[2017] NSWCCA 42
FT (a pseudonym) v The King [2024] VSCA 90
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
97 ALJR 857
Diocese of Lismore [2023] HCA 32
97 ALJR 857
House v The King (1936) 55 CLR 499
[1936] HCA 40
Jamieson v The Queen (1993) 177 CLR 574
Source
Original judgment source is linked above.
Catchwords
[2017] NSWCCA 42
FT (a pseudonym) v The King [2024] VSCA 90
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 3297 ALJR 857
Diocese of Lismore [2023] HCA 3297 ALJR 857
House v The King (1936) 55 CLR 499[1936] HCA 40
Jamieson v The Queen (1993) 177 CLR 574[1988] HCA 70
R v Blanco [1999] NSWCCA 121(2002) 49 ATR 78
R v Haque [2022] ACTSC 10
R v Karageorge (1998) 146 FLR 100(1998) 103 A Crim R 157
R v Obeid [2018] NSWSC 1024
R v Schwabegger [1998] 4 VR 649(1997) 38 ATR 30
R v Thames Magistrates' Courtex parte Polemis [1974] 2 All ER 1219
R v Todd [1982] 2 NSWLR 517
R v Wong [2002] NSWCCA 527(2002) 137 A Crim R 120
Re Will of Gilbert (1946) 46 SR (NSW) 318
Rohan v R [2018] NSWCCA 89
Sabra v R [2015] NSWCCA 38
Judgment (5 paragraphs)
[1]
The applicant's submissions
The applicant filed a number of documents on this application but at the hearing he confirmed that he relied upon his submissions headed "Applicant's Final Outline of Submissions" filed on 26 March 2024. In those written submissions, he submitted that the interlocutory decision renders delay as "an irrelevant consideration about which there is no mitigatory value". It was further submitted that the decision prevents "the amplification of delay as a mitigating factor" which is inconsistent with other intermediate appellate courts which have "followed Scook".
It was submitted that the relevance of the subpoenas is to make submissions at his sentencing proceedings that the entire period of delay is due to the prosecution's conduct. He submitted that his case is an appropriate one in which to substantially reduce a sentence to mark the court's disapproval of the prosecution's conduct which he described in his submissions as "utterly repugnant" as it jeopardised his legitimate private interests.
The applicant submitted that "[t]here appears to be a sick and dysfunctional practice developing in which prosecutorial authorities offer no explanation whatsoever for the delay which involves nonchalant forensic paralysis. Nothing has changed, in this regard, from the dark days discussed by Gleeson CJ in Regina v Fifita (unreported Court of Criminal Appeal NSW 26 November 1992)".
He further submitted that, "[i]t is clear that those in decision-making roles in the Director's chambers have no concept of the unfairness inherent in commencing litigation after a person has been lulled into legitimate expectation as to their future". The applicant then cited Basten JA in Director of Public Prosecutions (Cth) v Pratten (No 2) at [97]-[103].
Under a heading "Reconciliation of Authority," the applicant submitted that he wishes to agitate the correctness of the decision in R v Donald. Despite this, during the hearing of this application for leave he submitted that that argument would wait until his appeal against his sentence.
Under a heading "Factual Background/Argument", the applicant noted the delay and submitted that "[t]he real issue from the applicant's perspective is the reason for the delay in commencing proceedings by ex officio indictment and about which there has been no explanation. The applicant was not prepared to tolerate a situation in which there was no evidence relating to the reasons for the delay." The applicant went on to submit that the history of this matter can only be described as a "judicial nightmare".
The applicant then submitted that the decision of the trial judge is wrong because it proceeds on the presumption that R v Donald is correct. Although the applicant accepted that it was not necessary for this Court to delve into the principles relating to delay, he submitted that this Court should quash the erroneous decision because it prevents him from developing a meaningful evidentiary record. It was submitted that it is irrelevant that the judge will accept his argument on sentence regarding delay because this Court may revisit the principle identified in R v Donald where it has cogent evidence of gross misconduct on the part of prosecuting authorities. The willingness of Harris DCJ to find the (second period of) delay inexplicable is insufficient for his forensic purpose.
Overall, the applicant submitted that he has been denied his right to put forward his defence on sentence and that for any judicial officer to deny a party an opportunity to call evidence is objectively unreasonable and warrants an order quashing that decision. He relied on the decision of Alexandroaia v R (1995) 81 A Crim R 286 in support of this submission.
At the hearing of this application for leave, the applicant initially indicated that he was content to rely upon his written submissions but then proceeded to make further submissions including reliance upon the decision of Adams J in R v Wong (2002) 137 A Crim R 120; [2002] NSWCCA 527.
At one stage, the applicant submitted that he had a right to "cross-examine" these proposed witnesses. When the presiding judge inquired of him how he could have such a right when they would be his witnesses, he accepted that he could only ask non-leading questions and would have to be content with their answers. When it was suggested to him that he could always ventilate any complaints he had about the relevance of delay at his foreshadowed application for leave to appeal against his sentence, he responded that he would not have the evidence to do so and the matter would have to be remitted at that time.
The applicant contended that leave should be granted because the ability of any offender to call evidence at sentencing in an "unbridled, unfettered way subject to the rules of evidence" is not an unimportant question. He submitted that there is a form of "nonchalant forensic paralysis affecting the DPP" and "their practices have to change".
