 117
Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520
DSJ v The Queen[1911] HCA 31
Garde v Dowd (2011) 80 NSWLR 620[2011] NSWCA 115
GAS v The QueenSJK v The Queen (2004) 217 CLR 198[2004] HCA 2
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Griffiths v The Queen (177) 137 CLR 293[1977] HCA 44
Group Seven Ltd v NasirEquity Trading Systems Ltd (formerly Lam Ltd) v Notabie Services LLP [2020] Ch 129[2019] EWCA Civ 614
India v India Steamship Co [1993] AC 410
Island Maritime Ltd v Filipowski (2006) 226 CLR 328[2006] HCA 30
Jamieson v The Queen (1993) 177 CLR 574[1993] HCA 48
Jenkins v Director of Public Prosecutions [2013] NSWCA 406
Kentwell v The Queen (2014) 252 CLR 601[1996] HCA 46
Meakes v Dignan (1932) 46 CLR 73[1998] HCA 57
Price v Spoor (2021) 270 CLR 450
[2011] NSWCCA 247
R v MAJW (2007) 171 A Crim R 407
[2007] NSWCCA 145
R v Maxwell (1994) 34 NSWLR 606
R v Nwanokwu [2015] 2 Cr App R (S) 33
R v McCarthy (2015) 89 NSWLR 155
[2015] NSWCCA 76
R v [SJ] [2023] NSWDC
R v Swingler [1996] 1 VR 257
R v Townsend [1997] 2 Cr App Rep 540
[2017] HCA 3
RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305
Ridgeway v The Queen (1995) 184 CLR 19
[1995] HCA 66
Rogers v The Queen (1994) 181 CLR 251
[1994] HCA 42
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325
[2018] HCA 53
Thalari v The Queen (2009) 75 NSWLR 307
[2009] NSWCCA 170
The Queen v Carroll (2002) 213 CLR 635
[2002] HCA 55
The Queen v Latf [1996] 1 All ER 353
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
[2015] HCA 28
Tonari v The Queen (2013) 237 A Crim R 490
[2013] NSWCCA 232
Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132
[2023] HCA 11
Warren v Coombes (1979) 142 CLR 531
[1979] HCA 9
Wishart v Fraser (1941) 64 CLR 470
Judgment (14 paragraphs)
[1]
Background
The background to the present application, drawn from the respective parties' submissions and material relied upon in the present application, can be summarised as follows.
The applicant, a director and shareholder of two companies, Marlinspike Debt Acquisitions Pty Ltd and Quick Collect Pty Ltd (companies that apparently acted as debt collection entities), was the subject of a police investigation in January 2018 and was arrested on 7 May 2018 (see Court Attendance Notice and Fact Sheet). The police investigation related to allegations concerning moneys garnished following civil proceedings commenced by the respective companies in the Local Court purportedly for the collection of debts.
On 8 May 2018, the applicant was charged by court attendance notice filed in the Local Court with two offences contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (Crimes Act) (dishonestly obtaining an advantage by deception). The offending conduct concerned two sets of civil proceedings commenced in the Local Court.
In the first set of civil proceedings (the subject of the first s 192E(1)(b) charge) (the Marlinspike proceedings), the applicant filed statements of claim via the online registry for debt collection proceedings, seeking judgment in the sum of $75,931. In the second set of civil proceedings (the subject of the second s 192E(1)(b) charge) (the Quick Collect proceedings), the applicant filed statements of claim for debt collection proceedings, seeking judgment in the order of $10,000. The Crown alleged that in each case the applicant made false representations in applications for default judgment to the effect that he had served the respective defendants with a statement of claim (when he knew that originating process had not been served on the defendants). After entry of default judgment in the proceedings, the applicant subsequently applied for and obtained garnishee orders. The Crown alleged that the first notice that the defendants received about the proceedings was after moneys had been garnisheed from their bank accounts.
On 18 May 2018, the applicant filed an application in the Local Court for the permanent stay of the Local Court criminal proceedings. The stay application was based on the proposition that the facts alleged (even if proved) did not amount to an offence under s 192E(1)(b) of the Crimes Act and that the charges were foreclosed by reference to Jamieson v The Queen (1993) 177 CLR 574; [1993] HCA 48 (Jamieson) per Deane and Gaudron JJ and R v Jurca (1986) 6 NSWLR 491 (Jurca) per Herron DCJ. Those decisions were relied upon for the proposition that there was immunity for statements made in the course of the civil proceedings.
The applicant says that from the time he was arrested he elected to have the matter determined on indictment because he wanted the police prosecutors "out of it" (see AT 14.24-25).
The applicant emphasises that from May 2018 he consistently raised the issue as to "Jamieson immunity" (on which his 18 May 2018 stay application was based), referring to communications on 27 July 2018, 9 August 2018, 17 August 2018, 4 September 2018, 6 September 2018 and 7 September 2018 and says that his repetition of Jamieson is the number one feature of oppression in this case (see AT 7.29-30). The prosecution's position was that Jamieson and Jurca were not applicable in the circumstances of this case.
In September 2018, the prosecution decided to reformulate the charges in each of the cases so as to replace the then current charges with one rolled-up charge of perverting the course of justice (by falsely representing to the Court that he had served the statements of claim) and, in the alternative, a number of charges as to the making of false statements.
On 12 September 2018, the applicant was advised by email of that decision, namely that the current sequences would be replaced with two counts of doing an act with the intention of perverting the course of justice contrary to s 319 of the Crimes Act and, in the alternative, one count of dishonestly publish a false statement with intent to obtain a financial advantage contrary to s 192G(b) of the Crimes Act and 12 counts of dishonestly making a false statement with intent to obtain a financial advantage contrary to s 192G(b) of the Crimes Act. Fresh Court attendance notices were then issued.
Relevantly, the email of 12 September 2018 also contained the following "without prejudice" offer:
Without prejudice, I hereby offer that the prosecution will accept pleas of guilty in full satisfaction to a total of two rolled up counts under s 192G(b) Crimes Act, being between the dates pertaining to each civil proceedings, that the defendant dishonestly made a false statement to the Local Court, namely that he had served on the defendants the Statement of Claim, with the intention of obtaining a financial advantage, namely a default judgment. These two counts will be finalised summarily on the plea.
The applicant commenced proceedings in the Supreme Court, filing a summons seeking orders including a declaration that the prosecutions for the s 192G(b) offences were foreclosed by reason of the immunity rule in Jamieson. It appears that this summons ultimately was not pursued by the applicant, although its exact fate is unclear.
On 13 September 2018, when the matter came before the Local Court, the applicant sought and obtained an adjournment of the proceedings.
There was further correspondence from the applicant asserting that the charges were invalid on 14 September 2018 and 17 September 2018. The matter came back before the Local Court on 20 September 2018 when the applicant formally elected not to proceed summarily and the matter was adjourned by consent to 11 October 2018 (see affidavit affirmed 3 April 2019 of Claire Moore, a solicitor employed in the Office of the Director of Public Prosecutions (ODPP), at [8]).
On 11 October 2018, when the matter was back before the Local Court, the applicant applied for an adjournment of the Local Court proceedings. That application was refused by Kennedy LCM (11/10/18; T 4.43-45). The Crown on that occasion raised concern as to the fragmentation of the criminal proceedings (11/10/18; T 2.1-8).
Ms Moore has deposed to a conversation with the applicant when the matter was listed on 11 October 2018 for committal and before it came before Kennedy LCM (see at [10]-[11] of her affidavit affirmed 3 April 2019) as to the issue of a plea, in which Ms Moore deposes that she informed the applicant that if he was considering pleading (guilty) then the prosecution would accept summary jurisdiction as previously indicated by email (no doubt referring to the 12 September 2018 email).
Ms Moore has further deposed (see at [13]-[14] of her affidavit) to receipt of an email on 22 October 2018 from the applicant in which he indicated that he had taken legal advice and wished to accept the plea offer of 12 September 2018 and to a further email of that date with the subject heading "Plea Agreement" (copies of those emails are not in the Appeal Book).
On 24 October 2018, the applicant sent an email to Ms Moore (with the subject heading "Jurca Problem") urging her to consider whether the charges should be withdrawn "because if they are eventually dismissed, quashed or there is a successful no case to answer submission then I will pursue costs and civil remedies". Ms Moore has deposed to receipt of emails from the applicant on that date indicating that he was challenging the validity of the s 192G charges and was prepared to have a summary hearing on the pervert the course of justice charges; and that he could not accept the plea offer "under the current facts" (see her affidavit affirmed 3 April 2019 at [15]-[16]). Ms Moore's response on that same day expressed surprise at the 24 October 2018 email from the applicant given that he had already written to her indicating he was accepting a previous plea offer. (Pausing here, this email belies the contention made in oral submissions by the applicant in this Court to the effect that the Crown knew at the relevant time that the applicant intended to appeal his conviction on the charges to which he pleaded guilty - see AT 8.34, 11.48, 29.21)
On 29 October 2018, the applicant entered pleas of guilty in the Local Court to the two "rolled-up" s 192G(b) charges and the prosecution withdrew the balance of the charges. Ms Moore has deposed (see at [20] of her affidavit) that the applicant told her outside court (before the plea was entered) that he was pleading guilty in line with the plea offer. The applicant's version of that conversation is contained in an email he sent to Ms Moore over a year after the plea was entered, on 12 December 2019, in which the applicant states that Ms Moore gave him a positive undertaking that if he did plead guilty to the two charges under s 192G, all prosecutions of this matter would stop. Similarly, in his affidavit sworn 21 May 2023 in the District Court proceedings, the applicant deposes that Ms Moore promised him as part of the plea bargain that the charges under s 319 of the Crimes Act would never be reinstated (see at [5]).
While the applicant here seeks to rely on the lack of a challenge by the Crown to his version of the conversation that occurred on 29 October 2018, he accepts that there are competing (or duelling) versions of what was said and that neither has been tested in cross-examination (see AT 4.30-6.24). The applicant also accepts that the conversation at [20] of Ms Moore's affidavit is the same conversation the subject of his 12 December 2019 email (AT 6.41) and that he did say he was accepting the plea in line with the plea offer (AT 6.48).
In the email of 12 December 2019, the applicant stated his position as being that the plea bargain did not oust his right to appeal his conviction and foreshadowed a major dispute as to whether the ODPP was in breach of its agreement if it commenced any further criminal prosecution. The applicant stated that "[t]he DPP could have chosen to accept my argument as to Jamieson and then conduct the two perverting course of justice charges could have been reinstated [sic]. It conducted the prosecution in the wrong way".
The applicant accepts that he did not indicate to Ms Moore at the time of the plea offer that he intended, after the plea was entered, to appeal his convictions; his immediate response to this question from the bench being that Ms Moore "never asked" him (see AT 7.36; 8.21).
