Burton v The King

Case •

[2024] NSWCCA 213

•

22 November 2024

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Burton v R [2024] NSWCCA 213
Hearing dates: 23 October 2024
Date of orders: 23 October 2024
Decision date: 22 November 2024
Before: Kirk JA at [1];
Rothman J at [2];
Yehia J at [5]
Decision: (1) Leave to appeal is refused.
Catchwords:

CRIME – Appeals – interlocutory appeal – decision to refuse a permanent stay – whether the primary judge made interlocutory orders about the availability of defences – difference between indicative rulings and interlocutory orders – criteria for leave to appeal from interlocutory decision in criminal proceedings – whether there was an error of principle and possibility a likelihood of substantial injustice – leave to appeal refused

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 43, 105, 105(2)

Court Suppression and Non-publication Orders Act 2010 (NSW), s 7(1)(a)

Crimes Act 1900 (NSW), s 192E

Criminal Appeal Act 1912 (NSW), ss 5F, 5F(3), 5F(3)(a)

Criminal Procedure Act 1986 (NSW), s 130A; Sch 1, Table 1, s 18

Evidence Act 1995 (NSW), s 97

Supreme Court Act 1970 (NSW)

Cases Cited:

ABT v Bond (1990) 170 CLR 321

AF v R [2015] NSWCCA 35

Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48

BM v R [2017] NSWCCA 253

Boulos v R [2008] NSWCCA 119

Burton v Babb [2020] NSWCA 331

Burton v Babb [2023] NSWCA 242

Burton v Babb [2023] NSWDC 103

Burton v Director of Public Prosecutions (2022) 110 NSWLR 145; [2022] NSWCA 242

Burton v Director of Public Prosecutions (NSW) (2021) 361 FLR 432; [2021] NSWSC 1230

Burton v Local Court of New South Wales [2019] NSWSC 191

Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734;[2019] NSWCA 245

Burton v Secretary, Department of Communities & Justice (formerly Family and Community Services) [2022] NSWCA 7

Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68

Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21

Burton v The Director of Public Prosecutions [2024] NSWSC 863

Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120

DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63

Gas and Fuel Corporation v Saunders (1994) 52 FCR 48

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32

Hammoud v R [2020] NSWCCA 339

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

Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46

JD v R [2013] NSWCCA 198

KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249

Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24

La Rocca v R [2023] NSWCCA 45

Maxwell v Keun [1928] KB 645

Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50

O'Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19

Onslow v Inland Revenue Commissioners (1890) 25 QBD 465

Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108

R v Chami; R v Sheikh [2002] NSWCCA 136

R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215

R v Fleming [2007] NSWSC 337

R v Ludeke, ex parte COA (1985) 155 CLR 513

R v Matovski (1989) 15 NSWLR 720

R v Matthews [2018] NSWCCA 7

R v Smith [No 1] [2011] NSWSC 725

R v Van Phu Ho (Court of Criminal Appeal (NSW), 18 July 1994, unrep)

R v VPN (Court of Criminal Appeal (NSW), 4 March 1994, unrep)

Rosamond v R [2022] NSWCCA 251

Sayer-Jones v R [2024] NSWCCA 73

Secretary, Department of Communities and Justice v Paul Robert Burton [2021] NSWSC 1285

The Will of Gilbert (1946) 46 SR (NSW) 318

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

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Webb v R (2012) 225 A Crim R 550; [2012] NSWCCA 216

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 March 1987

Category:Principal judgment
Parties: Paul Burton (Applicant)
Rex (Respondent)
Representation:

Counsel:
P Burton (Self-represented)
G Newton SC with B Queenan (Respondent)

Solicitors:
P Burton (Self-represented)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2017/00387583
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
17 October 2024
Before:
Harris DCJ
File Number(s):
2017/00387583

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Paul Burton, sought leave to appeal the decision of Harris DCJ (“the primary judge”) to refuse a permanent stay of criminal proceedings against him, pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW).

The applicant was charged with, and pleaded not guilty to, four charges of publish or broadcast the name of a child with respect to whom proceedings had been brought before the Children’s Court of New South Wales, contrary to s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

The trial commenced before the primary judge by way of pre-trial applications on 14 October 2024. During the course of those pre-trial arguments, it became apparent that two Crown witnesses, were unavailable to give evidence in the trial due to ill health. The applicant indicated that he required both witnesses for cross-examination in order that he properly put his defences to the jury and asserted that the unavailability of these witnesses gave rise to irreparable prejudice to his case.

Mr Burton made an application for an order to permanently stay proceedings, and in the alternative, for a temporary stay of proceedings. His grounds for seeking a permanent stay went beyond the ill health of the two witnesses. The primary judge refused both applications. Mr Burton made an application for leave to appeal against the decision of the primary judge to refuse the permanent stay of proceedings only.

The grounds upon which he appealed were not limited to the primary judge’s order refusing the application for a permanent stay. They extended to an application for leave to appeal against the primary judge’s asserted rulings with respect to the availability of potential defences. The applicant sought leave to appeal against the decision of Harris DCJ on the following three grounds:

  1. Her Honour Harris DCJ erred by failing to grant a permanent stay.

  2. Her Honour Harris DCJ erred by ruling that she could limit what the applicant honestly and reasonably believed.

  3. Her Honour Harris DCJ erred by stating that she would make a decision at the end of the prosecution case in regards to self-defence without even the jury hearing the defence case.

