BTU v The King

[2023] NSWCCA 36

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

BTU v R [2023] NSWCCA 36

Hearing dates:

16 November 2022

Date of orders:

1 March 2023

Decision date:

01 March 2023

Before:

Basten AJA at [1];
Harrison J at [32];
Fagan J at [33]

Decision:

(1) Grant the applicant leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) from the refusal of his application for a permanent stay.

(2)   Dismiss the appeal.

(3)   Direct that –

(a)   this judgment not be published other than to the parties for 14 days; and

(b)   if either or both parties propose that there be no further publication of this judgment, or part thereof, each has leave to file and serve submissions in support of that proposal within 14 days.

Catchwords:

CRIMINAL LAW – Interlocutory appeal – refusal of stay of special hearing – grounds – abuse of process – prosecution foredoomed to fail –– failure to give reasons

CRIMINAL PROCEDURE – suppression of identity of participant in controlled operation – non-publication orders – no publication of evidence given at hearing

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5F

Law Enforcement (Controlled Operations) Act 1997 (NSW), s 28

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 48

Cases Cited:

Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139

The Queen v Edwards [2009] HCA 20; (2009) 83 ALJR 717

Evans v The Queen [2006]    NSWCCA 277; 164 A Crim R 489

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kitchingman v R [2023] NSWCCA 4

Madubuko v The Queen [2011] NSWCCA 135; 210 A Crim R 249

MoubarakbhtCoorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Ex parte Reid; Re Lynch (1943) SR (NSW) 207

Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Category:

Principal judgment

Parties:

BTU (Appellant)
The King (Respondent)

Representation:

Counsel:
P Lange (Appellant)
M Millward (Respondent)

Solicitors:
Aquila Lawyers (Appellant)
C Hyland, Solicitor for Public Prosecutions (NSW)

File Number(s):

2017/00094688

Publication restriction:

Prohibit publication or other disclosure of the applicant’s name and any information tending to reveal the identity of the applicant, his associates or family members.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 June 2022

Before:

Craigie SC DCJ

File Number(s):

2017/00094688

JUDGMENT

1. BASTEN AJA: The applicant faces criminal proceedings in relation to a number of charges, primarily under the Firearms Act 1996 (NSW). In November 2021, the applicant was found by the District Court to be unfit to be tried following a hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). As a result, the matter was to proceed by way of a special hearing, pursuant to s 48(1) of that Act.

2. On 5 April 2022, prior to the commencement of the special hearing, the applicant sought a permanent stay of the proceedings on the ground that they would be an abuse of process. The application was heard by Craigie SC DCJ in April 2022. On 30 June 2022 he refused the application.

3. On 18 August 2022 (out of time), a document entitled “notice of appeal”, in fact an application for leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW), was filed. The applicant was legally represented and on bail. The sole ground of appeal sought to be relied upon alleged that the primary judge “erred by failing to give reasons”, the failures being identified in four particulars. The Director submits that each particular is untenable, and accordingly leave to appeal should be refused.

4. For the reasons set out below, the Director’s submissions should be accepted: there should be an extension of time, but leave to appeal should be refused.

Non-publication order

5. At the commencement of the hearing in this Court, and on the application of the applicant, not opposed by the Director, the Court was closed. The power to make such an order is found in the Law Enforcement (Controlled Operations) Act 1997 (NSW), s 28(1)(a). During the hearing, aspects of the evidence which would have disclosed the identity of a person who was a participant in an authorised operation, being a “controlled operation” for the purposes of that Act, were referred to and considered. It is appropriate that there should be an order suppressing publication of the evidence given at the hearing and preventing access to the Court file by any person other than the Court or members of the Court staff involved in the determination of this matter. On 21 November 2022, an order in these terms was made. It will continue to operate throughout the Commonwealth of Australia and until revoked by a judge of the Court.

6. There remains a question as to whether, as sought by the parties, this judgment should not be published on Caselaw. Because that is a matter for the Court, no order to that effect would have been appropriate. The question remains, however, whether the publication of this judgment should be restricted.

7. If the judgment were to contain information which might reveal the identity of a police informant, that would provide a proper basis for not publishing the judgment, other than to the parties. However, as will appear, the disposition of the limited issue before this Court does not involve any such disclosure. On the other hand, lest there be some matter which might be thought to raise a problem, the judgment will not be published for a period of 14 days to allow the parties to raise any issue in relation to publication. (The orders will be entered in the usual way.)