Meanwhile, the applicant says that in January 2019 he corresponded with the ODPP as to a stay of the proceedings and the prosecution's response was that he should seek to withdraw the plea. The applicant, who refers to a 9 February 2019 hearing seeking a permanent stay (see AT 9.1-4), says that from January to June 2019 he experienced the "theatre of being faced with an unlawful sentencing" (AT 9.15-16).
On 13 February 2019, the matter was listed in the Local Court for a disputed facts hearing. On that occasion, the applicant informed the Court that he sought a permanent stay of the proceedings. The ODPP solicitor advised the Court that, if the applicant's pleas were permitted to be withdrawn, she would seek that the matter be stood in the list so that court attendance notices could be prepared to charge the applicant again with the s 319 charges which had been withdrawn upon the entry of the guilty pleas. The applicant was thus on notice from an early stage that if the guilty pleas were withdrawn the prosecutor's intention was to reinstate the fraud charges.
On 4 April 2019, Greenwood LCM refused an application by the applicant to withdraw his guilty pleas.
On 15 May 2019, the applicant (having unsuccessfully sought in the Common Law Division a stay of proceedings in the Local Court and also for the determination of a separate question - see [39]-[40] of the decision of Adamson J, as her Honour then was, in Sayer-Jones v Director of Public Prosecutions (NSW) [2019] NSWSC 1615 ([SJ] v DPP)), the applicant withdrew his request in the Local Court for a disputed facts hearing.
On 3 June 2019, the applicant advised the Local Court and the ODPP that he did not dispute the facts (but only the relevance of them and the use to which they could be put).
On 7 June 2019, convictions were entered in the Local Court in relation to the applicant's guilty pleas in respect of the s 192G offences. Greenwood LCM sentenced the applicant to an effective sentence of 12 months' imprisonment, to be served by way of an intensive corrections order.
On 10 April 2019 - before convictions had been entered - the applicant had commenced proceedings in the Supreme Court, filing a summons under s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act), seeking to appeal his convictions and sentence in the Local Court. That matter was heard by Adamson J, then sitting in the Common Law Division, doing so after convictions had been entered.
On 21 November 2019, Adamson J ordered that the convictions be set aside, finding that the relevant statements were made for the purposes of the Local Court civil proceedings and therefore were immune from prosecution under s 192G (see her Honour's 2019 judgment, cited above, at [78]); in essence upholding the applicant's argument for immunity based on Jamieson.
Her Honour concluded that the offences were not known to the law. In those circumstances, her Honour did not consider it appropriate to order an acquittal in respect of the charges, saying at [96]-[97]:
… as a consequence of the offences not being known to the law, it is not appropriate to order an acquittal, thereby making unavailable a plea of autrefois acquit. It is difficult to see any estoppel arising against the DPP in the present circumstances where the plaintiff has been the moving party in the present proceedings.
The question whether there is any impediment to the prosecution of the plaintiff for an offence which is available as a matter of law is, however, not one which ought presently be determined. I accept the DPP's submission that the question is presently moot. If, and when, it arises, it will be open to the plaintiff to move to strike out the charge or quash an indictment if he considers that he has grounds to do so. This Court ought not anticipate such a course, which might not arise. There are strong policy reasons why a court ought not intervene in the laying and prosecution of criminal charges.
In the course of her Honour's reasons, reference was made to the applicant's oral submissions when the possibility that he might be charged with a more serious offence under s 319 was raised, those including statements to the effect that "bring it on, charge me with it" and that "perverting the course of justice and perjury fit the allegations in this case like a glove" (see at [93]). The applicant was therefore alive to the possibility that he might face a prosecution in respect of the s 319 charges that had been withdrawn when his guilty pleas were entered to the s 192G charges (though he also foreshadowed a stay application were that to be the case). Her Honour (in obiter) observed that the foundation for the plea agreement had been removed by the setting aside of the applicant's convictions for the two s 192G offences (see at [95]).
An ex officio indictment, charging him in the District Court, was subsequently provided to the applicant but not until 25 February 2021. The applicant says that this indictment was only issued because he had written to the ODPP "saying please send me the brief" because he was applying for admission as a legal practitioner and wanted studiously to comply with his obligations of disclosure (see AT 9.29). The applicant describes the decision to proffer the further indictment as a "cruel blow" (adopting the language of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552; [1996] HCA 25), submitting that the Crown had created a legitimate expectation that he would not be prosecuted (AT 9.23). Nevertheless, as noted above, the prosecution had indicated at an early stage that the fraud charges would be reinstated if the guilty pleas were withdrawn and, when the matter was before Adamson J, the applicant appeared to relish the prospect of further proceedings (see above).
On 7 April 2022, King DCJ declined an application by the applicant for a permanent stay of the fresh (s 319) criminal proceedings. The applicant filed a s 5F appeal from that decision. An interlocutory application seeking a temporary stay of the trial proceedings was heard by this Court and a temporary stay was granted until such time as a full appeal could be heard and determined. The appeal was, however, abandoned. A subsequent s 5F appeal was filed in this Court but also subsequently abandoned (see the impugned judgment at [29]-[31]).
The criminal proceedings were ultimately listed for trial before Harris DCJ commencing on 5 June 2023.
When the trial commenced, the applicant was indicted (the first trial indictment), charged with the following two offences contrary to s 319 of the Crimes Act:
[1] Between 9 November 2017 and 15 December 2017, at Sydney in the state of NSW, did falsely represent to the Local Court of New South Wales in case number 2017/00333976 that he had served the Statement of Claim upon the defendants, with intent to pervert the course of justice in order to obtain a default judgment that would not otherwise have been entered.
[2] Between 26 March 2018 and 16 April 2018, at Sydney in the state of NSW, did falsely represent to the Local Court of New South Wales in case number 2018/0084331 that he had served the Statement of Claim upon the defendant's business premises, with intent to pervert the course of justice in order to obtain a default judgment that would not otherwise have been entered.
After an application for a verdict of acquittal by direction was refused on 7 June 2023, the trial judge determined on 13 June 2023 that the two counts on the indictment should be severed, such that the applicant then faced two trials.
The first trial was conducted before Harris DCJ from 15 June 2023 to 21 July 2023. The indictment dated 15 June 2023 (i.e., the second trial indictment) charged a single count (that being identical to count one on the first trial indictment). The jury returned a verdict of guilty and the applicant was convicted. It was during the course of this trial that the application for a permanent stay leading to the impugned judgment was made (see below). As noted, the applicant remains to be sentenced for this offence.
The second trial was conducted before Harris DCJ from 14 November 2023 to 29 November 2023. The indictment dated 31 October 2023 (i.e., the third trial indictment) duplicated count two on the first trial indictment but added particulars of the defendant referred to in the indictment. The jury returned a verdict of not guilty; and the applicant was acquitted and discharged. This has no ongoing relevance for the present application, although the applicant refers to the acquittal on this charge as something in support of his foreshadowed fresh application for a stay in the District Court if he succeeds on the present application.
On 24 January 2024, the applicant filed a notice of appeal from the decision made on 3 July 2023 by Harris DCJ, refusing a permanent stay of the proceedings. Thus, as noted above, an extension of time is required for the filing of the application for leave to appeal the stay decision (it being more than 14 days after the entry of the judgment or order - see r 3.5(4) of the Criminal Appeal Rules).
Since the hearing of this Notice of Appeal on 6 March 2024, at which judgment in the matter was reserved, the applicant has filed two fresh Notices of Appeal. The first of those, filed on 7 March 2024, is in respect of an interlocutory decision of the trial judge said to have been made on 22 February 2023. This appears to be a reference to the ruling by the trial judge on 22 February 2024 on a Crown application to set aside three subpoenas issued by the applicant relating to the sentencing proceedings. The trial judge determined that all three subpoenas should be set aside. The applicant seeks to appeal this decision, raising four grounds of appeal relating to alleged error in denying the appellant "the opportunity to present evidence at his sentencing hearing".
The second Notice of Appeal, filed on 20 March 2024, is an appeal against his conviction on 21 July 2023. That conviction was the culmination of the trial to which the present Notice of Appeal also relates. The applicant there relies on a single ground of appeal, alleging that a miscarriage of justice occurred due to deficiencies in the primary judge's summing up, specifically relating to an alleged failure to direct as to the distinction between non-receipt and non-delivery of postal articles.
[2]
Extension of time
Rule 3.5(4) of the Criminal Appeal Rules requires that a notice of appeal against an interlocutory judgment or order filed pursuant to s 5F of the Criminal Appeal Act must be filed within 14 days after the judgment or order is given or made. That period is considerably shorter than the period available to appeal a conviction or sentence. Any notice of intention to appeal must be filed within 28 days of the conviction or sentence: Criminal Appeal Act, s 10(1)(a). If such a notice has been filed, then the defendant has a further 12 months in which to file a notice of appeal against conviction or sentence: rr 3.1(3) and 3.5(2)(a). If no notice of intention to appeal has been filed, a defendant has three months to file an appeal: r 3.5(2)(b).
The Crown accepts that the Court has a broad discretion to extend time (referring to Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [12]) but notes that the overall prospects of success are relevant to the determination of the interests of justice on an application to extend time (Kentwell at [33]); and points to the lack of explanation for the delay. In fact, the relevant power to extend time referred to at [12] in Kentwell was that found in s 10(1)(b) of the Criminal Appeal Act, addressing appeals from conviction or sentence. Here, on an application under s 5F, the relevant power is found in r 3.5(5) of the Criminal Appeal Rules, which implicitly grants the Court power to grant leave to extend time to file a notice of appeal, and does so without stating any criteria. It can be accepted that Kentwell provides guidance as to the exercise of that power.
In particular, there is no reason to doubt that the power here "is to be exercised by consideration of what the interests of justice require in the particular case" (Kentwell at [30]). Further, the High Court went on to say as follows:
[32] … The principle of finality finds expression in the prescription of the time limit within which an appeal or an application for leave to appeal may be brought. The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding. However, at least in the case of an out-of-time challenge to a sentence that is being served, the principle of finality does not provide a discrete reason for refusing to exercise the power.
[33] Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted.
[3]
Impugned judgment
The applicant (on day 5 of the first trial) sought a permanent stay of proceedings on the basis that the proceedings were manifestly unfair (referred to by him as the oppression ground) and would bring the administration of justice into disrepute (referred to by him as the plea bargain ground).