The Court held per Yehia J (Kirk JA and Rothman J agreeing) refusing leave to appeal:

As to ground 1, per Yehia J at [56], [68]-[72], [73] (Kirk JA at [1] and Rothman J at [2] agreeing) rejecting ground 1:

  1. The death or unavailability of witnesses may present obstacles to a fair trial, but they do not necessarily cause proceedings to be permanently stayed. There may be other ways in which the prejudice can be cured, for instance, by excluding evidence or by way of judicial direction. Each case must be determined on its own facts.

R v VPN (Court of Criminal Appeal (NSW), 4 March 1994, unrep); R v Fleming [2007] NSWSC 337; Boulos v R [2008] NSWCCA 119; R v Smith [No 1] [2011] NSWSC 725; Webb v R (2012) 225 A Crim R 550; [2012] NSWCCA 216; JD v R [2013] NSWCCA 198

  1. The Court concluded there was no abuse of process arising out of any of the eight bases asserted by the applicant.

  2. There is no issue or error of principle that carries with it the possibility or likelihood of substantial injustice that arises from Ground 1. On that basis leave to appeal is refused.

DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63; Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24; O’Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19; Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108; Rosamond v R [2022] NSWCCA 251; R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215; Hammoud v R [2020] NSWCCA 339; La Rocca v R [2023] NSWCCA 45

As to Grounds 2 and 3 per Yehia J at [53] (Kirk JA at [1] and Rothman J at [4] agreeing) rejecting Grounds 2 and 3:

  1. The primary judge did not make “interlocutory orders” in respect of the defence of honest and reasonable mistake of fact or as to the availability of self-defence. Harris DCJ’s remarks in respect of defences available to the applicant were preliminary indications, and not commands that something be done (or not be done) which could be enforced by the Court should there be non-compliance.

R v Matthews [2018] NSWCCA 7; KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249; AF v R [2015] NSWCCA 35

  1. The Court of Criminal Appeal’s jurisdiction is not enlivened in respect of Grounds 2 and 3 because “interlocutory orders” were not made under
    s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), and it is on that basis that leave to appeal is refused.

As to Grounds 2 and 3 per Rothman J at [3] agreeing, rejecting Grounds 2 and 3:

  1. There is authority for the proposition that an interlocutory order is any order that does not deal finally with the rights between the parties. An order or judgment is any practically operative or determinative adjudication of an issue in the proceedings. The ruling or order in the present matter is expressly temporary and does not disentitle a party from re-agitating the relevant issue, and leave should almost invariably be refused.

Gas and Fuel Corporation v Saunders (1994) 52 FCR 48; ABT v Bond (1990) 170 CLR 321; Onslow v Inland Revenue Commissioners (1890) 25 QBD 465; Maxwell v Keun [1928] KB 645; R v Ludeke, ex parte COA (1985) 155 CLR 513

JUDGMENT

  1. KIRK JA: The reasons for judgment of Yehia J capture my own reasons for concluding, at the end of the hearing of this matter, that leave to appeal should be refused.

  2. ROTHMAN J: I agree generally with the reasons for judgment of Yehia J. I agree with the orders her Honour proposes.

  3. I have some doubt on the accuracy of the authorities on the meaning of “interlocutory judgment or order”. There is authority for the proposition that an interlocutory order is any order that does not deal finally with the rights between the parties: see, amongst others, Gas and Fuel Corporation v Saunders (“Saunders”) (1994) 52 FCR 48. Further, an order or judgment is any practically operative or determinative adjudication of an issue in the proceedings: ABT v Bond (1990) 170 CLR 321; Onslow v Inland Revenue Commissioners (1890) 25 QBD 465; Maxwell v Keun [1928] KB 645; R v Ludeke, ex parte COA (1985) 155 CLR 513 at 526; Saunders, supra. A ruling on the admissibility of evidence, however, is not, in the context of s 5F an interlocutory order, otherwise s 5F(3A) would be otiose.

  4. Nevertheless, where, as here, the ruling or order is expressly temporary and does not disentitle a party from re-agitating the issue, leave should, almost invariably, be refused. As stated, I agree with the orders proposed by Yehia J and, other than to the extent inconsistent with the previous paragraph hereof, with her Honour’s reasons.

  5. YEHIA J: On 23 October 2023, this Court heard an urgent application for leave to appeal brought by Mr Paul Burton (“the applicant”), under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), against an order made by Harris DCJ (“the primary judge”) declining to permanently stay criminal proceedings against him. The applicant appeared unrepresented before the primary judge and before this Court.

  6. The grounds of appeal are not, however, limited to the primary judge’s order refusing the application for a permanent stay. They extend to an application for leave to appeal against the primary judge’s asserted rulings with respect to the availability of potential defences.

  7. At the conclusion of the hearing, the Court refused the applicant leave to appeal. What follows comprises my reasons for joining in that order.

Background

  1. The applicant is facing trial on an indictment alleging four offences of publish or broadcast the name of a child (referred to as “CWS”) with respect to whom proceedings had been brought before the Children’s Court of New South Wales, contrary to s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“CYPCP Act”). By way of indictment dated 14 October 2024, the applicant was charged with the following offences (which in each case were alleged to have occurred at Newcastle, in the State of New South Wales):

  1. Count 1: On 4 July 2017, did publish the name of a child, CWS, with respect to whom proceedings have been brought before the Children’s Court of New South Wales.

