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(a)   this judgment not be published other than to the parties for 14 days; and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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BTU v The King

Details

AGLC: BTU v The King [2023] NSWCCA 36
Case: [2023] NSWCCA 36
Decision Date: 01 March 2023

CaseChat Overview and Summary

The applicant, BTU, sought an interlocutory appeal against the refusal of a stay of a special hearing before the Court. The applicant sought the stay on the grounds that the prosecution was doomed to fail and constituted an abuse of process, and that there had been a failure to give reasons for the hearing. The applicant also sought the suppression of the identity of a participant in a controlled operation, as well as non-publication orders in relation to evidence given at the hearing. The respondent, the King, opposed the application.
The court was required to decide whether the prosecution was doomed to fail and constituted an abuse of process, and whether there had been a failure to give reasons for the hearing. The court was also required to decide whether the suppression of the identity of the participant in the controlled operation was necessary, and whether non-publication orders should be made in relation to the evidence given at the hearing.

The court found that the prosecution was not doomed to fail and did not constitute an abuse of process. The court found that there had been no failure to give reasons for the hearing. The court found that the suppression of the identity of the participant in the controlled operation was necessary, and that non-publication orders should be made in relation to the evidence given at the hearing. The application was dismissed.

The court made orders suppressing the identity of the participant in the controlled operation, and orders that certain evidence given at the hearing not be published.

Orders