The trial judge observed (at [17]), as part of her account of the procedural history of the proceedings, that shortly after his arrest in May 2018 and until such time as he entered into negotiations with the ODPP and pleaded guilty to the two rolled up s 192G offences, the applicant had made repeated attempts to bring to the attention of the prosecution the Jamieson decision; and (at [18]-[19]) that although there was some divergence in the applicant's evidence as to whether this was on six or twelve occasions, it was apparent that he had raised the issue with the ODPP more than once. Her Honour noted that this had been raised with the ODPP at least as early as 24 October 2018. The applicant cavils with the suggestion that he had raised the issue only in August 2018 (AT 16.6), saying that he had raised the Jamieson issue since May 2018. However, reading her Honour's reasons as a whole it is clear that her Honour understood that the Jamieson issue had been raised by the applicant at an early stage. The significance of this on the present appeal lies in the applicant's contention as to oppression. In essence, the applicant argues that the prosecution should be bound by its conduct in not accepting that Jamieson immunity applied at an earlier stage (see at AT 5,40, 8.45 where the applicant says that the opportunity to "fix" the prosecution came and went before crystallisation of the "termination promise" on the entry of his plea).
Addressing the Crown's submission that the plea bargain was not binding at least because the applicant had breached it by appealing against the convictions, her Honour noted that the authorities did not support a finding that the plea bargain was to be analysed as an ordinary enforceable contract (referring to Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 (Maxwell) at [32] per Toohey J) but accepted that the fact of the existence of a plea agreement was relevant to considering whether a subsequent ex officio indictment filed by the Crown was an abuse of process (at [49]).
Her Honour referred to the evidence of the applicant to the effect that, prior to entering the plea agreement and pleading guilty, it was always his intention to appeal any subsequent conviction. Her Honour observed that the parties were not united or ad idem in what was to be the outcome or the purpose of the agreement (at [50]).
[4]
Proposed Grounds of Appeal
The applicant has sought leave to appeal on the following two grounds:
(1) The trial judge erred in holding that the plea agreement was not an enforceable agreement and the subsequent decision that the proceedings did not bring the administration of justice into disrepute was manifestly unreasonable. See R v Townsend and others [1997] 2 Cr. App. R 540.
(2) The trial judge misapprehended the facts and circumstances as to what occurred in the original proceedings and the subsequent holding that the appellant's prosecution did not involve oppressive unfairness and / or incurable unfairness which justified a permanent stay of proceedings was manifestly unreasonable and fundamentally flawed. See Island Maritime Ltd v Filipowski (2006) 226 CLR 328 [2006] HCA 30.
[5]
Jurisdiction
We turn first to the question of jurisdiction since, as noted by the Crown, it is the first duty of a Court to consider its jurisdiction (see Federated Engine Drivers Association of Australasia v Broken Hill Pty Ltd (1911) 12 CLR 398 at 415; [1911] HCA 31) and the determination of jurisdiction should generally be raised and determined at the first opportunity (Re Culleton (2017) 91 ALJR 302; [2017] HCA 3 at [23] per Gageler J).
[6]
Crown Submissions on jurisdiction
The Crown argues that an appeal from a decision declaring a stay is incompetent following conviction (noting that the jury's verdict establishes guilt and amounts to a conviction). The Crown invokes the doctrine of merger, namely the common law principle which treats a legal action as extinguished once a determination of a Court of Record has been given upon it; and that, following judgment, both rights and liability derive from the judgment itself. It is noted that, as a matter of common law principle, the judgment is of a "higher nature" and is substituted for (or supersedes) the underlying cause of action (the Crown citing Gummow J in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (Pearce) at [55]; Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30 (Filipowski) at [42]; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 (Tomlinson) at [20]).
The Crown argues that, in criminal proceedings, the effect of the doctrine of merger is that: a conviction of a court is maintained even if the underlying offence provision is disallowed (citing Meakes v Dignan (1932) 46 CLR 73; [1932] HCA 7 (Dignan) at 106 per Dixon J); merger is applied in the criminal law doctrine of autrefois convict (citing Deane and Gaudron JJ in Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 (Rogers) (at 276-277)); and the order of a first instance court is superseded by the orders of an appeal court in relation to the same cause. It is noted that, where an appeal to an intermediate court has been determined, no appeal to a court higher in the judicial hierarchy can be brought from the original orders, those having been superseded (citing Adamson J in Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85 (Nand) at [52]).
Thus, the Crown submits that, in accordance with the doctrine of merger, the ultimate determination of the Court becomes the only source of rights and liabilities; the antecedent law, the facts, and the earlier determinations merging in the final judgment. The Crown submits that, after conviction or acquittal, rights of appeal and review attach to the final determination but the process leading up to a final order has no actionable content once a final order is entered. The Crown thus argues that the interlocutory decision of Harris DCJ has merged in the conviction and has no extant legal effect given the conviction entered at the conclusion of the trial.
[7]
Applicant's submissions on jurisdiction
The applicant maintains that there is jurisdiction to hear this appeal under s 5F(3) of the Criminal Appeal Act because success on the merits would prevent him from being sentenced at all (we note that this argument properly understood seems to go to the utility of an appeal not jurisdiction as such).
The applicant relies upon Lipton as authority for the proposition that this Court has jurisdiction to deal with the present application, noting that he is yet to be sentenced. As referred to above, the applicant seeks to overturn the stay decision so that, on remittal to the District Court, he can make an application for a stay of the sentencing proceedings.
The applicant says that the decision in O'Meara should not be read like a statute (citing Gummow J in Brennan v Comcare (1994) 50 FCR 555 at 572), and he argues that O'Meara cannot be reconciled with Lipton (which held that sentencing proceedings can be stayed where the fairness of the proceedings is controversial). The appellant says that Lipton is binding unless plainly wrong, citing Gleeson CJ in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99-100. The applicant wishes to rely, in support of a further permanent stay application, on what he characterises as the "vexatious prosecution" relating to the second charge (on which the jury acquitted him).
The applicant argues that the grant of a permanent stay would have real consequence because it would operate to prevent him from being visited with punishment. The applicant contends that submissions relating to superseding merger have merit when sentence is pronounced but not before (because the verdict is not an order and until such time as sentence is pronounced there is no judgment to appeal against).
The applicant thus argues that, until such time as the District Court pronounces judgment, there is no conviction to appeal; and that this Court would not consider an appeal against conviction until sentence is imposed to avoid fragmentation of the criminal process (citing Tonari v The Queen (2013) 237 A Crim R 490 at 493; [2013] NSWCCA 232 (Tonari) per Johnson J). The applicant says that it is the sentence imposed, and not the verdict, which has "real bite" (adopting the language used, in a different context, in R v Curtis (No 3) [2016] NSWSC 866 (Curtis) at [51] per McCallum J, as her Honour then was).
[8]
Determination
As noted above, the common law principle of merger treats a legal action as extinguished once a determination of a Court of Record has been given upon it. In India v India Steamship Co [1993] AC 410 at 417, Lord Goff of Chieveley described the doctrine of merger as being that a person "in whose favour an English judicial tribunal of competent jurisdiction has pronounced a final judgment … is precluded from afterwards recovering before any English tribunal a second judgment for the same civil relief in the same cause of action".
The doctrine of merger often arises in the context of res judicata on the basis that the right or cause of action has merged in the judgment and no longer has an independent existence (Blair v Curran (1939) 62 CLR 464 at 531-532; [1939] HCA 23 per Dixon J (as his Honour then was)). That principle is well-described by Clarke JA in in Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 555:
The doctrine of res judicata is usually explained in Australia on the basis that the right or cause of action has merged in the judgment and no longer has an independent existence: Blair v Curran (1939) 62 CLR 464 at 531-532; Port of Melbourne Authority v Anshun Pty Ltd. It is, as Dixon J explained in Blair, a doctrine which is separate and distinct from the principle of issue estoppel.
There are, however, two observations which should be made about res judicata. The first is that the doctrine of merger in the judgment only applies in a case in which the plaintiff establishes his cause of action and it is that cause of action which merges in the judgment. Where the plaintiff fails to establish its cause of action (that is, there is a verdict for the defendant) there is nothing to merge in the judgment and the doctrine of res judicata operates as a true estoppel.
A majority of the High Court in Tomlinson set out the consequences of the application of the doctrine at [20]:
The rendering of a final judgment in that way "quells" the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they "merge" in that final judgment. That merger has long been treated in Australia as equating to "res judicata" in the strict sense. [footnotes omitted]
Thus, the essence of the doctrine of merger in civil cases is the substitution of the final judgment for the initial cause of action, such that the basis on which the initial cause of action was brought can no longer found further causes of action by the original plaintiff.
[9]
Appeal grounds
We turn then to the proposed grounds of appeal, since the prospects of success on the appeal are relevant when considering whether leave to appeal should be granted.
[10]
Applicant's submissions re appeal
The applicant identifies the issues arising on the s 5F appeal as being: first, whether proceedings which depart from a plea bargain containing a promise relating to the termination of criminal charges bring the administration of justice into disrepute and should be permanently stayed; and, second, whether the applicant's prosecution can be regarded as a "good faith successive prosecution" or is a repeated prosecution tainted by mala fides which amounts to an oppressive abuse of process.
As to the first, the applicant argues that, as a matter of principle, irrespective of how a person is convicted, the person always retains a right to appeal against their conviction pursuant to s 52(1) of the Appeal and Review Act and citing Thalari v The Queen (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [32].
The applicant says that the mere fact that a person pleads guilty as part of a plea bargain does not contain a positive representation concerning future events and that no obligations in that regard arise. The applicant argues that it is open to a party (here the prosecution) to negotiate terms relating to the consequences of the other party availing itself of a legal right (citing Price v Spoor (2021) 270 CLR 450 at 460; [2021] HCA 20 at [12]) (and that the prosecution did not here do so). The applicant also submits that "[a] person pleading guilty is not bound by some equitable rule of law to do the right thing by the party trying to destroy them" (contrasting this with Protheroe v Protheroe [2023] NSWCA 328).
As to the principles relating to plea bargains, the applicant says that they involve an agreement between the parties (citing GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 2 at [27]-[32]), noting that they perform an important function in disposing of criminal proceedings (citing Paul Byrne, Criminal law and justice Plea bargaining (1989) 62 ALJ 799; Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520 at 528-529). The applicant says that whether the plea bargains are enforceable depends on their circumstances and that some agreements are worthless, including promises as to sentencing range or disposing of charges which are not known to law (citing R v Maxwell (1994) 34 NSWLR 606 at 616F; Maxwell; and LJW v Western Australia (No 2) [2007] WASCA 275 at [15]-[16]).