  2. Count 2: On 6 July 2017, did broadcast the name of a child, CWS, with respect to whom proceedings have been brought before the Children’s Court of New South Wales.

  3. Count 3: On 11 July 2017, did publish the name of a child, CWS, with respect to whom proceedings have been brought before the Children’s Court of New South Wales.

  4. Count 4: On 11 July 2017, did broadcast the name of a child, with respect to whom proceedings have been brought before the Children’s Court of New South Wales.

  1. The applicant is being tried jointly with a co-accused, Andrew John Katelaris who is facing a single charge contrary to s 105(2) of the CYPCP Act. Mr Katelaris is not joined in this appeal.

  2. The trial commenced before the primary judge on 14 October 2024 by way of pre-trial applications. At the time of hearing this appeal, a jury had not yet been empanelled. On 14 and 15 October 2024, various issues concerning the admissibility of evidence and the availability of potential defences, were ventilated before the primary judge. During the course of those pre-trial arguments, it became apparent that two Crown witnesses, namely Detective Senior Sergeant Catherine Turner and former Department of Family and Community Services (“FACS”) employee, Amanda Hills, were unavailable to give evidence in the trial due to ill health. The applicant indicated that he required both witnesses to be made available for cross-examination in order that he properly put his defences to the jury. The applicant asserted that the unavailability of these witnesses gave rise to irreparable prejudice to his case (“the witness unavailability ground”).

  3. On 16 October 2024, the applicant made an application for an order to permanently stay proceedings. The applicant also made an application, in the alternative, for a temporary stay of proceedings. The primary judge received written and oral submissions in respect of both applications. On 17 October 2024, the primary judge refused both applications and gave reasons for doing so (“the primary judgment”). The applicant seeks leave to appeal the order refusing a permanent stay of proceedings only.

The Primary Judgment

  1. The primary judge set out the background to the application. The applicant had previously made an application for a permanent stay before Ellis DCJ on 19 August 2024. That application was refused on 12 September 2024. As the applicant had previously made an application for a permanent stay, s 130A of the Criminal Procedure Act 1986 (NSW) was engaged. The Crown prosecutor in the Court below accepted, and the primary judge found, that it was not in the interests of justice for the earlier order to be binding.

  2. Her Honour briefly set out the principles relevant to a stay application referring to the following cases: Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77; Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34; Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50.

  3. The primary judgment included a summary of the Crown Case:

“In short summary, Mr Burton is a non-denominational priest with a local self-styled church of well-being known as Ubuntu; Dr Katelaris is associated with that church. In early 2017, Mr Burton was made aware by the family of a four year old child CWS, that the Department of Family and Community Services (FACS) had an interest in his welfare.

On 19 May 2017, CWS was placed in the care of the State by virtue of an order pursuant to s 43(1) of the [Children and Young Persons (Care and Protection) Act 1998 (NSW)], an order for removal of a child at immediate risk of harm. The order stated that the removal of the child was due to medical neglect based on blood test results indicating critically low levels of potassium, and that those results were consistent with the child suffering from malnutrition.

The removal of the child from his family was in circumstances involving high tension. And indeed, Mr Burton was at the receiving end of police-deployed capsicum spray at that time. It was subsequently conceded by Department of Family and Community Services, confirmed in Exhibit 4, the letter of Deputy Secretary Simone Walker to the child’s mother, that the reference to low potassium levels on the removal order was ‘an error and should have been deleted’. The child remained in State care.

It is the case, for Mr Burton at least, that he was unable to ascertain the whereabouts of the child, and that he and others believed that the child had been illegally taken from his family, in effect, kidnapped.

The subsequent publishing and broadcasting of the child’s name on social media (the allegations the subject of the indictment), are said by the accused to be directed to placing pressure on the authorities to return the child to his parents and to garner public support in pursuit of that aim. In this respect, the accused intend to rely on defences to the charges, including self-defence or defence of another, duress, necessity, as well as the defence of honest and reasonable mistake of fact.”

  1. The primary judge then turned to a consideration of the applicant’s primary submission that the unavailability of the Crown witnesses, Detective Senior Sergeant Turner and Ms Hills, gave rise to irreparable prejudice. As to the unavailability of Ms Hills, the primary judge concluded:

“The statement of Amanda Hills is to the effect that she was employed at FACS and held the delegation on behalf of the Department’s Secretary to sign removal papers when a child was to be removed without a warrant under s 43. Ms Hills states that on 19 May 2017, she was managing the triage team at Charlestown community service centre, when it was determined that the child was at immediate risk of serious harm. She prepared and signed the order of his removal. The order is attached to her statement. She had no further involvement in the matter.

It is Mr Burton’s position that in signing the order, Ms Hills was required at law to be present at the physical removal of the child when she was not. This is, according to Mr Burton, further reason for his belief that the child had been removed from the parents unlawfully. This morning Mr Burton conceded that he was unaware that Ms Hills was not present when the child was removed until after 13 July 2017, postdating the counts on the indictment.

