Sayer-Jones v R

Background

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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).
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. On 13 September 2018, when the matter came before the Local Court, the applicant sought and obtained an adjournment of the proceedings.
13. 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]).
14. 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).
15. 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).
16. 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).
17. 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)
18. 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]).
19. 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).
20. 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".
21. 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).
22. 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).
23. 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.
24. On 4 April 2019, Greenwood LCM refused an application by the applicant to withdraw his guilty pleas.
25. 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.
26. 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).
27. 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.
28. 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.
29. 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.
30. 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.
31. 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]).
32. 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).
33. 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]).
34. The criminal proceedings were ultimately listed for trial before Harris DCJ commencing on 5 June 2023.
35. 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.
36. 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.
37. 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.
38. 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.
39. 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).
40. 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".
41. 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.

Extension of time

1. 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).
2. 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.
3. 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.

Impugned judgment

1. 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).
2. 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).
3. 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]).
4. 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]).

Proposed Grounds of Appeal

1. 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.

Jurisdiction

1. 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).

Crown Submissions on jurisdiction

1. 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]).
2. 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]).
3. 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.

Applicant's submissions on jurisdiction

1. 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).
2. 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.
3. 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).
4. 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).
5. 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).

Determination

1. 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".
2. 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.
3. 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]
4. 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.

Appeal grounds

1. 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.

Applicant's submissions re appeal

1. 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.
2. 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].
3. 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).
4. 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]).
5. 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).

Crown submissions

1. 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.
2. 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).
3. 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]).

Determination

1. 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]).
2. 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.
3. 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.
4. 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).

Conclusion

1. 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.
2. 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.
3. 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.
4. 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. …

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