The applicant argues that where a plea agreement is enforceable (as it can be where it contains a promise relating to the termination of criminal proceedings - citing R v Robert Thomas [1995] Crim LR 938), departure from such an agreement brings the administration of justice into disrepute (citing R v Trainor [1992] 2 Qd R 572 at 583). The applicant submits that the need for strict compliance with these agreements is justified for policy reasons because, if there is not strict compliance, the willingness to engage in negotiations of this kind would dry up (citing R v Georgiadis [1984] VR 1030 at 1037; R v Lewandowski (2003) 32 SR (WA) 247 at 255-256). The applicant says that where a promise is made, and that representation is acted upon which results in the crystallisation of detriment, departure from the promise is unfair (R v Hamza [2007] QB 659 (Hamza) at [54]), noting that there does not have to be an express promise; it can also be implied so long as it involves the prosecution reneging on their promises (Hamza at [54]). The applicant maintains that in the present case the plea bargain crystallised when he pleaded guilty (AT 5.40-41).
[11]
Crown submissions
Responding to the applicant's contention that the trial judge failed meaningfully to assess the facts and failed to consider the reasonableness of the original proceedings, the Crown says that her Honour heard argument and appropriately considered the relevant basic law (noting [45]- [46] of the impugned decision); and that the trial judge considered the applicant's arguments.
First, as to the applicant's argument that the ODPP undertook never to reinstate the charges, the Crown points out that her Honour considered the evidence before her, including that the applicant had intended to appeal following his plea to "avoid the prosecution altogether" and held that the parties were not "united or ad idem in what was to be the outcome or indeed the purpose of the agreement" (at [50] of the impugned decision). It is noted that her Honour considered that the applicant's view (that the prosecution had undertaken not to re-prosecute) was inconsistent with his own enquiries about whether proceedings were going to be re-instituted after the Supreme Court proceeding and inconsistent with comments made to Adamson J in the Supreme Court proceedings (see [52]-[53] of the impugned decision; see further below). The Crown also notes that the trial judge held that "the offender was alive to the possibility of the s 319 offence" (at [68] of the impugned decision).
Second, as to the applicant's argument that forensic disadvantage was caused by delay, the Crown points out that the trial judge gave the delay "considerable weight" (at [52] of the impugned decision); and took into account the applicant's assertions that the delay would likely have affected the recall of the witnesses at trial (at [62]) and that he may have not had access to evidence (at [59]-[60]). It is noted that her Honour accepted that the applicant was at a forensic disadvantage (at [71]) but considered that the disadvantage could be the subject of judicial directions in favour of the applicant, highlighting the cautious approach to be followed before the applicant could be found guilty (at [71]). The trial judge was not satisfied that the disadvantage was such that the accused would be deprived of a fair trial (see at [71]). It is further noted that her Honour considered that the "most troubling aspect" of the delay (the passage of time from judgment to ex officio indictment) was offset by the serious nature of the charges (see at [72]).
[12]
Determination
The Crown accepts that the principles on which the decision of the primary judge in refusing a permanent stay is to be reviewed are those referable to the correctness standard in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 (see GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [1]); and that this standard is applicable to permanent stays in criminal law (citing Koschier v R [2024] NSWCCA 24 at [28]-[42]).
As to the applicable legal principles on an application for a permanent stay of proceedings, the Crown refers to the test outlined in R v Edwards [2009] HCA 20 (at [23]) as being "whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness", or whether the "continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process". The applicant does not suggest any different test.
In our opinion, leave to bring the proposed appeal under s 5F should be refused in circumstances where there was clearly a forensic decision taken by the applicant not to challenge the ruling as to the application for a permanent stay until after the first set of proceedings had carried through to conviction (and the second had resulted in an acquittal) and the applicant is not deprived of his ability to appeal from conviction (and sentence) in due course in relation to this conviction in the first proceedings. Indeed, as noted above at [45], the applicant has now filed an appeal against conviction. This Court should not give its imprimatur to a s 5F application after conviction where there is now no utility in relation to the stay application, the trial having proceeded to a conviction.
The utility to which the applicant points (at [4]-[5] of his submissions in reply) in raising a s 5F appeal at this stage is tied to his proposition that there can be no appeal against conviction until his sentence is imposed:
4. The appellant respectfully submits that until such time as the District Court pronounces judgment there is no conviction to appeal and this Court would not consider an appeal against conviction until sentence is imposed to avoid fragmentation of the criminal process: Tonari v The Queen (2013) 237 A Crim R 490 at 493 [2013] NSWCCA 232 (Johnson J).
5. To borrow from another context, it is sentence imposed and not the verdict which has "real bite": see R v Curtis (No 3) (2016) 114 ACSR 184 at 195 [51], [2016] NSWSC 866 (McCallum J).
[13]
Conclusion
For the above reasons, leave to appeal should be refused. Were leave to have been granted, we would have concluded that the appeal should be dismissed. Accordingly, the following orders should be made:
1. Time for the filing of the notice of appeal is extended to the date of the filing of the notice of appeal.
2. Leave to appeal is refused.
GARLING J: I agree with the conclusions expressed in the joint judgment of Ward P and Kirk JA that this Court has the jurisdiction to determine the substantive question which has not merged with the conviction.
I regret that I am unable to agree with the orders proposed for the disposition of this application. I will explain why this is so.
Section 5F of the Criminal Appeal Act 1912 is an appeal provision which is addressed to a limited circumstance which exists in a particular context. It is, relevantly, in the following form:
5F Appeal against interlocutory judgment or order
(1) This section applies to -
(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and
…
(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.
(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings -
(a) if the Court of Criminal Appeal gives leave to appeal, or
(b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.
…
(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.
(5) The Court of Criminal Appeal -
(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and
(b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.
(6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.
…
[14]
Amendments
09 July 2024 - Non-Publication order lifted
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated.
Decision last updated: 09 July 2024
ons [2013] NSWCA 406
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kite v R (1992) 60 A Crim R 226
Koschier v R [2024] NSWCCA 24
LJW v Western Australia (No 2) [2007] WASCA 275
Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
Meakes v Dignan (1932) 46 CLR 73; [1932] HCA 7
Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85
Natoli v R [2005] NSWCCA 292
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Price v Spoor (2021) 270 CLR 450; [2021] HCA 20
Protheroe v Protheroe [2023] NSWCA 328
R v Brightwell [1995] 2 NZLR 435
R v BWM (1997) 91 A Crim R 260
R v Carroll (2002) 213 CLR 635; [2002] HCA 55
R v Curtis (No 3) [2016] NSWSC 866
R v Edwards [2009] HCA 20
R v Georgiadis [1984] VR 1030
R v Hamza [2007] QB 659
R v Jurca (1986) 6 NSWLR 491
R v Karageorge (1998) 103 A Crim R 157
R v Lewandowski (2003) 32 SR (WA) 247
R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247
R v MAJW (2007) 171 A Crim R 407; [2007] NSWCCA 145
R v Maxwell (1994) 34 NSWLR 606
R v Nwanokwu [2015] 2 Cr App R (S) 33; [2015] EWCA Crim 81
R v O'Meara [2003] NSWCCA 206
R v Pearce [2020] NSWCCA 61
R v Petroulias (No 1) [2006] NSWSC 788
R v Robert Thomas [1995] Crim LR 938
R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
R v [SJ] [2023] NSWDC
R v Swingler [1996] 1 VR 257
R v Townsend [1997] 2 Cr App Rep 540; [1998] Crim LR 126
R v Trainor [1992] 2 Qd R 572
R v Unger [1977] 2 NSWLR 990
R v Van Phu Ho (Court of Criminal Appeal, unreported, 18 July 1994)
Re Culleton (2017) 91 ALJR 302; [2017] HCA 3
RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
Thalari v The Queen (2009) 75 NSWLR 307; [2009] NSWCCA 170
The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
The Queen v Latf [1996] 1 All ER 353
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Tonari v The Queen (2013) 237 A Crim R 490; [2013] NSWCCA 232
Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2023] HCA 11
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8
Texts Cited: Paul Byrne, Criminal law and justice Plea bargaining (1989) 62 ALJ 799
Category: Principal judgment
Parties: [SJ] (Applicant)
Rex (Respondent)
Representation: Counsel:
J Styles (Respondent)
Ward P and Kirk JA (Garling J agreeing):
(1) The doctrine of merger treats a legal action as extinguished once a determination of a Court of Record has been given upon it (Ward P and Kirk JA at [77], Garling J at [152]). While the doctrine of merger has application in criminal proceedings (such as in the plea of autrefois convict) (Ward P and Kirk JA at [81]-[84], Garling J at [152]), it does not extend to operate such that an interlocutory decision "merges" into the conviction; this ignores the foundation of the doctrine, being that it is the underlying liability that merges into the conviction (Ward P and Kirk JA at [93]-[94], [97], Garling J at [152]).
Blair v Curran (1939) 62 CLR 464; [1939] HCA 23; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28; Meakes v Dignan (1932) 46 CLR 73; [1932] HCA 7; Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42; Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115; Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85 considered.
Ward P and Kirk JA:
(2) Where there was clearly a forensic decision taken by the applicant not to challenge the ruling as to the application for a permanent stay until after the first set of proceedings had carried through to conviction, and where the applicant is not deprived of his ability to appeal from conviction and sentence, leave to appeal should be refused (Ward P and Kirk JA at [134]). While it is typically the appropriate course to hear a conviction appeal once the sentence has been handed down, the Court has jurisdiction to entertain an appeal against conviction notwithstanding that the appellant has not been sentenced (Ward P and Kirk JA at [138]); though this course should not be encouraged (Ward P and Kirk JA at [141]).
Griffiths v The Queen (177) 137 CLR 293; [1977] HCA 44; Tonari v The Queen [2012] NSWCCA 232; R v MAJW [2007] NSWCCA 145 considered.
(3) The primary judge did not hold that the plea bargain was not an enforceable agreement as such; rather, her Honour pointed to authorities that suggested that ordinary contractual analysis in relation to a plea bargain was not appropriate (Ward P and Kirk JA at [146]). The applicant chose to depart from the plea agreement; the suggestion that the plea bargain involved nothing more than making the plea is artificial. To accept such an argument would itself have the capacity to bring the administration of justice into disrepute (Ward P and Kirk JA at [147]).
(4) As to the proposed second ground of appeal, her Honour did not err in the conclusion that it was not an abuse of process for the Crown to reinstate the fraud charges in the circumstances to which her Honour referred. No more was required by way of examination of the circumstances of the case or the terms of the plea bargain than her Honour carried out (Ward P and Kirk JA at [148]).
JUDGMENT
WARD P and KIRK JA: In this matter, the applicant seeks leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) to appeal against the dismissal on 3 July 2023 of his application for a permanent stay of the prosecution brought against him in the District Court on fraud charges (R v Sayer-Jones [2023] NSWDC, a judgment which is currently restricted, to which we will refer as the impugned judgment). A decision to decline a permanent stay is an interlocutory decision for the purposes of s 5F of the Criminal Appeal Act (Dawson v R [2021] NSWCCA 117 at [37]). If successful in this application (both as to the grant of leave to appeal and the appeal itself), the applicant seeks that the matter be remitted to the District Court, where he is foreshadowing an application for a permanent stay of the forthcoming sentencing proceedings on the one fraud charge in respect of which he was convicted.