Mr Burton submits that Ms Hills, when signing her statement, by that time, was aware that the Department’s reliance on low potassium levels was unfounded and indeed wrong. He submits that by attaching the original order and failing to disclose the error speaks of her dishonesty and or reliability as a witness. The accused seek to cross-examine Ms Hills about this, as well as the legality of the removal of the child under the order.

Given the limitations of Ms Hills’ statement, namely the production of an order previously signed in order to remove the child reliant on information that subsequently proved to be incorrect, I do not agree with the defence submission that there is a basis to suggest Ms Hills was acting corruptly and attesting to information she knew at the time to be false.

There is a myriad of circumstances upon which the defence claim they believed the child had been removed illegally and which compelled them to act in his defence, including what is recorded contemporaneously by them, recordings that will be played in the trial. That Ms Hills had not been physically present at the child’s removal and whether or not this was an abrogation of her duty such that the child’s removal was unlawful, does not contribute in any meaningful way to the accused’s state of mind between 4 and 11 July 2017 and the defences sought to be relied upon by the accused.”

  1. As to the unavailability of Detective Senior Sergeant Turner, the primary judge noted that the applicant “identified as exceptional prejudice that he would be unable to cross-examine her about her perceived improper involvement in the preparation of the statement of another prosecution witness Ms Blair Collier.” Her Honour then continued:

“The Crown intend to call Ms Collier as a witness. Indeed, Ms Collier is one of only two witnesses to be called by the Crown. She will give evidence in person. Ms Collier is an important prosecution witness, producing and giving evidence of the alleged offending social media posts that are the subject of the charges.

In the absence of Ms Turner, the defence have available to them Exhibit 3, the email chain between Ms Turner and Ms Collier between 13 and 28 November 2017. Ms Collier’s statement is signed on 27 November 2017. The email exchanges demonstrate Ms Turner’s efforts to compile Ms Collier’s statement (Exhibit J); eliciting affidavit material from Ms Collier, informing Ms Collier that she would adjust her affidavit in accordance with the requirements of the DPP and requesting an electronic version of the affidavit for ‘cut and paste’ purposes and to ‘remove the bits not required’. In an email dated 14 November 2017, Detective Turner offered to send to Ms Collier ‘examples of the other statements already supplied in this matter to assist you in preparing the statement quickly.’

It must be said that the conduct and approach of Ms Turner in obtaining a witness statement, as can be gleaned from the emails, is a somewhat unusual if not concerning approach. Particularly in respect of that last aspect where she offered to send examples of other witness statements to assist Ms Collier in the preparation of her own.

Acknowledging those shortcomings in the process of police obtaining a statement from Ms Collier in that way, yesterday I pressed Mr Burton to articulate the prejudice to his defence in the event he is unable to cross-examine Catherine Turner about this process. The prejudice as I understand it is that Mr Burton is unable to, for example, compare evidence that Ms Turner might give against the evidence of Ms Collier, which may raise inconsistencies as to how the final statement was produced. This morning Mr Burton submitted that as it is unknown what, if any, conversations took place between them, this ought to be a matter that the accused are able to explore.

That there may have been conversations between the two witnesses going to Ms Collier’s credibility, is in my view highly speculative. The fact that Mr Burton and/or Dr Katelaris would be unable to cross-examine Ms Turner about this, is not productive of the sort of prejudice that would lead to an unfair trial. It is important to note that Mr Burton and Dr Katelaris have in their armoury, for the purposes of cross-examination of Ms Collier, the email exchange which plainly demonstrates the involvement of Detective Turner in the preparation of Ms Collier’s statement.

This morning, Mr Burton submitted that as Ms Collier in her statement, refers to reliance on FACS department records, the defence ought to be able to cross-examine Ms Turner on what appears to be her acceptance of Ms Collier’s reliance on those records. This is in my view, a matter for cross-examination of Ms Collier, as to what records she relied upon in the making of her statement.

Mr Burton has also acknowledged that the omission of what he says is exculpatory evidence from Ms Collier’s police statement, is contained within Ms Collier’s affidavits sworn in earlier proceedings (Exhibits 5, 7 and 8). Mr Burton is in possession of that exculpatory material to put before the jury during cross-examination of Ms Collier in the trial.

While I can appreciate cross-examination of Catherine Turner about her involvement in the preparation of Ms Collier’s statement may raise, in favour of the accused, an inference of prosecution or at least police bias against them, it does not go so far as to relevantly undermine the credibility of Ms Collier, in circumstances where any other and exculpatory evidence that Ms Collier might give is available to the accused. There is nothing to suggest that Ms Collier did not truthfully and accurately adopt the statement she signed on 27 November 2017. As the Crown Prosecutor has pointed out in terms of Catherine Turner’s apparent interest in the form of Ms Collier’s statement, affidavits commonly contain statements of opinion that would not be admissible in a criminal trial.”

  1. In addition to the witness unavailability ground, the applicant relied upon eight discrete arguments in support of the application for a permanent stay. The primary judge dealt with each of those arguments in the following way.

  2. In respect of the first argument, “that in refusing the application for a permanent stay, the community may take the view that the Court is facilitating a prosecution that is collaborating with witnesses who are avoiding court because of irregularities in their evidence”, the primary judge concluded that a wrongly held perception cannot add weight to the application for a permanent stay.