Principles governing the grant of a permanent stay

8. The principles relating to the grant of a permanent stay have been addressed in a number of recent decisions of this Court, including, most recently, Kitchingman v R [2023] NSWCCA 4 at [20]-[30], in a case involving an application for a permanent stay of a special hearing.

9. In cases such as Subramaniam v The Queen ^[1] stays have been sought on the basis that a trial by way of special hearing will be unfair to the accused who is, ex hypothesi, unfit to stand trial. That ground will not succeed by itself, because the statutory scheme envisages that the accused will not be fit to plead and conduct a defence, but provides for a special hearing in precisely those circumstances.

   1. (2004) 79 ALJR 116; [2004] HCA 51 at [28].

10. The appropriate test is not one which can be defined with precision. As noted in Kitchingman at [20], the relevant criterion can only be expressed in terms of generality, such as whether the continuation of the proceedings would be “manifestly unfair to a party” or would “bring the administration of justice into disrepute”. ^[2]

    2. Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [71(8) and (9)] (Bell P, Leeming JA and Emmett AJA agreeing).

11. In the course of oral submissions, counsel for the applicant referred to a passage in Walton v Gardiner^[3] to the effect that “proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail”. In seeking to adopt that standard, the applicant faced two insuperable problems.

    3. (1993) 177 CLR 378 at 393; [1993] HCA 77 (Mason CJ, Deane and Dawson JJ).

12. First, that test had not been applied by the primary judge. That was no doubt because, as counsel eventually conceded, ^[4] it was not raised in submissions to the primary judge. That was a particular difficulty for the applicant in circumstances where the only ground of the proposed appeal was a challenge to the adequacy of the reasons given by the primary judge for refusing a stay. It would not usually be appropriate for this Court to intervene to overturn a decision on an interlocutory application, based on the inadequacy of reasons, when the inadequacy related to a matter which the judge had not been invited to address.

    4. CCA Tcpt, 16/11/22, p 10(35)-(50).

13. Secondly, the applicant’s case for a stay turned on evidence given by him that he had been given certain assurances by police officers which rendered it unfair to prosecute him for conduct which he believed was authorised. This was a matter on which he bore the burden of proof in seeking to establish unfairness: he could not assume in his favour that his evidence would be accepted at the special hearing, and therefore the prosecution was foredoomed to fail. ^[5]

    5. Compare Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156 (Glass JA).

14. It is commonly said that a decision with respect to a permanent stay can only be challenged on House v The King grounds. ^[6] That is correct, not because, like the imposition of a sentence, the decision required a choice within a range, but because the decision, albeit a binary decision to grant or refuse relief, involved an evaluative judgment as to which there was no necessarily correct or incorrect decision. However, as the respondent noted, the ground of appeal did not, in terms, seek to rely upon any of the matters identified in House v The King, but rather contended that the reasons given by the judge were inadequate.

    6. (1936) 55 CLR 499 at 505; [1936] HCA 40.

15. Counsel for the respondent further submitted that a ground of inadequacy of reasons will not be upheld where the appellate court is in a position to decide for itself whether the decision of the primary judge was correct. The cases cited^[7] were appeals against conviction. However, the immediate point is not that this Court could decide for itself, but whether it should do so. Unless error is demonstrated in the decision of the primary judge, the Court should not undertake that task.

    7. Madubuko v The Queen [2011] NSWCCA 135; 210 A Crim R 249; Evans v The Queen [2006] NSWCCA 277; 164 A Crim R 489.

16. The formulation adopted from the judgment in House v The King does not purport to explain the nature of the generic errors. That none refers to inadequacy of reasons is unsurprising: House was decided at a time when the judicial obligation to give reasons was far less demanding than it now is, and the subject of few decisions. (The history set out by Jordan CJ in Ex parte Reid; Re Lynch ^[8] reveals a concern with the failure of justices and magistrates to take a note of the oral evidence: “[t]he note must include not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision”. ^[9] ) Further, as is often the case in practical terms, a failure to give reasons, or what might be regarded as “sufficient” reasons, is an evidential step on the way to establishing a failure to address a mandatory consideration or determine the issues presented by the parties. ^[10]

    8. (1943) SR (NSW) 207 at 211-213.

    9. Ex parte Reid at 211 (text to fn 13).

    10. See, for example, NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [65]-[77] (Bell P, Ward JA agreeing with further observations at [110]-[114]).