[2]
The respondent's submissions
The respondent's position was that there should be no grant of leave in this matter or, if leave is granted, the appeal should be dismissed. Counsel for the respondent filed detailed helpful submissions including the relevant principles and authorities. I will refer to some of those submissions and authorities in my consideration below.
[3]
Consideration
The respondent accepted that this Court has jurisdiction to grant leave and, if leave is granted, to determine the appeal. Section 5F of the Criminal Appeal Act provides for an appeal against an interlocutory judgment or order in connection with proceedings for the prosecution of offenders on indictment in the Supreme Court or in the District Court: s 5F(1)(a). Any party to proceedings under s 5F may appeal to this Court against an interlocutory judgment or order given or made in the proceedings if this Court grants leave to appeal: s 5F(3)(a).
As Simpson AJA recently observed in R v DK [2023] NSWCCA 281 at [3]-[32], the jurisdiction of the court under s 5F depends upon the judgment or order against which the applicant seeks leave to appeal being interlocutory in nature, and requires that the judgment or order relates to the criminal prosecution of an offender on an indictment.
An order setting aside a subpoena falls within the scope of s 5F; Beech-Jones J observed the following in that regard in R v Obeid [2018] NSWSC 1024 at [44]:
"An application to set aside a subpoena issued at the behest of the accused in proceedings on indictment is clearly an interlocutory process in criminal proceedings."
Similarly, in Rohan v R [2018] NSWCCA 89 this Court considered an application for leave to appeal against the refusal of a trial judge to grant leave to issue a subpoena for production under s 298 of the Criminal Procedure Act 1986 (NSW).
As for the relevant standard of appellate review, in Khanna v Woolworths Group Ltd [2022] NSWCA 94 Gleeson JA (Leeming JA agreeing) considered an appeal against, inter alia, an interlocutory judgment given in civil proceedings in the District Court refusing leave to issue a subpoena. Gleeson JA identified the decision as discretionary in nature and noted that the applicant did not identify any House v The King error: House v The King (1936) 55 CLR 499 at 504 to 505; [1936] HCA 40. Gleeson JA also noted (at [20]) that the court exercises great restraint in interfering with an interlocutory decision on a matter of practice and procedure citing, inter alia, Re in the Will of Gilbert (1946) 46 SR (NSW) 318.
The observations of Jordan CJ in Re in the Will of Gilbert were recently extracted with approval in the context of an interlocutory appeal in criminal proceedings in Koschier v R [2024] NSWCCA 24. In Koschier v R, Bell CJ (with whom Harrison CJ at CL and Chen J agreed) considered an interlocutory appeal under s 5F of the Criminal Appeal Act against the refusal to grant a permanent stay and noted the following at [43]:
"In The Will of Gilbert (1946) 46 SR (NSW) 318 at 323, Jordan CJ famously said that:
'… if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.'"
His Honour went on [44] to observe that Jordan CJ's observations remain apposite, as has been recognised in a number of decisions which have involved s 5F of the Criminal Appeal Act including DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [76] ("DAO"). As for the relevant factors to have regard to when considering whether leave ought to be granted, Bell CJ summarised the various test at [47] as follows:
"Various tests have been formulated for the grant of leave to appeal in the context of an interlocutory decision in criminal proceedings. In DAO at [76], Allsop P spoke of the need for 'demonstration of error of principle (with a sufficient degree of clarity) as well as the possibility or likelihood of substantial injustice' (emphasis added). The then President also added that 'leave can be refused even if an error of principle has been disclosed'. Other judges have spoken of the need to show 'an error of principle apt to cause irregularity or injustice' (emphasis added): O'Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19 at [48] quoting R v Van Phu Ho (Court of Criminal Appeal (NSW), 18 July 1994, unrep) (Mahoney JA, Gleeson CJ and Dunford J agreeing); Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 at [25]; Rosamond v R [2022] NSWCCA 251at [7]."
With these principles in mind, I turn to consider the threshold question of whether leave should be granted in this matter.
The starting point is that leave would only be granted if the applicant can demonstrate an error of principle and the possibility of substantial injustice. I am not satisfied that he has established either of these. The applicant has not identified any error on the part of the trial judge (either House error or otherwise) in refusing leave to issue the subpoena to Smith SC DCJ nor in setting aside the two subpoenas to the ODPP solicitors. Her Honour did not act on any wrong principle, nor have regard to irrelevant considerations, nor fail to take into account any material consideration, nor mistake the facts. Nor am I satisfied that the applicant will suffer any substantial injustice if those witnesses are not called at his proceedings on sentence.
Under Ground 1, the applicant contends that the trial judge erred by denying him the opportunity to present evidence relating to the reasons for the delay between 2017 and 2023. Considering that ground in its terms, it is misconceived. The applicant is not being prevented from presenting evidence relating to the reasons for the delay between 2017 and 2023. As her Honour observed in her reasons, there are court records and other documents which can go to establish the delay and some of the reasons for it. In addition, the applicant proposes to give detailed evidence about the impact of delay at his proceedings on sentence.
Despite contending that the "real issue" from the applicant's perspective is the ex officio period, the ground of appeal refers to the period from 2017 until the present. The applicant submitted that he wants to make submissions that the entire period of the delay is referable to the prosecution's conduct. But he is not being precluded from making such a submission.