  3. In relation to arguments two to five – which inter alia asserted delay, the fact that others who had breached s 105 of the CYPCP Act had not been charged, that the likely penalty following a finding of guilt would not involve a conviction, and that purported evidence in the prosecution case supported the applicant’s belief that the child was removed illegally – the primary judge gave “considerable weight” to those matters. Her Honour concluded, however, that it is not for the Courts to limit or undermine what the Director of Public Prosecutions (“the Director”) determines appropriate to prosecute. The primary judge also noted that “it will only be in exceptional circumstances that a Court will order a stay of proceedings” and “that the interests of the accused and the public’s interest in the due administration of justice must be weighed in the balance.”

  4. Argument six asserted that any publishing or broadcasting of the child’s name ceased after at least 13 July 2017, at a time the applicant accepted “judicial oversight”. In that regard, the primary judge concluded that “is not a matter weighing in favour of the accused for a permanent stay” and “any defence of waiting for “judicial oversight”, that is an order or direction of the Supreme Court, is not a defence to the charges [the applicant] faces.”

  5. In respect of the seventh argument, that the charges were laid on the applicant by police assigned to the Child Abuse and Sex Crimes Squad, the primary judge considered this had to be a “red herring” which had no bearing “on the charges or evidence to be called in the trial, or the guilt or innocence of [the applicant].”

  6. The eighth and last argument related to the chronology of events resulting in the unavailability of Ms Hills, giving rise to concerns about the veracity of Ms Hills’ claim of unavailability. The primary judge noted that while the chronology of events resulting in the unavailability of Ms Hills “[gave] rise to suspicions” on the part of the applicant that she was simply avoiding cross-examination, there was evidence before the Court of Ms Hills’ treating doctor that she was so unwell, so as to be unavailable for a period of eight weeks.

  7. The primary judge ultimately concluded:

“I am not satisfied that the matters relied upon by the accused singularly or in combination would, in the absence of a stay and continuation of proceedings, undermine the administration of justice. I am satisfied, having regard to the availability of jury directions as to the absence of witnesses in circumstances where I do not view the absence of either Ms Turner or Ms Hills to be fundamentally prejudicial to the defence case, that the accused will receive a fair trial.

Having regard to my valuation of the particular circumstances of this case, and balancing fairness to the accused against public interest considerations, I am not satisfied I should exercise my discretion to permanently stay trial proceedings in the application is refused.”

Grounds of Appeal

  1. By way of submissions dated 20 October 2024, the applicant sought leave to appeal from the primary judgment on the following grounds:

“1. Her Honour Harris DCJ erred by failing to grant a permanent stay.

2. Her Honour Harris DCJ erred by ruling that she could limit what I honestly and reasonably believed.

3. Her Honour Harris DCJ erred by stating that she would make a decision at the end of the prosecution case in regards to self-defence without even the jury hearing the defence case.”

Standard of Appellate Review

  1. In Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24 (“Koschier”), Bell CJ (Harrison CJ at CL and Chen J agreeing) noted that there is a line of authority which describes the Court’s power to permanently stay criminal proceedings as “discretionary” with the applicable standard of appellate review being that stated in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ; (1936) HCA 40 (“House v The King”). However, Bell CJ held that there is no reason in principle why the “correctness standard” of appellate review, that was endorsed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32 (“GLJ”), cannot also apply to criminal proceedings: Koschier at [33] per Bell CJ (Harrison CJ at CL and Chen J agreeing). In GLJ at [26] the majority, comprising Kiefel CJ, Gageler and Jagot JJ (Steward and Gleeson JJ relevantly agreeing) said:

“… If… a judge must stay proceedings that are an abuse of process and must not stay proceedings that are not an abuse of process, it necessarily follows that the decision is not a discretionary one for the purpose of ascertaining the applicable standard of appellate review. Nor does the application of the standard applicable to discretionary decisions – ‘whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration’ – reflect either the purpose of the power (to protect the integrity of the adversarial system) or the extreme consequences of an exercise of the power (a court declining to exercise its jurisdiction). That the classes of possible abuse of process are not closed because ‘notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case’ may be accepted, but does not dictate that a decision to grant a permanent stay is discretionary in nature.” (Footnotes omitted.)

  1. Identification of the “correctness standard” as the applicable standard for review means that any appeal following a grant of leave proceeds by way of rehearing; as such an appellate court is required to decide the case for itself, with “limited deference” to the reasons of the trial judge: Koschier at [35]-[36] per Bell CJ (Harrison CJ at CL and Chen J agreeing) citing Warren v Coombes (1979) 142 CLR 531 at 552 (per Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9. Where the primary judge’s reasoning is “most significant”, in the case of an appeal from an interlocutory decision, is in the context of the threshold consideration of whether leave to appeal should be granted: Koschier at [43] per Bell CJ (Harrison CJ at CL and Chen J agreeing).

  2. In Koschier, the Chief Justice observed at [43], referring to Jordan CJ’s observations in The Will of Gilbert (1946) 46 SR (NSW) 318 at 323, that a “tight rein” ought to be kept upon interference with interlocutory orders of Judges of first instance. His Honour later observed, that “where interlocutory decisions are concerned, the ‘correctness standard’ of appellate review is not engaged unless, and until, leave to appeal has been granted”; and in that regard, the requirement of leave to appeal operates as an important filter: Koschier at [45] per Bell CJ (Harrison CJ at CL and Chen J agreeing).