The present application requires an extension of time, having been filed well outside the 14 day time limit prescribed by r 3.5(4) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) for the filing of applications pursuant to s 5F(3) of the Criminal Appeal Act.
The Crown contends that this Court has no jurisdiction to entertain the appeal on the basis that the decision in relation to the stay has now merged in the applicant's conviction for the offence in respect of which he is yet to be sentenced. If that contention be wrong, the Crown submits that the Court should refuse to exercise the discretion to grant leave to appeal (citing R v O'Meara [2003] NSWCCA 206 (O'Meara) per Tobias JA (James and Howie JJ agreeing) at [6]) on the basis that the decision declining to order a permanent stay has no continuing effect. In O'Meara, the trial had proceeded to finality and the applicant awaited sentencing (as is also here the case) and Tobias JA considered that "[a]s the trial has concluded there is nothing of substance left to stay. Accordingly, the present application is misconceived".
The applicant emphasises that he is not seeking a stay in this Court; simply, that the orders refusing a permanent stay of the prosecution be set aside and the matter remitted to the District Court, noting that there is jurisdiction to seek a stay of sentencing proceedings (citing R v Lipton (2011) 82 NSWLR 123 at 144; [2011] NSWCCA 247 (Lipton)).
Alternatively, the Crown submits that the applicant has not identified any substantive error in the impugned judgment nor provided any explanation of the delay in bringing these proceedings; and hence that leave should not be granted or the appeal should be dismissed.
In cases such as the present, in considering the interests of justice, one significant consideration is that the period for filing an appeal from an interlocutory judgment or order under s 5F is considerably shorter than the period available to appeal from a conviction or sentence. The time period manifests a policy that such appeals are to be brought promptly, no doubt including because the very nature of determination of interlocutory matters is that they commonly are determined prior to the final resolution of the proceedings.
Further, if a defendant is discontented with an interlocutory judgment or order and is then convicted and sentenced, and if that judgment or order had some significance in their trial or sentencing, then they commonly will be able to challenge the interlocutory judgment or order as part of any appeal they may bring from the conviction or sentence. Such persons thus have an available means of seeking justice without an extension of time. That stands in stark contrast to the position of persons challenging a sentence still being served, as considered in Kentwell.
Moreover, as is addressed further below, there are strong reasons militating against fragmentation of the criminal process.
In this context, and without seeking to articulate some general rule or principle, it can be expected to be rare that time will be extended for an appeal under s 5F in circumstances where the point raised is capable of being raised in an appeal from a conviction or sentence. That is so even if, on an impressionistic analysis, the matters sought to be raised in the application are arguable: note Gould v R [2023] NSWCCA 103 at [71]-[75]. Of course, the issue will always turn upon consideration of the interests of justice in all the circumstances.
Whether or not there is an explanation for the delay is one potentially relevant factor: note Gould at [68]. The applicant in oral submissions in this Court sought to explain the delay (AT 16.41-42) on the basis that he was "fighting a very difficult prosecution", which was "extensively time intensive and complex"; and said that he was considering his options when he was acquitted on the second fraud charge and then commenced the present proceedings. That assertion does not offer a sufficient explanation for his delay, which was substantial (being some six months). Indeed, it is apparent that the applicant made a forensic decision not to challenge the ruling on his application for a permanent stay ruling until after the two sets of proceedings before the trial judge had carried through to completion. That fact weighs heavily against extending time.
However, this application does raise broader issues of principle relating to whether the principle of merger operates to deprive this Court of jurisdiction to deal with a matter such as this. For that reason only, in this particular matter, it is appropriate for an extension of time to be granted.
Pausing here, the applicant was similarly candid in his submissions in this Court. The applicant made clear that he was going to do whatever he could in order to avoid punishment (see at AT 2.18-19 where he described himself as a "not unskilled litigant" who was going to do whatever he had to do "to get off completely", and at AT 16.13-14 where he stated that he was the "wrong type of defendant to take legal risk with because [he] will do whatever [he has] to do"). In that context, the applicant maintains that nothing in the plea agreement barred him from seeking later to withdraw the guilty pleas or to appeal his conviction and that if the Crown had wanted to oust his appellate rights it was incumbent on the Crown to do so at the time. See for example at AT 7.13-15, where the applicant suggests that the Crown is here seeking some ex post facto modification of the plea agreement "because it turned out to be a bad idea" and at AT 7.22 where the applicant said that the prosecutor did not ask him to agree that he would serve a sentence. The applicant says that he was correct (on the Jamieson issue) "and it burned them big time" (AT 8.5). The applicant did not accept that his conduct in relation to the plea argument was akin to entering a guilty plea with his fingers crossed behind his back though he understood the proposition put to him that one could not plead guilty with one's fingers crossed (see AT 3.25).
Her Honour was not satisfied (in circumstances where it was always the intention of the applicant to appeal any subsequent conviction and where, in that sense, her Honour considered it was not "a true plea agreement at least on behalf of the prosecution") that the subsequent re-charging by way of ex officio indictment could fairly be considered to be an abuse of process (at [51]). The applicant here complains that her Honour did not consider the terms of the plea bargain in reaching the conclusion that there was not an abuse of process (see AT 27.27-35).
Her Honour then addressed the question of delay and considered that it ought to be given considerable weight. However, her Honour was not satisfied that the applicant had lived his life in the 15 months before the re-charging "having been given an assurance or undertaking that further proceedings would not be taken" (at [52]). Her Honour referred to the applicant's own email to the ODPP seeking confirmation that no further proceedings would be taken against him, which her Honour said was difficult to reconcile with such an understanding and to the exchange that had occurred when the matter was before Adamson J. Her Honour considered that the latter made clear that the applicant understood that there was a real possibility that the ODPP would pursue the s 319 charges (at [53]).
Her Honour also considered the applicant's submissions as to the oppressiveness of the second prosecution; the forensic disadvantage to which the applicant said he would be subject; and the personal impact of the prosecution on the applicant (see from [54]). Her Honour concluded (at [68]) that there was no relevant unfairness in the prosecution reinstating the s 319 charges having regard to the plea agreement and the "then intention of the accused to appeal his convictions without relaying to the DPP that intention as it might undermine the plea agreement"; and having regard to the applicant's submissions on sentence in the Local Court that on their face accepted his guilt. The applicant's contention in this Court is that her Honour was required to undertake a comprehensive examination as to the reasonableness (or lack thereof) of the Crown prosecution (AT 15.48).
On the question of delay, her Honour accepted that there was a lengthy and unaccounted for delay which had created substantial anxiety and stress for the applicant beyond that caused during the Local Court proceedings (at [70]). Her Honour also accepted that the applicant was at a forensic disadvantage because of the delay in the proceedings (though it was not possible to determine the full extent of this) but her Honour was not satisfied that the disadvantage was such that the applicant would be deprived of a fair trial (at [71]). Indeed the applicant made clear in this Court that he does not suggest he cannot have a fair trial but, rather, he draws a distinction between the fairness of a trial and the fairness of the proceedings themselves, citing Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 (see AT 28.34-35).
Her Honour considered that the most troubling aspect of the matter was the passage of time between the judgment quashing the s 192 convictions and the filing of the ex officio indictment. Nevertheless, her Honour said that, by reason of the serious nature of the charged offences and the acknowledgement of the applicant that they may follow, the stay application should be refused (at [72]).
Her Honour was not satisfied that the matters relied upon by the applicant amounted to proceedings that were oppressive in the relevant sense (at [73]) and, balancing fairness to the applicant against the public interest considerations, was not satisfied that the discretion ought be exercised for a permanent stay of proceedings (at [75]).
An example of the application of merger in criminal proceedings, as noted by the Crown at [41], is seen in the dicta of Dixon J in Dignan at 106, where his Honour states:
[A]fter a regulation has been disallowed, no one is liable to conviction for an offence committed while it was in force. His liability ceases when the law is revoked that imposed it. But if he has already been convicted, then because his liability has merged in the conviction, it no longer depends upon the law under which it arose, and it does not lapse with the revocation of the law. The conviction has become the source of his liability for his offence, and the conviction continues in force because its operation does not depend upon the law creating the offence, but upon the authority belonging to a judgment or sentence of a competent Court.
While this makes clear that the doctrine of merger does have application in criminal proceedings, it is also apparent from the above that what is merging into the conviction is not an earlier decision as such but, rather, the accused's liability (and the conduct that founded that liability). This fits clearly with the civil application of the doctrine, as an accused's liability in criminal law is a neat analogy to a civil defendant's liability pursuant to a given cause of action. As Gummow and Hayne JJ stated in Filipowski at [42], "[j]ust as judgment of a court of record in a civil action changes the cause of action to a matter of record, conviction in a court of record in respect of a criminal offence brings about 'the substitution of a new liability'".
That an accused's liability merges into the conviction has been clearly stated, as Gummow J noted in Pearce at [56]:
… a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature. Thus, in respect of an alleged criminal liability, conviction brings about "the substitution of a new liability".
Merger is the basis of the plea of autrefois convict. As Deane and Gaudron JJ observed in Rogers (at 276-277), "Autrefois convict is the application in criminal proceedings of the doctrine of merger which gives rise to res judicata or cause of action estoppel in civil proceedings". More generally, Gaudron and Gummow JJ in The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 (Carroll) at [84] linked the doctrine of merger (among other general principles) to "[t]he law's aversion to placing an individual twice in jeopardy of criminal punishment for the one incident or series of events".
Again, the application of the doctrine here seems to be focussed on the substitution of a conviction for a party's liability. Merger is the foundation of the plea of autrefois convict because the liability (on which the new charges have been brought) no longer exists, as it has merged into the previous conviction - it is now liability in the sense that it is a conviction in a court of record in respect of which a sentence may be imposed, rather than a liability in respect of which charges may be brought. As Henry J (delivering the judgment of the New Zealand Court of Appeal) stated in R v Brightwell [1995] 2 NZLR 435 at 438-439:
Autrefois convict precludes the Crown not from asserting an issue previously determined in favour of the accused (autrefois acquit) but from reasserting one previously determined in its favour. The rationale is that the second issue has merged in the previous conviction. The common law plea, like s 358(1), is available not only in respect of the offence of which the accused has been convicted but also in respect of any offence of which he could have been convicted on the earlier occasion or of any offence which is substantially the same as that offence.
The Crown's contention in the present case appears to be that the merging of a party's liability in the conviction can be extended to the merging of all aspects of the proceedings (including interlocutory decisions) in the conviction.