The nub of the applicant's complaint under this ground is that he is being prevented from calling evidence from three particular witnesses about the reasons for one discrete period of delay in circumstances where her Honour has already indicated that she would not be assisted by that evidence. As is clear from the ex tempore judgment, there are other available sources of information to establish the nature and scope of the delay. Significantly, the three prospective witnesses could only give direct evidence about the second period of delay (from the date of Adamson J's orders on 19 November 2019 until the notification that an ex officio indictment would be filed on 25 February 2021). The Crown has clearly conceded that this period is unexplained, and her Honour has expressly indicated to the applicant that she proposes to find that second period of delay to be unreasonable.
At the hearing of this application, the applicant submitted that the indication by her Honour that she would find the second period of delay to be unreasonable was insufficient for his purposes as there are degrees of reasonableness. This submission is based on his contention that the decision in R v Donald is wrong. At the hearing of this application, the applicant pointed to a single judge decision in the Australian Capital Territory in which Buss J's seventh point has been endorsed (R v Haque [2022] ACTSC 10) and another in which it has not (R v Carpenter [2022] ACTSC 6). He also relied on the observations of Adams J in R v Wong to suggest there was conflicting authority in NSW on this issue. Despite this, he did not produce any decision in which a sentencing court has expressly reduced a sentence beyond what would otherwise have been imposed in order to punish the relevant prosecuting authority, including Scook v R itself. I accept the applicant's submission that there is no need for this Court to consider whether R v Donald is plainly wrong for the purposes of determining this interlocutory appeal.
The applicant has not identified any error in the decision of the trial judge to set aside the subpoenas and refuse leave to issue the third. His contention that the interlocutory decision means that delay is effectively irrelevant and has no mitigatory value on sentence cannot be accepted and is inconsistent with the findings of the trial judge. Not only has the applicant failed to establish any error by the trial judge, he has failed to positively establish any apparent relevance of the evidence to be adduced by the prospective witnesses: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65] per Bell CJ.
Ground 1 has no merit.
Under Ground 2, the applicant contends that the trial judge failed to have proper regard to the need to ascertain the reasons for the delay in a careful chronological way. Again, this ground is misconceived. To some extent it overlaps with Ground 1.
Once it is accepted that there is no error in her Honour's conclusion regarding the significance of delay then the reasons for the delay do not advance the matter on sentence. In any event, the applicant does not identify how it is the trial judge is said to have erred on this issue. Her Honour properly identified the relevant sentencing principles concerning delay for the purpose of the subpoena issue and will no doubt apply them in sentencing the applicant as well.
Overall, the applicant has failed to establish that leave to appeal should be granted in this matter. Accordingly, I would propose the following order:
1. Leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1913 (NSW) is refused.
[4]
Endnotes
On 31 May 2024, the court was made aware that the two solicitors subpoenaed by the applicant in fact had carriage of the matter at different times. Only Mr Leach had carriage of the applicant's matter during the relevant period. Mr Jones had carriage of the matter at an earlier time.
See above.
[5]
Amendments
07 June 2024 - Coversheet - Decision: "1912" instead of "1913"; Cases Cited: formatting
[17] - "Tanya" instead of "Tania"
[19] - "an Acting Deputy Director of Public Prosecutions" instead of "a Senior Crown Prosecutor within the ODPP"; endnote inserted after "specified period"
[31] - endnote inserted at the end of the paragraph
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: 07 June 2024
LEEMING JA: I have had the advantage of reading the reasons for judgment of N Adams J in draft. I agree with the orders her Honour proposes, and subject to the following, with her reasons. I shall not repeat the background or principles.
It is difficult to avoid the conclusion that the applicant was and is labouring under a misapprehension when he sought to issue the three subpoenas to attend to give evidence. In this Court, there was the following exchange:
"APPELLANT: … So Tanya Smith, as she then was, has supervisory authority over the prosecution, and Nicholas Leach is nominated as the solicitor with carriage. Then nothing happens for months. I then send a letter on 25 February saying, 'Dear Crown, I'm applying for admission, please send me the brief.' A week later I get the ex-officio. So that history warrants at least me being able to cross-examine all of these people as to why there was delay, what was happening--
LEEMING JA: How do you get to cross-examine anyone?
APPELLANT: Well it's my case on sentence to when I open--
LEEMING JA: You get to cross-examine the witnesses you want to call?
APPELLANT: Yes, absolutely …"
Bearing in mind that the applicant has a law degree, there followed an exchange concerning the way in which testimonial evidence could be adduced by a party, during which the applicant appeared to accept that he could only ask non-leading questions and would be bound by the answers. However, immediately thereafter he resumed his adherence to the position that he had a right to cross-examine.
There is nothing to suggest that any basis will be made out for the applicant to be granted leave to cross-examine any of the witnesses if the three subpoenas were permitted to be called upon at his sentencing hearing. Hence, his repeatedly stated purpose will not be achieved. The misconception about subpoenas to attend and give evidence is perhaps not confined to the applicant, and reflects the fact that in civil proceedings, an unrepresented litigant who seeks to issue a subpoena is not permitted to do so without leave: Uniform Civil Procedure Rules 2005 (NSW), r 7.3(1). Those rules do not apply to criminal proceedings governed by Pt 3 of Ch 4 of the Criminal Procedure Act 1986 (NSW).
