Adler v The Queen

The applicant, Mr Adler, sought special leave to appeal to the High Court of Australia from a decision of the New South Wales Court of Criminal Appeal. The dispute concerned an application for a stay of proceedings in the District Court of New South Wales. The applicant and three others were initially charged in relation to business dealings concerning property development in 1983. By the time of the application before Judge Nash, the applicant's wife and Mr Rubner had pleaded guilty to some offences. The Crown then presented an indictment against the applicant and Mr McDonald, which included a conspiracy charge against both, and several substantive charges against the applicant only.

The legal issues before the High Court revolved around the decision of the Court of Criminal Appeal to uphold the District Court judge's refusal to grant a stay of proceedings. Specifically, the applicant contended that the Court of Criminal Appeal erred in its reasoning regarding the unavailability of a potentially corroborating witness. The defence argued that a vital witness for the defence had died, and this unavailability, coupled with the witness's prior extensive examination in an inquiry under the Companies Code and the making of dying depositions, should have led to a stay of proceedings to ensure a fair trial.

The High Court was required to consider whether the Court of Criminal Appeal's statement that the unavailability of a potentially corroborating witness does not normally prevent a fair trial was correctly applied in this instance. The applicant's submission was that the specific circumstances surrounding the deceased witness, including the existence of prior examinations and depositions, were such that their unavailability did indeed prevent a fair trial, thus warranting a stay. The Court of Criminal Appeal had affirmed the District Court judge's view that the applicant could not obtain a fair trial.