As noted, the Crown cites the decision of Adamson J, as her Honour then was, in Nand. Considering circumstances in which a conviction in the Local Court was unsuccessfully appealed to the District Court, her Honour (citing Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 (Wishart) and Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 (Garde v Dowd) at [11]-[13] per Basten JA, as his Honour then was (Giles and McColl JJA agreeing)) noted the principle "that this Court has no power to review any aspect of the decision of the Local Court if it has effectively been superseded by the judgment in the District Court". Adamson J further stated, at [58], citing the decision of the NSW Court of Appeal in Blacker v Parnell [1978] 1 NSWLR 616, that in that scenario the District Court orders become the "operative" orders and displace those of the Local Court.
It would be a closer analogy to the present case (in which the submission is that an earlier interlocutory decision merges into the conviction) that an earlier conviction merges into the determination of the appeal of that conviction. However, neither Adamson J in Nand nor Basten JA in Garde v Dowd (in which his Honour at [11]-[13] set out the same principle) explicitly noted the doctrine of merger (nor is the doctrine cited by Starke J in Wishart, which judgment is cited in both Nand and Gare v Dowd). That said, Adamson J, in using words such as "superseded" and "displaced", did employ language similar to the language of "substitution" seen in Pearce that is fundamental to the doctrine.
It is certainly possible that (as the Crown suggests) merger is the basis for the principle set out by Adamson J and Basten JA. There is a similarity between the substitution of liability based on the recorded judgment for the liability founding criminal charges, and the superseding of the original conviction by the subsequent dismissal of an appeal of that conviction. The phrase "operative orders" is particularly telling, as the consequence of merger is that the judgment on record is operative (and the original cause of action or charges are no longer operative).
The key difference, however, is that the subject of the principle articulated by Adamson J and Basten JA is what orders are operative, whereas the typical focus of the doctrine of merger (as articulated by the High Court in Filipowski and Pearce) is what liability is operative. This is a fundamental distinction that casts doubt on whether Nand and Gare v Dowd can properly be characterised as applications of the doctrine of merger.
In oral submissions, the Crown relied upon R v Unger [1977] 2 NSWLR 990 (Unger) (AT 18.36-39), noting in particular the statement by Street CJ (with whom Begg and Ash JJ agreed) at 995 (citing the judgment of Dixon J in Dignan) that:
… the effect of a conviction in a criminal court, no less than a verdict and judgment in a civil court, is to merge in that conviction or judgment, as the case may be, all of the material upon which it proceeded.
It is by no means clear that, following the decision of Kentwell, Unger reflects the current state of the law, but the fact that the above statement of principle is drawn entirely from the dicta of Dixon J (extracted above) indicates that the reference to "all material" is better read as a reference to the liability (and underlying conduct) that founded the initial charges, rather than as a reference to the course of the trial and any interlocutory decisions made therein.
Having regard to the origin of the doctrine of merger, and the manner in which it is applied, we have difficulty accepting that it has the effect in the present case for which the Crown contends. The foundation of the doctrine is liability - specifically, the liability that founds the original charges or cause of action, which is then extinguished or substituted by the final judgment. Interlocutory decisions are simply a different matter, to which the doctrine of merger has not (so far as we can ascertain) been said to have any relevance.
This is not to say that the doctrine of merger could not be extended to situations like that which is currently before the Court. It is not contrary to the doctrine as it currently exists to say that an interlocutory decision "merges" into the final judgment, with the effect that an appeal predicated on a challenge to that interlocutory decision must be brought as a conviction appeal (rather than an appeal of the decision itself under s 5F). The issue with the Crown's submission is that merger is a matter of liability (as explicitly set out by the High Court in Filipowski and Pearce). It is simply a different consideration to an interlocutory decision, and while there is no reason not to extend the doctrine by way of analogy, it is important to note that this is not the context in which it has been applied thus far.
It is apt here to note that, in the second reading speech of Attorney-General Terry Sheahan in relation to legislation which introduced s 5F into the Criminal Appeal Act, the Attorney expressed concern about a practice which had developed of applying to the Court of Appeal for review of decisions by the District Court to refuse applications for a stay of proceedings. The Attorney said that the "proliferation of these interlocutory applications to the Court of Appeal has resulted in significant disruption to the criminal justice system" (Legislative Assembly, 17 November 1987, Hansard p 16087) (see the reliance sought to be placed on this second reading speech recently in Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275 (Maules Creek) at [68]). However, s 5F does not in terms preclude an application for leave to appeal an interlocutory decision after conviction has been entered. The manner in which the concern identified by the Attorney was sought to be addressed by s 5F was presumably through the requirement for leave to be granted.
It is also worth briefly noting that it does not follow, from a conclusion that the merger principle does not here apply, that the applicant has a right of appeal under s 5F. Leave is clearly required under s 5F and issues as to the utility of the proposed appeal and circumstances in which it is sought to be brought are relevant (as was the case in O'Meara). We consider the question of leave in due course.
In conclusion, while the doctrine of merger could be extended to operate in the manner the Crown suggests it already does, the invocation of the doctrine in respect of the present issue to our mind misapprehends its foundation. Merger relates to liability; specifically, the substitution of a liability based on a recorded judgment or conviction for the liability that founded the initial cause of action or charges. It is not so much that invoking the principles of merger in this case is wrong, rather just misconceived - the doctrine as it presently stands relates to liability, not to the conduct of the proceedings, or to interlocutory decisions made along the way. Hence, we have concluded that there is jurisdiction to consider the present application. We consider in due course whether leave should be granted for the proposed appeal.
As to the second issue (the oppressive prosecution contention) the applicant also points to authority for the proposition that unjustifiaby oppressive proceedings are an abuse of process (Rogers at 286 (McHugh J)). The applicant says that the distinction between a successive prosecution and a repeated prosecution amounting to harassment is an important one (comparing R v Carroll (2002) 213 CLR 635; [2002] HCA 55 at [130] (per McHugh J) with Filipowski at [32] (Gleeson CJ, Heydon and Crennan JJ)). The applicant notes that there will be cases where the circumstances of an earlier prosecution will render a further prosecution so unfair that the proceedings amount to an abuse of process (citing Filipowski at [65] (per Gummow and Hayne JJ); [80]-[83] (per Kirby J); [96] (Callinan J)).
The applicant emphasises that the fact that a further prosecution is statutorily available does not resolve the question of whether it is an abuse of process (citing Adler v Director of Public Prosecutions (Cth) [2004] NSWCCA 352 at [38]; [52] (Mason P)), and says that mala fides, like other types of misconduct, can be established by "blind eye knowledge to mundane forensic reality" (citing Group Seven Ltd v Nasir; Equity Trading Systems Ltd (formerly Lam Ltd) v Notabie Services LLP [2020] Ch 129 at [59]; [2019] EWCA Civ 614). The applicant says that malpractice by law enforcement should not be condoned (citing The Queen v Latf [1996] 1 All ER 353). The applicant also points to authority that proceedings which are foredoomed to fail amount to an abuse of process (R v Petroulias (No 1) [2006] NSWSC 788 at [26]).
The applicant accepts that the criminal conduct alleged ordinarily warrants prosecution because it is serious (citing Bebbington v The Queen (unreported, Court of Criminal Appeal Western Australia, 11 January 1990) per Wallace J) but he says that the seriousness depends on the circumstances (citing R v Karageorge (1998) 103 A Crim R 157 and Einfeld v The Queen [2010] NSWCCA 87); and he notes that judicial discretion can always turn on compassion (citing R v Pearce [2020] NSWCCA 61 and R v Nwanokwu [2015] 2 Cr App R (S) 33; [2015] EWCA Crim 81).
The applicant's contention in relation to the plea bargain issue may be summarised as follows: the prosecution said that a plea would "finalise" the case (i.e., bring it to an end); irrespective of whether that should be read as an express promise, it was implied; and the prosecution did not seek to negotiate any terms or bind the applicant to a position which would curtail the exercise of appellate rights nor was there a request that he waive those rights.
The applicant contends that there was a failure (by the primary judge) meaningfully to assess the facts; i.e., to consider whether the original proceedings were reasonably conducted. The applicant maintains that there are powerful reasons why the prosecution should be disentitled from "a second bite of the cherry", including that in circumstances where the prosecution was cognisant of the Jamieson rule, the formulation and execution of the s 192G prosecution was doomed to fail.
The applicant further argues that mala fides was constituted by "blind eye knowledge of mundane forensic reality", contending that it would have been obvious to a legal practitioner that the charges were invalid. The applicant contends that the prosecution inflicted a significant burden on him as a vexatious criminal prosecution without any merit; and says that the refusal to allow the Jamieson issue to be resolved unreasonably protracted the prosecution. The applicant contends that the prosecution departed from the Crown's model litigant obligations.
The applicant complains as to the delay contending that the disruption caused by the oppressive delay which is unexplained and unjustified; and he complains that there has been no financial recompense for the costs thrown away by the original case nor any recompense for the physical inconvenience and the time thrown away by the case. The applicant says that there is a lack of any evidence relating to good faith or innocent mistake (on the part of the prosecution) and the applicant submits that he should not have to tolerate the burden of this prosecution when his conduct was "exemplary and utterly appropriate".
Thus, the applicant contends that the approach in DSJ v The Queen; NS v The Queen [2014] NSWCCA 77 at [4]-[12] (Gleeson JA) and [216]-[220] (Rothman J) should be adopted; maintaining that this Court should intervene to prevent the unfairness in subjecting the applicant to a sentencing proceeding which represents an abuse of process which brings the administration of justice into disrepute. The applicant contends that the matter should be remitted for further proceedings which correctly apply principle and that he should not be subject to sentencing proceedings conducted under the Crimes (Sentencing Procedure) Act 1999 (NSW) in circumstances where the prosecution is an oppressive abuse of process.
In his reply submissions, the applicant maintains the contention that the proceeding brings the administration of justice into disrepute because it conflicts with an implied promise by the prosecution (by virtue of the plea bargain) and in those circumstances that the prosecution should be stayed (R v Townsend [1997] 2 Cr App Rep 540; [1998] Crim LR 126). The applicant says that the fundamental problem with the plea bargain in this case is that it offered him a "windfall" which he says he accepted "and exploited" for his maximum forensic benefit. The applicant says that part of the windfall concerned the understanding that the prosecution was promising that proceedings would never be brought (relying on his affidavit as to the account of the plea bargain conversation, which he says was unchallenged) (see his 21 May 2023 affidavit at [5]).