It is not necessary for present purposes to consider the standard of review that governs an appeal from a decision to set aside a subpoena. I mention, only for completeness, the possibility that the reasoning in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857 might suggest that the decision to set aside a subpoena is "binary" and therefore more amenable to review than the principles in House v The King might suggest; cf by way of example the argument in FT (a pseudonym) v The King [2024] VSCA 90 at [49]-[64] concerning the refusal of bail. On one view, a decision to set aside a subpoena is less discretionary than a decision to refuse to order a stay: conditional stays are common, and different judicial officers might reasonably regard different conditions as apt to address the unfairness which grounds an application for a stay.
The first period (8 May 2018 until 19 November 2019)
On 8 May 2018, the applicant was charged by a Court Attendance Notice filed in the Local Court with two offences contrary to s 192E(1)(b) of the Crimes Act (fraud, for which the maximum penalty is 10 years imprisonment). Shortly thereafter, he sought a permanent stay of those proceedings on the basis that the facts alleged against him did not amount to an offence under s 192E(1)(b) given the decision in Jamieson v The Queen (1993) 177 CLR 574; [1993] HCA 48 ("Jamieson").
On 12 September 2018, the ODPP advised the applicant that the charges would be replaced by two counts contrary to s 319 of the Crimes Act (pervert the course of justice) with an additional alternative charge under s 192G(b) and 12 counts contrary to s 192E.
Thereafter there were numerous court dates and correspondence which resulted in the applicant pleading guilty to two "rolled up" charges contrary to s 192G(b) of the Crimes Act (intent to defraud by false and misleading statement, for which the maximum penalty is 5 years' imprisonment). On 7 June 2019, he was sentenced in the Local Court to an effective sentence of 12 months' imprisonment ordered to be served by way of an intensive corrections order.
Prior to being sentenced in the Local Court, the applicant had appealed against his convictions to the Supreme Court under s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW). On 19 November 2019, (after he was sentenced), Adamson J (as her Honour then was) upheld his appeal and ordered that the applicant's convictions be set aside. The decision was based on the decision of the High Court in Jamieson. Her Honour delivered her reasons two days later on 21 November 2019: Sayer-Jones v The Director of Public Prosecutions (NSW) [2019] NSWSC 1615.
The third period (3 March 2021 to the present)
The applicant subsequently filed a number of motions including an application for a permanent stay of the s 319 proceedings. That application was unsuccessful but whilst it was pending this Court granted him a temporary stay: Decision Restricted [2022] NSWCCA 99. The applicant subsequently abandoned that substantive appeal.
The trial of the two s 319 charges was due to commence on 5 June 2023. On 13 June 2023, Harris DCJ ordered that there be separate trials. On 21 July 2023, the first jury found the applicant guilty of the first of the two charges and on 29 November 2023 a second jury found the applicant not guilty of the second charge. On 3 July 2023, during the first trial, Harris DCJ refused the applicant's application for a permanent stay. I have extracted some portions of that decision below at [57]-[62].
On 24 January 2024, the applicant filed a notice of appeal from Harris DCJ's decision on 3 July 2023 refusing a permanent stay. On 22 April 2024, this Court refused leave to appeal that decision: Sayer-Jones v R [2024] NSWCCA 54.
On 15 February 2024, at the applicant's request, two subpoenas to attend to give evidence were issued by the Downing Centre District Court to Mr Leach and Mr Jones requiring them to attend court on 22 February 2024. On that same day, the ODPP filed a notice of motion seeking that those subpoenas be set aside.
On 16 February 2024, the matter came before Harris DCJ. Her Honour indicated that the applicant wished Tanya Smith SC DCJ to give evidence. The subpoena argument was listed for hearing on 21 February 2024. The proceedings were later adjourned to the following day, 22 February 2024.
The relevance of delay on sentence
Delay can be a mitigating factor on sentence in certain circumstances. As Street CJ observed in R v Todd [1982] 2 NSWLR 517 at 519:
"Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
It is now well settled that there are circumstances in which delay can entitle an offender to an element of leniency, including when an offender may have been left in uncertain suspense: R v Blanco [1999] NSWCCA 121 at [11], [16]. In R v Gay [2002] NSWCCA 6; (2002) 49 ATR 78, Mason P (with whom R S Hulme and Hidden JJ agreed) cited with approval the decision of the Victorian Court of Appeal in R v Schwabegger [1998] 4 VR 649; (1997) 38 ATR 30. That case concerned a lengthy and substantially unexplained delay between detection and prosecution coupled with the payment by the offender of all tax owing plus substantial penalties. Mason P extracted the following passage from the decision of Vincent AJA (at 659) at [16]:
"… Delay which is not attributable to the offender, of course, constitutes 'a powerful mitigatory factor.': R v Liang and Li (1995) 124 FLR 350 at 356; 82 A Crim R 39 at 45. It can have relevance at a number of levels. In Duncan v R (1983) 47 ALR 746; 9 A Crim R 354 the Court of Criminal Appeal of Western Australia stated at ALR 749, A Crim R 356-7:
… where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
… The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.
Further, there is, in my opinion, a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matter comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained. Additionally, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion."
The decision in R v Donald
An issue arose before her Honour as to whether, in addition to delay being a mitigating factor in the ways described above, the applicant is entitled to additional mitigation in order to punish the ODPP for its delay. He relies on the decision of Buss JA in Scook v R [2008] WASCA 114; 185 A Crim R 164 in support of this contention.