The Question of Leave

  1. Various tests have been formulated for the grant of leave to appeal in the context of an interlocutory decision in criminal proceedings. In Koschier at [49] Bell CJ (Harrison CJ at CL and Chen J agreeing) held that the test to be applied in applications for leave to appeal pursuant to s 5F ought to be formulated in the ways set out in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 (“DAO”), O’Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19 (“O’Haire”), Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 (“Queanbeyan City Council”), and Rosamond v R [2022] NSWCCA 251 (“Rosamond”).

  2. The formulations referred to in Koschier at [49] namely, the need for a demonstration of error of principle (with a sufficient degree of clarity) and the possibility or likelihood of substantial injustice, were applied to the determination to refuse leave to appeal in Sayer-Jones v R [2024] NSWCCA 73 at [83] per N Adams J (Campbell J agreeing), which concerned an appeal of a decision to set aside two subpoenas in District Court criminal proceedings.

  3. In DAO, the applicant was charged with 18 sexual offences against six different complainants. Prior to the commencement of the trial, the applicant sought orders for a separate trial of the counts that related to each complainant. The Office of the Director of Public Prosecutions (“ODPP”) gave notice of its intention to adduce tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW) and proposed to rely on the evidence of each complainant, in respect of the counts pertaining to each other complainant. The trial judge ordered separate trials in respect of three of the complainants but declined to do so in respect of the remaining three, which were to proceed as a joint trial. The applicant sought leave to appeal against that decision pursuant to s 5F(3) of the Criminal Appeal Act. Ultimately, leave to appeal was granted, and the appeal dismissed. It was accepted on the hearing of the appeal that the trial judge’s decision, in substance, incorporated an evidentiary ruling that the evidence of three complainants was admissible as tendency evidence against the allegations of each other complainant. In DAO, the test for leave to appeal from an interlocutory decision in the context of criminal proceedings was considered by Allsop P at [74]-[76] in the following manner:

“[74] This Court has expressed itself on a number of occasions about the extent of, and the proper approach to, applications under s 5F. Section 5F is not available to review a decision as to the admissibility of evidence, such not being ‘an interlocutory judgment or order’: R v Powch (1988) 14 NSWLR 136; R v Edelsten (1989) 18 NSWLR 213; Steffan v R (1993) 30 NSWLR 633 at 636 and 639; R v Bozatsis (1997) 97 A Crim R 296 at 302 and 304; R v Glossop [2001] NSWCCA 165 at [15]-[19]; R v F [2002] NSWCCA 125; R v Lavender [2002] NSWCCA 511; 37 MVR 491 at [8]; Kocer v R [2006] NSWCCA 328 at [1], [10], [15] and [18]; EK v R [2009] NSWCCA 4; 75 NSWLR 302 at [11]-[12] and [19]; and Gedeon v R [2009] NSWCCA 278 at [15].

[75] It is undoubted that in applications under s 5F substance, and not mere form, should prevail: Cheikho v R [2008] NSWCCA 191; 75 NSWLR 323 at 329 [25]. This has been the foundation of the Court's approach, for instance, to applications for leave to appeal from orders in respect of stay applications that are founded significantly, or wholly, on contested rulings on evidence. The general (though not necessarily invariable) approach in such cases is to refuse leave to appeal: Steffan at 640-641; R v Marchione [2002] NSWCCA 131; 128 A Crim R 574 at 577 [18] (per Bell J, with whom Heydon JA and Dowd J agreed); and Gedeon at [24].

[76] … for that purpose, one can approach the relevant issue by requiring not only the demonstration of error of principle (with a sufficient degree of clarity) as well as the possibility or likelihood of substantial injustice. Leave can be refused even if an error of principle has been disclosed, because of the kinds of considerations referred to by Jordan CJ in In re the Will of Gilbert at 323 and by Gibbs CJ, Aickin J, Wilson J and Brennan J in Adam P Brown Male Fashions at 177.”

  1. Queanbeyan City Council related to an appeal from an interlocutory judgment of the Land and Environment Court. Queanbeyan City Council had been charged with an environmental offence of polluting waters and sought a permanent stay of the prosecution, which was refused for reasons including that there was a public interest in allowing the trial to continue. The applicant made an application for leave to appeal the primary judge’s refusal to stay the trial, under s 5F(3)(a). Leave to appeal was refused.

  2. In coming to that conclusion, Whealy JA (Hall and McCallum JJ (as her Honour then was) agreeing) set out the principles applicable to granting leave to appeal at [25]-[29]:

“[25] First, leave should not readily be granted unless an appropriate case is made out, showing an error of principle apt to cause irregularity or injustice (R v Van Phu Ho (Unreported, NSW Court of Criminal Appeal, 18th July 1994, Gleeson CJ, Mahoney JA, Dunford J)).

[26] Secondly, where the order involves the exercise of a discretion, as is the case here, the usual restraint and limitation placed upon an appellate court's intervention will apply (House v The King (1936) 55 CLR 499 at 504-504).