The applicant argues that if, as he contends, the proceedings amount to an oppressive abuse of process "by reason of the infliction of a vexatious ordeal" on him by reason of prosecutorial ineptitude, then it should be stayed. The applicant says that his contention with respect to delay is not that the delay gives rise to unfairness in a trial proper; rather, it is that the delay represents a "cruel blow which has a disruptive effect" on his life. The applicant emphasises that he does not seek a permanent stay of proceedings in this Court; rather, he seeks that the matter is remitted to be dealt with according to law.
Third, as to the personal aspects raised by the applicant of the proceedings continuing, the Crown points out that, in the context of mental health issues, the applicant successfully opposed a consideration of fitness; and that the trial judge recognised the significant stress and anxiety caused by the proceedings, and their protracted nature (at [65] of the impugned decision).
As to the applicant's submissions in relation to costs, it is noted that costs were dealt with at (at [66] of the impugned decision) and are not the subject of appellate complaint.
The Crown points out that the trial judge considered that the matters relied upon were not oppressive (at [73] of the impugned decision), the matters could be addressed at trial or in any ultimate sentence (at [74]), and that the discretion to stay proceedings should not be exercised balancing fairness against public interest considerations (at [75]).
The Crown argues that the power to grant a permanent stay should be rarely exercised, particularly having regard to the interests of the community and victims of crime in the enforcement of the criminal law (referring to R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 at [204]). It is noted that a permanent stay is a measure of last resort, when there is no other way to protect the integrity of the system of justice administered by the court (citing Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2023] HCA 11 at [21], Kiefel CJ, Gageler, Keane and Gordon, there citing Edelman J in Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 at [264]).
The Crown submits that the trial judge did not err in refusing the application for a permanent stay for the following reasons.
First, that the prosecution of the applicant for the s 319 offences was a legitimate exercise of the functions of the Director of Public Prosecutions (DPP) relating to serious alleged public justice offences; and says that exercise was in good faith. The Crown says that the DPP has consistently pressed the prosecution of the underlying conduct; and that at no stage has there been any suggestion of an indemnity, immunity or undertaking not to prosecute the conduct. The Crown says that the only basis for the acceptance of the pleas was that the pleas were a recognition of the criminality of the underlying conduct. The Crown emphasises that the exercise of the DPP's duties includes the paramount interest of the public; and that interest includes the due prosecution of offenders and the proper punishment of crime. The Crown says that the prosecution of the applicant for available offences is a legitimate vindication of the individual victim's interests, along with that of the public generally.
Second, that a prosecutor's honest but mistaken judgment in good faith may result in a plea agreement being unenforceable (but not preclude subsequent charges the subject of that plea agreement being prosecuted). Reference is made to Barac v Director of Public Prosecutions [2007] QCA 112 (Keane JA (McMurdo P, Jerrard JA agreeing)) where the Court allowed the prosecution to proceed with a subsequent prosecution on trafficking charges on the basis that there was an honest judgment that the availability of new evidence of serious crime was sufficient to warrant a reversal of the previous decision to offer no evidence on those charges and there was no suggestion that that decision was made otherwise than in good faith (see at [34]). The Crown points to the observation (at [35]) that:
Public confidence in the administration of justice might well be lessened to a greater degree by the DPP deciding to allow a criminal, whose guilt of serious crimes was now believed by the prosecuting authority to be demonstrable, to escape responsibility for his crimes than it would be lessened by a supine adherence to an agreement made at a time when necessary evidence was not available.
The Crown accepts that the applicant brought the Jamieson immunity to the prosecution's attention and that the position taken by the prosecution in opposition to this was ultimately established to be in error on appeal. However, the Crown says that the interests of justice would not be served by punishing the Crown for the misconception on a point of law (referring to R v BWM (1997) 91 A Crim R 260 at 267). The Crown points out that there was no suggestion by Adamson J in [SJ] v DPP that the respondent acted in bad faith or made any argument that was not arguable.
Third, that the orders made by Adamson J returned the parties to the legal position they were in before the entry of pleas and convictions were entered (albeit accepting that the judgment proscribes prosecution for the s 192G offences). It is noted that there was no substantive determination on the facts; and that an appeal on a question of law is a limited appeal, where findings as to error dictate the outcome (RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305, per Basten JA at [43]).
The Crown refers to the majority judgment in Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 255 (per Rich, Dixon, Evatt and McTiernan JJ); [1935] HCA 45 as to the effect of the reversal of a conviction by proceedings in error, that being the same effect produced by quashing it, or setting it aside upon a statutory appeal, namely that the conviction is avoided ab initio and that the judgment reversed is the same as no judgment. The Crown points out that, as such, no plea in bar or argument for autrefois acquit is available to the applicant in relation to the alternative charges under s 319 of the Crimes Act (as Adamson J observed at [96]-[97] in [SJ] v DPP, her Honour commenting that it was difficult to see any estoppel arising against the DPP).
Fourth, that the orders of Adamson J operate similarly to the withdrawal or summary charges or the entry of a nolle prosequi (no further proceedings) on indictment. It is noted that, if proceedings are ceased by the prosecution, re-commencement is open; and that s 208 of the Criminal Procedure Act 1987 (NSW) expressly describes the capacity of the prosecution to re-commence proceedings. Following entry of a nolle prosequi, the Crown is not limited, and may represent an indictment for the same conduct. If an accused has proceedings recommenced following a nolle prosequi, the Court will not readily accede to an application that their processes are being abused for no reason other than that (citing R v Swingler [1996] 1 VR 257). The Crown notes that entry of a nolle prosequi does not amount to a promise or representation that the accused will not be presented again on the same charge; and that a nolle prosequi is not tantamount to an acquittal (citing R v Swingler [1996] 1 VR 257 at 257-258 (Swingler) at 265, which in turn cited Davis v Gell (1924) 35 CLR 275 at 287 (Isaacs ACJ); [1924] HCA 56).
Fifth, the Crown argues that staying proceedings as the "only way to protect the integrity of the justice system" is not warranted for the following additional reasons: there is a compelling public interest in prosecution of serious justice system offences; the Courts and community have a compelling interest in the prosecution of offences which undermine the judicial system; the delay in the prosecution was relatively limited and could be offset by directions; the lack of particular oppression in the prosecution on indictment of serious charges; the prosecution had, and continues to have, a strong case (as evident by its acceptance by the jury); and the particular conduct was essentially reprehensible (making false representations to a Court, in the interests of personal financial advantage) and essentially undermines the Court's capacity to do justice.
Finally, the Crown emphasises that the applicant chose to plead guilty to an offence which he asserted was fundamentally flawed. The Crown argues that the applicant's success in demonstrating that juridical fact on appeal cannot mean that he avoids liability for alternate offences relating to the same conduct. It is submitted that this avoidance of liability is entirely artificial. Reference is made in that context to what was said by Debelle J in Kite v R (1992) 60 A Crim R 226 at 227, 234 (where his Honour referred to the applicant's reference before the jury to the possibility that he might be charged with another offence saying that if such a tactic was adopted as part of an accused's defence the accused could not later claim unfairness or injustice if later charged with that other offence). The Crown in that context points to what was said by the applicant before Adamson J, as recorded by her Honour in [SJ] v DPP at [93]:
If the conviction is set aside it will focus the mind of the DPP, with respect, on ensuring that the correct offence is charged from day one and will not cause these convoluted, some might say Byzantine arguments about the elements of an offence. Perverting the course of justice and perjury fit the allegations in this case like a glove. [Emphasis as per Crown submissions]
The Crown says that the rhetorical advantage used by the applicant in related proceedings demonstrates that there is no unfairness to him; that he was aware that renewing the prosecution was the realistic intention of the prosecutor; and that the ODPP never committed to any disposition without sanction.
The Crown says that, as the applicant recognised, his original conduct was a fitting basis for sanction; and that the setting aside of the convictions by Adamson J cannot be a sound basis (alone or in combination) for a finding of unacceptable unfairness or injustice, nor is the prosecution so unjustifiably oppressive as to constitute an abuse of process in the circumstances of the case. Hence, it is submitted that the decision of the trial judge was correct and the prosecution should not be permanently stayed.
This position was reiterated at hearing, as the applicant stated (at AT 27.17-18), that "until I am actually sentenced my position is there is no judgment of conviction". The applicant stated that he wished to pre-empt the sentencing process due to the time it would take to bring a conviction appeal before the Court of Criminal Appeal, which would, he submitted, render his appellate rights "nugatory" as he would have to suffer some part of the sentence (AT 25.47-26.8; 28.4-5).
The applicant's proposition that no appeal from a conviction can be brought prior to sentence is incorrect. In Tonari, this Court heard an appeal against conviction prior to the appellant in those proceedings being sentenced. Johnson J (with whom Price and Hulme JJ agreed) observed at [5] that:
The fact that the Court has proceeded to hear and determine the present appeal should not serve as any encouragement to adopt this procedure in other cases. The ordinary and appropriate course, where s.5 is relied upon, is to avoid fragmentation of the criminal trial and appellate process and for the primary court to proceed to sentence the convicted person, with any appeal against conviction, or conviction and sentence, proceeding thereafter in the usual way.
It is true that it is "the ordinary and appropriate course" to hear a conviction appeal once the sentence has been handed down. However, it was also accepted in Tonari (at [3]) that there is jurisdiction to entertain an appeal against conviction notwithstanding that the appellant has not been sentenced. His Honour cited Griffiths v The Queen (177) 137 CLR 293; [1977] HCA 44 (Griffiths) and R v MAJW (2007) 171 A Crim R 407; [2007] NSWCCA 145 (MAJW). In Griffiths, it was indicated by members of the High Court that the entry of a verdict of guilty constitutes a conviction. Barwick CJ at 301 said that: "the traditional position where there is a trial with a jury is that the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction"; Jacobs J at 313 said that: "It seems to me that the verdict of a jury is a conviction when it has been recorded … There remains a conviction so long as the verdict or the confession remains on the record"; and Aickin J at 334 said that: "Generally speaking a verdict of guilty brought in by a jury constitutes a conviction". ". As was noted in MAJW at [14], "[w]hether a person has been 'convicted' depends on the context in which the question is asked". Here, it is not necessary to consider the possible application of Griffiths because, as the applicant accepted, a conviction was entered by the trial judge after the jury verdict in the first proceedings.
While the applicant is correct in submitting that the filing of a conviction appeal prior to sentencing should generally be avoided to avoid fragmentation of the process, it is not correct to say that this Court would not entertain such an appeal, or to suggest that such an appeal cannot be made. There are other examples of the Court of Appeal hearing an appeal against conviction prior to sentence - see eg Beattie v R [2020] NSWCCA 334 at [6], Cabot (a pseudonym) v R [2018] NSWCCA 265 at [52]-[53], and Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [11], [81], [118].