In Scook v R, the West Australian Court of Appeal considered a sentence appeal in relation to a complex and lengthy course of offending conduct, coupled with significant delay occasioned by various interlocutory applications by a co-offender. In that context, McClure JA reviewed the authorities relating to the significance of delay and summarised them as follows (at [31]-[34]):
"[31] The authorities support the following propositions. Delay itself (mere delay) is not mitigatory. Delay in combination with other relevant sentencing factors favourable to the offender, such as progress towards rehabilitation, is mitigatory. In those circumstances, delay is facilitative or causative but not itself mitigatory. As a consequence, the reason for the delay is not ordinarily relevant. It may be so if the delay was attributable to the offender (see Shore (1992) 66 A Crim R 37).
[32] It is not possible to identify all factors which in combination with delay will be mitigatory. It will depend on the circumstances. For example, in Schwabegger and Duncan, the delay contributed to a legitimate expectation that there would be no prosecution on which the offenders acted.
[33] It is the case that in the period prior to conviction and sentence, an accused is left in a 'state of uncertain suspense' which for many offenders (certainly those with prior good character) would be significantly stressful. However, that is a consequence of involvement in the criminal justice system and is not ordinarily mitigatory. An accused is entitled to avail himself or herself of all the rights and protection offered by the criminal law with the inevitable consequence of delay before conviction and sentence, but such delay is not mitigatory (unless it facilitates or results in other positive sentencing considerations). However, undue or unreasonable delay not attributable to the conduct of the accused may itself be mitigatory because it unreasonably extends the period of suspense.
[34] I would not draw an inference that the delay between the commission of the offences (or from the time of the ASX referral to ASIC) and the appellant being charged in December 2002 is unreasonable having regard to the nature and extent of the appellant's offending (which involved the use of a number of innocent agents and active concealment of his role), its factual complexity and the need to obtain evidence on each count. The delay between the appellant being charged and sentence is attributable in large measure to Mr Braysich's interlocutory applications. In my view, the proper use of interlocutory applications by a co-offender properly joined does not render the consequential delay unreasonable."
The interlocutory decision on 22 February 2024
The trial judge identified the purpose of each of the three subpoenas as being the applicant's wish to "demonstrate at his sentence hearing that the ODPP acted improperly" and with "moral delinquency" causing a lengthy delay, and noted his submission that this was a relevant factor in mitigation on sentence. Her Honour noted the applicant's submission that the sentence should not only reflect the impact of the delay on him but also reflect an element of punishment of the ODPP. Her Honour then extracted the following passages from the applicant's written submissions:
"In respect of Mr Leach, he submitted that his evidence will relate to him:
'Receiving the brief in 2019 or 2020 in the aftermath of the successful conviction appeal, the obtaining of ASIC documents in 2020, the preparation of a report to Tanya Smith SC which became the extremely complex Crown Case Statement, which was simply an exercise in summarising the facts taken from the then existing brief without any scrutiny or further investigation of any kind whatsoever, and then taking no action whatsoever between 2019 and 2021.
Mr Leach is being called to establish:
(a) his moral delinquency in taking a leisurely approach to litigation, which is manifestly unreasonable;
(b) the fact that there was no consideration of any kind given whatsoever to the consequences of commencing litigation;
(c) the fact that there was no consideration as to whether the inaction would give rise to a legitimate expectation and thus be productive of unfairness; and
(d) to ensure that the actual evidence, as opposed to weak general concessions, is before the Court.
…
Mr Leach's evidence will also relate to the fact that this entire case was unreasonably prolonged because the Crown chose to prosecute the second matter, which the jury correctly found was baseless and otherwise lacking in sufficient cogency to justify a conclusion that the offender had done anything wrong beyond reasonable doubt.'
In respect of Joshua Jones, Mr Sayer-Jones submitted that his evidence will relate to:
'A number of matters, including the fact that the Crown had taken an all-or-nothing approach to the litigation; that the proceeding was needlessly complex because of procedural arguments taken by the prosecution; and that the delay in this Court was a necessary consequence of the unreasonable attitude taken to the litigation; and the delays which have occurred in this case for which the offender is not responsible at all. Mr Jones' evidence will relate to a significant issue of forensic significance namely whether there were attempts to resolve the matter with a plea to a single offence and whether the DPP took an all-or-nothing approach.'"
Her Honour then noted the relevant decisions on the relevance of delay to sentencing and either cited or extracted from the following decisions: Sabra v R, R v Todd, R v Blanco, R v Schwabegger, R v Gay, Scook v R, Mill v R [1988] HCA 70, King v R (1998) 99 A Crim R 288 and Coles v R [2016] NSWCCA 32. Her Honour then went on to state the following:
"The submission of Mr Sayer-Jones that where delay is the fault of misconduct by the prosecution, the sentence imposed on an offender should include an element of punishment of the prosecuting authorities, is not sustainable and indeed in this State it has been disavowed by the Court of Criminal Appeal: see R v Donald [2013] NSWCCA 238 at [49] where Latham J observed that while the authorities of this state had not departed from the summary of Buss JA in Scook, this did not include the appropriateness of mitigating a sentence is a mark of disapproval of tardy prosecutorial conduct. The focus is on the impact of delay, including as stated in Blanco, the public interest in bringing to justice quickly those suspected of serious criminality.