17. Further, the standard of “adequacy” or “sufficiency” of reasons is neither fixed nor precise. It must depend on the purpose for which the reasons are required, the nature of the matter in dispute and contextual considerations. An evaluative decision which turns upon a synthesis of conflicting considerations will often not readily be reduceable to a transparent or logical path of reasoning. What the reasons must show, at least for the purposes of a decision which may be subject to appeal under s 5F of the Criminal Appeal Act, is that the judge considered the material presented by way of evidence and submissions, identified the legal test to be applied and recorded the determination made. If particular matters were treated as dispositive, or were put aside, the reasons may need to explain that, if it could not reasonably have been anticipated. However, the reasons must be the actual reasons for decision: if some matter of apparent significance is not identified in the reasons, the proper inference may be that that matter was not taken into account, rather than that the reasons are insufficient.

18. It is not necessary in this case to address the evidence, nor to set out in detail the reasons of the primary judge. Rather, the exercise to be undertaken is confined by the ground of appeal which should be set out in full:

“In concluding that his Honour was ‘not satisfied to any degree’ that the circumstances were ‘such as to justify application of the exceptional remedy’ of a stay of the proceedings, the learned trial judge erred by failing to give reasons, inter alia:

(a)   by failing to conclude whether the applicant had been told by police that he was authorised to possess firearms;

(b)   by failing to find whether police had engendered in the applicant a belief that his possession of firearms was not criminal by virtue of the [first] controlled operation;

(c)   by failing to refer to the evidence upon which his Honour concluded that it is not a matter of doubt that the second operation had concluded by [a specified date]; and

(d)   by failing to set out those matters his Honour had taken into account in determining that a stay of proceedings was not justified.”

19. As to particulars (a) and (b), neither is properly a failure with respect to the adequacy of the reasons; each complains of a failure to make a finding of fact. Further, each was a finding which would need to be made if the case run by the accused in the course of the special hearing raised the same issues as were raised on the interlocutory application. (Even if the accused did not give evidence, he had foreshadowed the nature of his defence which would be put to police in cross-examination.) It may be accepted that the judge did not make the findings to which the grounds referred; however, it would have been inappropriate for him to do so on an interlocutory application.

20. Particular (c) raises a failure to refer to evidence in relation to a finding it is asserted the judge did make. However, I do not understand the key passage in the reasons as making the finding. The judge stated: ^[11]

“There is some administrative vagueness as to the precise point at which the second operation concluded. That, however, is certainly not a matter of doubt when it comes to [a particular date]. I understand that the defendant’s position in relation to that event is; not that it was covered by the controlled operation, but that it was within otherwise the spirit of encouragement extended to him by [police with whom he was working] that he should do all he could to bring about the removal of firearms from the community.”

11. Judgment, 30/06/22, p 13.1.

21. I do not read that passage as making a finding as to when the second controlled operation concluded, but rather saying that at the critical date (which was the date of his arrest) the defendant was relying upon a different form of authority. The “administrative vagueness” therefore did not need to be determined. That understanding both explains the lack of reference to evidence in support of the supposed finding, and is supported by the lack of reference to evidence. Particular (c) was therefore based on a false assumption.

22. Particular (d) constituted a global complaint that, in effect, there were no matters identified in the reasons as justifying refusal of the stay.

23. This final particular suffers from the same defect as the factual defect in the “foredoomed to fail” submission. However, it is understandable why the applicant reformulated his complaint in terms of a prosecution which was foredoomed to fail. But by doing so, he highlighted the fact that the application for a stay turned upon acceptance of his own assertions that he believed he had authority from police officers to obtain possession of the firearms which it was accepted were in his possession when he was arrested. His case was that it would be oppressive and unjust to pursue a prosecution against him, on the assumption that the court was satisfied that he had such a belief. It was that case which the judge rejected entirely.

24. The critical passage in the judge’s reasons commenced by identifying what was not in issue:

“In essence, the defendant’s application does not suggest that the defendant, who I note was able to give cogent evidence, is incapacitated in any forensic sense of being able [sic, unable?], to the extent of his representation, to meet the charges. Rather, it is submitted that in all circumstances that he should not have to do so in the public interest, given the circumstances in which he found himself as he would assert; being with an element of misadventure, rather than with malign intent.”