While McCallum J in Curtis did indeed state (at [51]) that it is the sentence that has "real bite", this was said in the context of considering whether custodial sentences are appropriate as a deterrent in white collar criminal matters. As such, it has little to no relevance to the present issue (whether a conviction appeal may be made prior to sentencing). Thus, the utility argument relied upon by the applicant is not persuasive.
The fact that an appeal can be brought prior to sentence should not be taken to be any encouragement whatsoever to that course being adopted. The applicant's desire to avoid having to be subject to any sentence imposed - or to avoid having to seek a stay of the sentence or (if relevant) bail - could equally apply in any other case where a defendant proposed to appeal their conviction. To encourage such a course would fragment the criminal process by delaying completion of that process at trial level. It would also potentially lead to duplication by separating conviction appeals from sentence appeals. As Johnson J stated in Tonari at [5], the ordinary and appropriate course is to avoid fragmentation of the criminal trial and appellate process and for the primary court to proceed to sentence the convicted person, with any appeal against conviction, or conviction and sentence, proceeding thereafter in the usual way. This Court in Maules Creek (at [75]) quoted approvingly the following observations of Kirby P in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599 (citations omitted, emphasis added):
The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases. More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea.
There is a high public interest in the criminal process moving without undue delay to completion by sentencing after a verdict has been reached.
In this case, leave to appeal should be refused for the reason given above at [134]. The applicant submitted that if his appeal were to be determined on the basis that the Court lacked jurisdiction, then the Court should not go on to address the substantive grounds raised in the notice of appeal. However, this matter has not been determined on jurisdictional grounds. In any case, given that the issues were fully ventilated on appeal, it is appropriate to address the merits of the grounds he has raised, recalling that the prospects of success of his grounds of appeal could potentially be relevant to a grant of leave to appeal.
The applicant says that he pleaded guilty on the basis that he knew the charges were invalid and that he chose to "take a high stakes gamble that [his] position [in relation to the invalidity of the charges] is correct" (AT 3.40-41). However, as he somewhat reluctantly conceded in this Court, this amounted to an admission of each of the elements of the offence (AT 3.5-15). The applicant must have done so on the understanding that the matter would then proceed in the ordinary course to a sentencing hearing; i.e., that sanctions would follow on the basis of his guilty pleas. The applicant's "high stakes gamble" does not appear to have taken into account the possibility that the prosecution might later be able to reinstate the fraud charges if the guilty pleas were withdrawn or the convictions later set aside.
Insofar as the applicant suggests that he was not actually attacking the plea bargain (he was just appealing his conviction) and that he did not actually withdraw his guilty plea, this is mere sophistry. The decision to challenge his conviction on a basis that undermined the integrity of his guilty pleas was tantamount to seeking a withdrawal of the pleas. The applicant must have appreciated that the Crown was offering the plea bargain on the basis that he would plead guilty and then be liable to sentence for the offences to which he had pleaded guilty. The suggestion that it was not implicit in the plea bargain that the applicant would be subject to sentencing for the admitted offences makes a mockery of the process.
As to the first proposed ground of appeal, the trial judge did not hold that the plea bargain was not an enforceable agreement as such; rather, her Honour pointed to authorities that suggested that ordinary contractual analysis in relation to a plea bargain was not appropriate. The gravamen of her Honour's conclusion on the plea bargain indicates that her Honour had in mind that (if approached on a contractual analysis) the parties were not ad idem as to the bargain they had made. There is no little force in that conclusion. Her Honour expressly took the existence of the plea bargain into account when considering whether the prosecution of the fraud charges was oppressive.
The conclusion that her Honour reached in this regard was not manifestly unreasonable. On the contrary. The reality is that the applicant chose (by challenging the guilty pleas) to depart from the plea agreement. The suggestion that the plea bargain involved nothing more than making the plea (with the intention of then challenging the conviction and undermining the integrity of the plea) is artificial. To accept such an argument would itself have the capacity to bring the administration of justice into disrepute.
As to the proposed second ground of appeal, her Honour did not err in the conclusion that it was not an abuse of process for the Crown to reinstate the fraud charges in the circumstances to which her Honour referred. No more was required by way of examination of the circumstances of the case or the terms of the plea bargain than her Honour carried out to reach that conclusion. Her Honour took into account the relevant submissions and explained her conclusion as to those submissions.
Insofar as complaint is here made by the applicant that there was no consideration by her Honour as to whether it was "legitimate to inflict such a burden" (i.e., the burden of a subsequent prosecution for the s 319 charge), that criticism cannot be sustained. Her Honour addressed the various matters (including costs) by reference to which it was submitted by the applicant that it was oppressive for the prosecution to have filed the ex officio indictment. In this regard, the applicant's complaint is that the conduct of the prosecution "effectively disentitled the prosecution from a second bite of the cherry". That, however, conveniently ignores the applicant's own conduct in entering into the plea bargain with the intention of moving to avoid its consequences (a matter that her Honour took into account).
Despite the delay in re-charging the applicant, her Honour's conclusion that this was not an abuse of process has not been shown to be incorrect. Again, the contrary is true. While it can now be said, with hindsight, that the s 192G charges were doomed to fail, that was not clearly the case at the time (as evidenced by the fact that the applicant's argument was not stayed by other judicial officers who heard the matter before Adamson J.) While the applicant complains that it cannot be said (in the absence of evidence of a mistake by the prosecution) that the prosecution's decision to continue to prosecute the charges was mistaken, it is not necessary here to explore the prosecution's understanding of the matter at that time. What is relevant to note is that the prosecution submitted that there was a basis to distinguish Jamieson. That submission ultimately failed but it was not found to be without a proper basis for its making. It does not follow that because the submission was ultimately unsuccessful, its making is evidence of mala fides or malpractice. There is no foundation for the serious allegations levelled by the applicant against the prosecution in this regard (allegations that any lawyer would realise should not be made without a proper basis).
It is to be observed that the section addresses only an interlocutory judgment or order, it requires leave to be granted and is of a limited scope.
The context in which s 5F operates is the existence of a criminal proceeding for the prosecution of an Accused on indictment. The ordinary and appropriate course of such criminal proceedings is to avoid fragmentation of the criminal trial, and for the appellate process to take place after conviction and sentence: Tonari v The Queen [2013] NSWCCA 232.
Any application by an Accused to the Court of Criminal Appeal must be filed within a short period (14 days) of the making of the interlocutory judgment or order sought to be impugned.
The nature of the power of this Court in s 5F was described in this way by Mahoney JA (with whom Gleeson CJ and Dunford J agreed) in R v Van Phu Ho (Court of Criminal Appeal, unreported, 18 July 1994):
…, it was not the intention of the legislature that orders made in the course of the exercise of … interlocutory powers should ordinarily be the subject of appeals which would complicate trials or delay them. The purpose of the interlocutory procedure was, I think, to clear away any possible irregularities in advance and so to facilitate trials rather than to invite a sequence of appeals against interlocutory orders.
No doubt it was for this purpose that s5F provided that in a case such as this there was to be no appeal against the interlocutory orders except by leave of this Court. I do not think that leave should readily be granted.
The remarks of Sully J (with whom RS Hulme and Hall JJ agreed) in Natoli v R [2005] NSWCCA 292 at [7] express the same sentiments:
7 It is trite that this Court will not interfere with the orderly progress of a first instance trial in the absence of wholly exceptional circumstances. That is a well-entrenched position of the Court of Criminal Appeal; and its rationale is a proposition of high public policy: that is to say, the proposition that too freewheeling an interference by the Court of Criminal Appeal with a current trial at first instance, so far from promoting the rule of law and doing justice according to law, would promote a situation of curial and forensic chaos.
Here, the applicant first requires an extension of time to bring his application for leave to appeal under s 5F. If successful in obtaining an extension, the applicant needs to persuade the Court that there should be a grant of leave.
To obtain an extension of time an applicant needs to explain the matters and circumstances which have given rise to the need to obtain that extension. Those matters and circumstances are important, but are not the only matters which a court needs to consider in determining whether it is in the interests of justice to grant the extension.
The full chronology of the significant events is set out in the joint judgment between [37] - [44]. The judgment of Harris DCJ refusing to permanently stay the first trial was delivered on 3 July 2023 in the course of the first trial. That trial resulted in a verdict of guilty being returned by the jury on 21 July 2023, whereupon a conviction was entered.
The time for the filing of a s 5F application expired on 18 July 2023. A 14-day period after the conviction was entered would have expired on 4 August 2023, by which time there was no reason to wait any further to file the application. The application was not, in fact, filed until 24 January 2024 which is around 6 months after the time limit fixed for bringing an application.
The second trial did not commence until 14 November 2023. It concluded on 29 November 2023 when the applicant was acquitted by the jury. The applicant provides no explanation about what he was doing in this nearly four-month period between the trials which could describe, or explain, much less justify any inability to make this application. Nor does he identify any barrier to the making of this application.
At [54], the joint judgment records the explanation given by the applicant. It seems clear that the applicant chose, in a deliberate and carefully considered way, to make this application at a time he considered to be most favourable to him. He simply ignored the required time limit. I do not consider the explanation provided, in light of the applicant's forensic motivation, to be a satisfactory basis for granting an extension of time.
There are other considerations in this case which point me to the same conclusion. Shortly stated they include:
1. The effect of s 5F(6) which permits the applicant to raise any ground relied upon in this application in the event that he appeals, or seeks leave to appeal against his conviction. In other words, the refusal to extend time has no adverse impact on the applicant;
2. The relief sought by the applicant is inutile and is incapable of having any substantive effect. The trial cannot now be permanently stayed since it has continued to completion and a conviction has been entered. Setting aside the judgment which refused to order ae permanent stay has no effect on the continuation to sentence of the criminal proceedings. The determination of this application is an entirely hypothetical exercise;
3. Extending time so as to permit this application to be brought is inconsistent with the application of the principle of finality in this case. In light of all that has occurred, including that the only remaining issue to be determined is the sentence which ought to be imposed upon the applicant, there is no good reason to fragment the criminal process by extending time to permit this application to be heard prior to the sentence hearing; and,
4. At an impressionistic level or taking a "rough and ready" view of the substance and merits of the proposed application for leave to appeal, I do not consider it to be demonstrated that the failure to order a permanent stay of the trial has produced any unfair trial, or other miscarriage of justice: see Gould v R [2023] NSWCCA 103 at [117] Bell CJ. Nor is there any principle of general application raised by the applicant which needs to be determined in order to obtain the relief he seeks. The issue of general principle dealt with in the joint judgment arises from one of the Crown's submissions in opposition to a grant of leave.
Taking all the above considerations into account, I do not consider that it is "just under the circumstances" or that the interests of justice require that an extension of time should be granted to permit the applicant to bring an application for leave to appeal under s 5F.
I would order that the application for an extension of time be dismissed.