The principles arising from the cause of delay relate to whether the delay was the fault of the prosecuting authorities of the offender or an unrelated cause. Other than what has since been disavowed in Scook, the principles do not include or support a submission that the fault was because of unconscionable, as opposed to other unreasonable conduct of the prosecution.
In any event as I made clear to Mr Sayer-Jones, having regard to the material I have read (including confidential trial voir dire exhibit 11 and its privileged DPP communications relating to the institution of proceedings), his argument suggesting unconscionable and improper conduct by the Crown is not assisted by its contents.
While the Crown concede that the delay between 15 November 2019 (when Adamson J quashed Mr Sayer-Jones' Local Court convictions) and notifying Mr Sayer-Jones on 25 February 2021 of its intention to file an ex officio indictment, which they did on 4 March 2021 is 'inexplicable'; as I indicated to the parties this morning for the purpose of sentence, I am satisfied on the totality of the evidence, that the delay was in no way attributable to Mr Sayer-Jones and that it was unreasonable conduct by the Crown. The Crown's concession that the delay is inexplicable, that is, unable to be explained are accounted for, is a concession of a dilatory approach by the ODPP and its officers to the prosecution of Mr Sayer-Jones in 2020." (Emphasis added.)
Nothing turns on this because this is not merely a case where the applicant has failed to make out a proper case of error. This is a case where the orders made by the primary judge were clearly correct. It is sufficient to say that the applicant has not identified a legitimate forensic reason for the subpoenas, the reason he has identified is incorrect, and as N Adams J explains in detail, no legitimate forensic reason is apparent. It follows that leave must be refused.
CAMPBELL J: I have had the great advantage of considering the judgment of N Adams J in draft. I agree the Court should make the order proposed by her Honour for the reasons her Honour gives. I wish to add some observations of my own in relation to some of the matters advanced in oral argument by the applicant. I do not conceive that what I have written is in any way inconsistent with N Adams J's comprehensive reasons.
Underpinning the interlocutory order of Harris DCJ from which the applicant seeks leave to appeal is the ruling that the subpoenas issued to require the attendance of two lawyers employed within the Office of the Director of Public Prosecutions and the application for leave to issue a subpoena to sitting District Court judge lack a legitimate forensic purpose. As N Adams J points out (at [63] below) the applicant advanced very expansive oral submissions. He asserted a right to run "the case of my choice at first instance" ([11.9T]). He submitted that the decision of Alexandroaia (see [70] below) was a "seminal decision that basically says that a party should be entitled to whatever they want" (15.40T). And that the earlier English case of R v Thames Magistrates' Court; ex parte Polemis [1974] 2 All ER 1219 (erroneously attributed by the applicant to Lord Denning MR, rather than Lord Widgery CJ) is authority for the proposition "if a party wants to raise evidence of whatever kind, subject to the rules of evidence and it not being a waste of time or some other legal ground, they should be entitled to do that" (15.48T).
I confess to having found these contentions startling. Obviously, such wide propositions as these would deprive the expression "legitimate forensic purpose" of any practical meaning at all as a rule of limitation. Case-management considerations would be taken out of the hands of the judges and placed in the hands of a party, depriving the court of its inherent or implied power to control its own processes. I was relieved to realise that even a slight acquaintance with the detail of those decisions dispelled the idea that either stood for the unruly principle contended for by the applicant.
I acknowledge that the applicant did admit of the "rules of evidence" and obvious time wasting as operating as breaks upon the supposed right of a party "to raise evidence of whatever kind". He appears to have overlooked, however, that those matters inform the concept of legitimate forensic purpose employed by the courts to control the unbridled determination of a party to co-opt the court's processes compelling persons not a party to the proceedings to give evidence or produce documents according to "whatever [the party] want[s]" or "of whatever kind".
Both Alexandroaia and ex parte Polemis, as it happens, concern the interplay of the requirements of natural justice with a court's power to grant an adjournment. Dealing first with ex parte Polemis, it concerned the refusal of an application for adjournment made by a ship's master charged with an offence of discharging bunker oil into navigable waters contrary to s 2(1) of the Prevention of Oil Pollution Act 1971 (UK). Because the vessel was due to sail later that very day, the hearing of the charge was brought on with considerable expedition at 2 p.m. on the day the summons was served. The master sought an adjournment to enable expert testing to be carried out, locate eyewitnesses and obtain other relevant evidence. When the matter was called on at 2:30 p.m., an adjournment was granted to 4 p.m. only. At that time, the prosecution proceeded, the master was convicted and fined a very substantial sum.
A full court of the Queen's Bench Division granted a writ of certiorari quashing the conviction. The Lord Chief Justice (Ashworth and Bristow JJ agreeing) said (at p. 1223):
"… nothing is clearer today than that a breach of the rules of natural justice is said to occur if a party to proceedings, and more especially a defendant in a criminal case, is not given a reasonable chance to present his case. It is so elementary and so basic it hardly needs to be said. But of the versions of breach of the rules of natural justice with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court, and of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense." (emphasis added)
There is nothing in this statement of principle entitling a party to the unbridled right the applicant asserts.