[27] Thirdly, it has been held that leave will only be granted where the decision which is the subject of the application is attended with sufficient doubt so as to warrant the matter being argued on appeal (R v Steffan (1993) 30 NSWLR 633 at 644-645) or where the interests of justice otherwise require the intervention of the court at this stage of the proceedings (R v Matovski (1989) 15 NSWLR 720 at 723. See also R v Dinh [2000] NSWCCA 536 at [34]; R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31).

[28] In the circumstances of the present application, there are two further principles that require consideration. The essence of the applicant's submission here is that the proceedings should be stayed on the basis of unfairness. In that regard, the applicant, who carries the onus, must demonstrate not merely a perception of unfairness, but actual unfairness that is incapable of correction (R v Ulman-Narumiec [2003] 143 A Crim R 531 at [24] and [70]-[72]).

[29] Secondly, it is necessary to keep in mind that a permanent stay of criminal proceedings represents an exceptional remedy. It is exercisable only in extreme and exceptional cases (Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ, at 76 per Gaudron J). In that regard, in Dupas v R (2010) 241 CLR 237, the High Court quoted with approval R v Glennon (1992) 173 CLR 592 at 605 - 606:

‘A permanent stay will only be ordered in an extreme case and there must be a fundamental defect "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences".’”

  1. In O’Haire the applicant informed the Land and Environment Court that he would enter a plea of guilty to eight environmental offences. Those pleas were formally noted and the matter was set down for a sentence hearing. Mr O’Haire filed a Notice of Motion seeking an order to correct the recording of guilty pleas pursuant to the “slip rule” on the basis that they had been mistakenly entered. The Notice of Motion was dismissed and the applicant filed an application for leave to appeal to the Court of Criminal Appeal pursuant to
    s 5F(3).

  2. On appeal, N Adams J noted that prior to the enactment of s 5F, the Supreme Court Act 1970 (NSW) allowed for interlocutory judgments and orders made in the District Court relating to criminal offences to be appealed to the Court of Appeal. That provision was repealed when s 5F was introduced. Her Honour referred to the second reading speech relating to the introduction of s 5F which referred to the rationale for the change (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 March 1987 at 16087):

“The proliferation of these interlocutory applications to the Court of Appeal has resulted in significant disruption to the criminal justice system and the tying up of already overburdened resources. There have been many instances of abuse of this procedure in that applications that clearly have no merit have been brought on the first day of a trial with the apparent intention of appealing to the Court of Appeal, thereby causing the trial to abort. …” (Emphasis added.)

  1. Her Honour considered the decision of R v Matovski (1989) 15 NSWLR 720 which related to an application for leave to appeal against a decision of a District Court judge’s refusal to stay a prosecution. In that decision, Gleeson CJ remarked at 723 (Lee CJ at CL and Grove J agreeing):

“…No doubt there may always be cases where the interests of justice would require the granting of leave to appeal even in the absence of some specific error of the kind to which reference has already been made. Accordingly, it is not appropriate to circumscribe the discretion which this Court has in deciding whether to grant or withhold leave to appeal….” 

  1. Her Honour also considered the decision in R v Van Phu Ho (Court of Criminal Appeal (NSW), 18 July 1994, unrep) (“Van Phu Ho”), cited with approval by Ipp AJA in R v Chami; R v Sheikh [2002] NSWCCA 136 (Sully and Bell JJ agreeing as to the relevant principles) at [13]:

"… Appellate courts will not readily interfere with what a judge does at an interlocutory stage. Leave to appeal will not readily be granted although, of course, if an appropriate case is made out, showing an error or principle apt to cause irregularity or injustice, then this court will grant leave: R v Van Phu Ho (NSWCCA, unreported, 18 July 1994)."

  1. In Rosamond, the accused was arraigned on 23 counts of dishonestly obtaining a financial benefit by deception contrary to s 192E of the Crimes Act. During the applicant’s trial, an application to discharge the jury and vacate the trial was made, on the basis that the Crown had unfairly expanded the scope of expert evidence adduced. The application was refused, and a subsequent application for a temporary stay was made on the basis that the applicant was “not in a position to meet” the expert’s evidence: Rosamond at [34]. The application for leave to appeal was refused.

  2. The Court observed that in determining whether or not to grant leave the Court ought to have “regard to the fact that one of the principal reasons for subjecting appeals from interlocutory orders in criminal cases to the requirement to obtain leave is to prevent, or minimise, the fragmentation of the process of criminal justice”: Rosamond at [8] per Garling J (Button and Wilson JJ agreeing), citing R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215 (“Einfeld”) at [23] per the Court.

  3. In addition to the cases identified by Bell CJ in Koschier, this Court has also considered the test for granting leave to appeal under s 5F in Hammoud v R [2020] NSWCCA 339 (“Hammoud”). In Hammoud, the applicant was charged with six sexual offences against two complainants. The trials were joint and the cross-admissibility of the complainants’ evidence was sought to be relied upon at trial. The applicant made an application for a separate trial in respect of the counts relating to each complainant, which was refused. The applicant subsequently sought leave to appeal that decision pursuant to
    s 5F(3)(a).