25. Having disposed of the need to consider whether the applicant would be able to defend himself, the judge then noted that the Director had a far more flexible policy to determining what cases to prosecute than the Court had. The Director might decide not to prosecute a case in the public interest even though there were reasonable prospects of success. The judge observed that that was a “far more flexible guideline than the principles which I am obliged to apply to the application”. Those principles included “the fundamental requirement that it can only be in an exceptional case that the trial process is to be truncated by way of ordering a permanent stay”. The judge then continued to his final conclusion: ^[12]

“It bears repeating, that I have not in this judgment embarked upon [an] exercise [of] determining the likely outcome, in the event that the Special Hearing were to proceed. My task is to determine whether the defendant has satisfied a stringent test, such as will activate an exceptional measure in the remedy of permanent stay. I would do so, if I came to the view that in all of the circumstances to do otherwise would be an abuse of process such as would bring the administration of justice into disrepute if the defendant, who I accept is aggrieved by the circumstances that bring him before the Court, was to be further prosecuted. I have come to the conclusion that many of those matters of which the defendant complains may retain another status, depending upon the way any Special Hearing is resolved. I am not satisfied to any degree however, that this is an instance where the circumstances are such as to justify application of the exceptional remedy sought.”

12. Judgment, pp 13-14.

26. The evidence and the applicant’s submissions were not disregarded. The bulk of the judgment, after setting the procedural scene and noting the terms of the indictment and the principles governing an application for a permanent stay, involved a summary of the evidence led on the application. The judge set out the submissions made by the parties, noting that: ^[13]

“Evidence given by police in these proceedings, however, confirms unsurprisingly that whatever the defendant’s expectations, he had no entitlement to engage independently in exercises outside the parameters; either of authority for a controlled operation, or in relation to information that he might obtain by way of his understanding with [a police officer]. Certainly, he was not in a position to bargain for a reward with the expectation that it would be accepted. Those matters bear upon application of the principles in Edwards. ^[14] ”

13. Judgment, p 11.3.

14. The Queen v Edwards [2009] HCA 20; (2009) 83 ALJR 717.

27. Having revisited the legal principles, the judge continued: ^[15]

“Disposition of the present application turns upon whether I reach a conclusion that the prosecution is indeed an abuse of process. I have heard a good deal of evidence that in the ordinary course would be led in the course of a trial process, whether by way of Special Hearing or otherwise. That I have done so should not in my view require a pre-emptive conclusion as to whether the defendant would upon the limited evidence available be proven to have committed those acts as would be established beyond reasonable doubt to make out any of the counts.”

15. Judgment, p 12.2.

28. The only clear finding of fact was an express satisfaction that the senior police officer involved “gave the defendant a clear understanding of the parameters of the arrangement that he was entering into, in the specific terms of a controlled operation”. He then noted, in the passage quoted at [20] above, that there was less clarity with respect to a second operation, but that that was not ultimately relied upon by the defence.

29. In my view the process by which the judge declined to be satisfied that the case warranted a permanent stay is fully explained in the judge’s reasons. As the judge clearly appreciated, he was not being called upon to determine whether the applicant’s bona fide belief (if such it were), would constitute a defence to the charges; rather, he was asked to determine whether such a belief, if accepted, would warrant a permanent stay on the basis that it was a misuse of the criminal process to put the applicant on trial for the offences in the indictment. The judge’s reasoning revealed no error of law; it was adequate to explain the matters he had taken into account (being those matters upon which the parties had relied) and why he was not satisfied that an affirmative case had been established justifying an exceptional remedy. On that basis the application should be refused.

30. To the extent that it was open to the applicant to assert that the criminal process was foredoomed to fail, one can only say that that submission was foredoomed to fail. Either the applicant had authority to do what he did, or he did not. The proper forum for determining that question was the criminal trial, or in the applicant’s case, a trial by way of special hearing. The attempt to have that question determined on a stay application was misconceived.

31. For these reasons, the application for leave to appeal should be refused. The Court should make the following orders:

1. Grant the applicant leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) from the refusal of his application for a permanent stay.

2. Dismiss the appeal.

3. Direct that –

1. this judgment not be published other than to the parties for 14 days; and

2. if either or both parties propose that there be no further publication of this judgment, or part thereof, each has leave to file and serve submissions in support of that proposal within 14 days.

32. HARRISON J: I agree with Basten AJA.

33. FAGAN J: I agree with Basten AJA.

Endnotes

Decision last updated: 14 March 2023