Alexandroaia was also concerned with the question whether the refusal by the trial judge (Sully J) of an application to adjourn a murder trial resulted in a denial of natural justice. The application for adjournment was for the purpose of determining whether evidence relevant to the defence of the accused may come to light in the proceedings of the Royal Commission into the New South Wales Police Service then being conducted by Wood J (as his Honour then was) and the completion of two coronial inquests into the deaths of persons associated with the case, one being a female who was the victim of a kidnapping count to be heard concurrently with the murder charge and, the other, a police officer who had been involved in the investigation. It had been conceded at first instance that what was being sought "was the opportunity to conduct a fishing expedition, in the sense that the appellant was unable to say just how he would or could be assisted by such enquiries" (p 288). Although the trial judge had made references to "conjecture and speculation" during his reasons, the Court of Criminal Appeal (Hunt CJ at CL, Grove and Dunford JJ) was satisfied that his Honour refused the adjournment because on the material before him "the reasonable possibility that the two accused would discover something material to support their theory [of the case] was not of such a strength as to warrant an adjournment"(p 291). Contrary to the applicant's argument here, the appeal was dismissed as the finding of the trial judge was one that was open to him and could not be disturbed on a House v The King appeal.
In coming to this conclusion, the Court followed and applied ex parte Polemis, although it stressed it was necessary for the appellant to establish "a resulting miscarriage of justice" before the appeal could otherwise be allowed. Their Honours also said, "even the need for an appearance of justice requires some limitation to be placed upon the right of an accused to delay his trial in order to conduct further investigations" (p 289, original emphasis). Their Honours did not think it possible "to formulate any hard and fast rule as to where the line should be drawn in every case" (p 289). Their Honours were content to adopt the test which had been proposed by the appellant in these terms (pp 289-290):
"Was there a reasonable possibility that material of substantial assistance [to the defence] would be obtained if the trial were delayed until [the completion the inquests and the Royal Commission were completed]."
It was not necessary to demonstrate that there was reasonable possibility that the material obtained would provide a successful defence.
It should be said that the considerations referable to whether the refusal of an adjournment involved a denial of natural justice were recognised by the Court in Alexandroaia as being somewhat different from whether there was a legitimate forensic purpose to obtain documents under subpoena (p 289), which in my view may be different again from the considerations referable to a legitimate forensic purpose for a subpoena to give evidence. It is clear from the judgment that there is no such unbridled right to call whatever evidence a party thinks necessary established by the decision in Alexandroaia. The applicant's submissions to the contrary must be rejected.
Reference should also be made R v Karageorge (1998) 146 FLR 100; (1998) 103 A Crim R 157 relied upon by the applicant. Levine J (Sully and Simpson JJ agreeing), albeit obiter dictum, with regard to "a completely unexplained delay" of three years between the detection of the offending and the charging of the appellant, said that "in the absence of clear evidence that points to the appellant being responsible for the delay it seems to me appropriate that the delay should be mitigating" (p 176, citation omitted). What is apparent from Karageorge, and the other cases concerning unwarranted delay as a mitigating factor, is that the assessment of delay depended upon an evaluation of the objective facts as established by the record. We were not referred to any case in which an offender was permitted to call a prosecution solicitor to ask questions about the reason or explanation for the delay. If anything, the cases suggest that the prosecution carries at least an evidential burden to rebut an appearance of unwarranted delay for which the offender is not clearly responsible.
N ADAMS J: The applicant, Robert Sayer-Jones, seeks leave under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal against interlocutory orders made by Harris DCJ on 22 February 2024. On that day, her Honour set aside two subpoenas to give evidence issued by the applicant to two solicitors employed by the Office of the Director of Public Prosecutions ("ODPP") (Joshua Jones and Nicholas Leach) and refused the applicant leave to issue a subpoena to Judge Tanya Smith SC to give evidence.
The subpoenas were issued in connection with the applicant's sentence proceedings before Harris DCJ. On 21 July 2023, the applicant was found guilty by a jury of one count of perverting the course of justice contrary to s 319 of the Crimes Act 1900 (NSW). His proceedings on sentence are presently listed for hearing before Harris DCJ on Thursday, 16 May 2024.
It is common ground that the applicant's criminal proceedings have had a long procedural history. It is also common ground that some of that delay is the fault of the Crown and will be a mitigating factor on sentence. The issue in dispute relevant to this application is whether the applicant is entitled to additional mitigation on the basis that officers within the ODPP acted "unconscionably" and with "moral delinquency". In order to prove this, the applicant wishes to examine the two ODPP solicitors who had carriage of his matter during a specified period, [1] and Tanya Smith SC DCJ, who also considered the applicant's charges during that same period in her previous capacity as an Acting Deputy Director of Public Prosecutions.
The ODPP moved to have the two subpoenas set aside (and leave refused to issue a subpoena to Tanya Smith SC DCJ) on the basis that they had no legitimate forensic purpose. The motion was successful. The application seeks leave to appeal against those interlocutory orders by notice of appeal filed on 7 March 2024 seeking the following orders:
"a. Leave to appeal granted.
b. Appeal allowed.
c. The judgment of 22nd February 2023 [2024] is set aside and in lieu thereof the notice of motion filed by the Director of Public Prosecutions (NSW) is dismissed.
d. The matter is remitted to a different judge of the District Court of New South Wales."
Mason P went on at [17] of R v Gay to agree with this passage in R v Schwabegger before observing the following at [18] (a passage relied upon by the applicant):
"One hopes that the present circumstances are fairly unique. If they are not, then the practice of the Australian Taxation Office and/or the Office of the Commonwealth Director of Public Prosecutions must change. It is bordering on the unconscionable for three years to elapse between a police interview which results in full admissions and the laying of ensuing charges. The fact that administrative penalties are imposed (prior to the police interview) and substantially met with all of their attendant burdens upon the defaulting taxpayer and his family makes it even more imperative that a sentencing court take the delay into account. The public interest as well as the legitimate private interests of the offender require a matter such as this to be brought to justice quickly. A failure by the authorities to do so will mitigate an otherwise appropriate sentence."
More recently in Sabra v R [2015] NSWCCA 38; (2015) 257 A Crim R 33, the court held (at [44]-[46]) that the sentencing judge had erred in finding that despite the offender suffering anxiety and concern over the delay, greater consequences needed to be established before the delay could be taken into account.
Buss JA agreed with McLure JA and made the following additional observations in relation to delay at [57]-[64]:
"[57] The relevance and significance (if any), for sentencing purposes, of delay in the charging of an offender, or in the disposition of a pending prosecution against an offender, will depend on all the circumstances of the particular case. Subject to that overriding principle and the necessity for flexibility of approach to accommodate the individual facts of each case, some guiding principles may be extracted from the preponderance of the authorities referred to by McLure JA. Like her Honour, I put to one side those authorities in which issues of delay and totality intersect.
[58] First, delay is not, of itself, a mitigating factor.
[59] Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.
[60] Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender's obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender's reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose.
[61] Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes.
[62] Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.
[63] Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles) will ordinarily be a mitigating factor if:
(a) the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in 'uncertain suspense'; or
(b) during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.
[64] Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question."
The third judge in Scook v R, Miller JA, agreed with both McClure JA and Buss JA.
In the present matter, the applicant relies on the sixth and seventh matters referred to above by Buss JA. The Crown accepts that the sixth factor is relevant to at least the second period of delay but submits that the seventh factor identified by Buss JA is plainly wrong and has not been followed in NSW. The Crown relies on the decisions in R v Donald [2013] NSWCCA 238 and Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42 in support of that position.
In R v Donald, Latham J (with whom Hidden and Adamson JJ agreed) considered a number of decisions on delay, including Scook v R, and observed the following at [49]:
"There is nothing in this Court's consideration of the issue of delay in Fahda, Khoury, Blanco, Barker & Gibson, TJ v R [2009] NSWCCA 99, Tourni v R [2010] NSWCCA 317 or Giourtalis v R [2013] NSWCCA 216 that departs from the summary set out above in Scook, with the exception of the last factor (a mitigated penalty as a mark of disapproval of tardy prosecutorial conduct) in Buss JA's judgment. I am not aware of any authority in this State that has endorsed such an approach to the sentencing of an offender, where the absence of a satisfactory explanation for the delay leads to the conclusion that the prosecution has been 'dilatory or neglectful'. Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it."
Similarly, in Director of Public Prosecutions (Cth) v Pratten (No 2), Basten JA (with whom Campbell J and I agreed) observed the following at [100] about the seventh point in Scook v R, albeit in the context of sentencing federal offenders (footnotes omitted):
"The suggestion that delay resulting from dilatory behaviour on the part of the prosecuting authorities may be a ground for mitigating the severity of a sentence for a federal offence, has not been located squarely within any of the factors listed in s 16A(2). Nor does it self-evidently have such a home. That is not to say that conduct occurring in the course of a prosecution will not be relevant - it clearly will be in specified circumstances. It may also be accepted that such circumstances may affect the physical or mental condition of the offender and, for example, the prospects of rehabilitation. However, it is quite another thing to say that the severity of the penalty should be reduced as an expression of disapproval of the conduct of the prosecutor or investigating authority. Even if such a course were available in relation to sentencing for a state offence, it does not follow that it supplies a basis for sentencing a federal offender. Absent statutory authority, that course should not be followed."
As will be seen below, Harris DCJ approached the question of the relevance of delay by reliance on the principles derived from these decisions including R v Donald.
Her Honour then went on to note the following in respect of the other matters raised by the applicant as a basis for "cross-examination":
"1) They already form part of the court record and/or are capable of proof by documentary evidence (including documents produced yesterday by the ODPP under subpoena which include email exchanges between Mr Sayer-Jones and the ODPP offering and rejecting pleas of guilty to alternative counts or in alternative ways).
2) In respect of count two, of which Mr Sayer-Jones was acquitted, I will not be assisted by cross examination as to whether that charge had reasonable prospects of conviction.
3) Other evidence would be inadmissible plainly attracting legal professional privilege.
4) In respect of the protracted Local Court proceedings, I made findings in my judgment of 3 July 2023 regarding the conduct of the prosecution in the Local Court and the failure to appreciate that the original charges brought against Mr Sayer-Jones had no prospect of success pursuant to Jamieson v The Queen (1993) 177 CLR 574. Again, these are not matters about which either Mr Leach or Mr Jones can assist the court by giving evidence in the sentence proceedings."
Her Honour then noted that the applicant intended to give evidence in the sentence proceedings in respect of a chronology as it related to the issue of delay and its impact on him. She concluded by stating that delay will be a matter considered by her and reflected in the sentence ultimately imposed. Her Honour then went on to make the orders the subject of this application for leave to appeal.
Sayer-Jones v R [2024] NSWCCA 73 | Case summary | Zoe