  4. In refusing leave to appeal, Hoeben CJ at CL (Bathurst CJ and Bellew J agreeing) referred to BM v R [2017] NSWCCA 253 at [9] in which Bathurst CJ (McCallum and Bellew JJ (as her Honour then was) agreeing) set out the principles relevant to a grant of leave to appeal in a case involving an application for separate trials. Relevantly, Hoeben CJ at CL affirmed at [56] (Bathurst CJ and Bellew J agreeing) that it is not open to an applicant to challenge a primary judge’s evidentiary findings pursuant to s 5F(3)(a), such not being interlocutory judgments or orders. His Honour noted at [57] that there is a "strong consideration against the grant of leave in respect of an order refusing separate trials where a ruling on the admissibility of evidence is a central issue" citing DAO at [16] per Spigelman CJ, at [106] per Allsop P and at [208] per Simpson J (Kirby and Schmidt JJ agreeing). It was held there was no error by the primary judge in allowing the Crown to rely on tendency evidence and ultimately leave to appeal was refused: Hammoud at [58] per Hoeben CJ at CL (Bathurst CJ and Bellew J agreeing).

  5. A number of principles can be distilled from the foregoing analysis of the previous cases:

  1. A demonstration of an error of principle (with a sufficient degree of clarity) and the possibility or likelihood of substantial injustice in respect of an interlocutory decision, may give rise to a grant of leave to appeal: DAO at [76] per Allsop P; Koschier at [47] per Bell CJ (Harrison CJ at CL and Chen J agreeing).

  2. Leave should not readily be granted pursuant to s 5F of the Criminal Appeal Act unless an appropriate case is made out, showing an error of principle apt to cause irregularity or injustice: O’Haire at [48] per N Adams J citing Van Phu Ho at 4 per Mahoney JA (Gleeson CJ and Dunford J agreeing); Queanbeyan City Council at [25] per Whealey JA (Hall and McCallum JJ (as her Honour then was) agreeing); Rosamond at [7] per Garling J (Button and Wilson JJ agreeing).

  3. The Court should have regard to whether a grant of leave to appeal an interlocutory decision will prevent, or minimise, or fragment the process of criminal justice: Rosamond at [8] per Garling J (Button and Wilson JJ agreeing), citing Einfeld at [23] per the Court.

  4. Where an interlocutory decision arises in criminal proceedings which involves a matter of public importance or an issue or issues where there are conflicting decisions at either first instance or appellate levels, an appellate court may be more inclined to grant an application for leave to appeal under s 5F of the Act: Koschier at [50] per Bell CJ (Harrison CJ at CL and Chen J agreeing).

  5. A strong consideration against the grant of leave to appeal against an interlocutory order is where the admissibility of evidence is a central issue in the interlocutory decision. Findings as to the admissibility of evidence do not fall within the ambit of s 5F: Hammoud at [56]-[57] per Hoeben CJ at CL (Bathurst CJ and Bellew J agreeing); DAO at [16] per Spigelman CJ, at [74], [106] per Allsop P and at [208] per Simpson J (Kirby and Schmidt JJ agreeing).

Reasons for Refusing Leave to Appeal

Grounds 2 and 3

  1. It is convenient to deal with Grounds 2 and 3 first because a threshold question arises as to whether this Court’s jurisdiction is enlivened under s 5F of the Criminal Appeal Act. Section 5F relevantly provides:

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

(b) proceedings under sections 97 and 99 and Division 9 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and

(c) proceedings in Class 5 of the Land and Environment Court’s jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979).

(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.

…

  1. It is clear that the jurisdiction of this Court to grant leave to appeal under
    s 5F(3)(a) is limited to interlocutory judgments or orders. The complaints the applicant raises in Grounds 2 and 3 do not involve an interlocutory judgment. The preliminary issue, therefore, is whether the primary judge made an “interlocutory order” (or orders) with respect to the defences available to the applicant at his trial. In order to amount to an “interlocutory order” within the meaning of s 5F(3), it must be established that the Court has made a command that something be done (or not be done), which is enforceable by the Court should there be non-compliance: R v Matthews [2018] NSWCCA 7 at [31] per the Court; KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249 at [55]-[56] per the Court; AF v R [2015] NSWCCA 35 (“AF”) at [32] per R A Hulme J (Hoeben CJ at CL and Harrison J (as his Honour then was) agreeing).

  2. Although it has been acknowledged that there is no “bright line test” for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other hand (see AF at [31] per R A Hulme J (Hoeben CJ at CL and Harrison J (as his Honour then was) agreeing)), it is readily apparent in this case that the primary judge did not make an “interlocutory order” with respect to the defences available to the applicant at trial. The applicant’s complaints, in this regard, are misconceived.

  3. The issue as to the available defences at trial arose during a voir dire on the admissibility of discrete pieces of evidence. The voir dire was conducted over three days between 14 and 16 October 2024, during which time the primary judge had to determine the admissibility of evidence including appropriate edits to various social media posts and interviews involving the applicant. It was in that context that there was discussion about the potential availability of defences including a defence of honest and reasonable mistake of fact, self-defence, duress, and necessity.

  4. That exercise was necessary because the primary judge had to determine the scope of the issues raised in the applicant’s opening address. Understandably, her Honour wanted to avoid having matters raised in the applicant’s opening address for which there was no evidentiary basis. The transcript of proceedings, as well as the primary judgment, is replete with references to the fact that the primary judge would not make final rulings until the evidence was adduced.

  5. Insofar as the primary judge limits the availability of the defence of honest and reasonable mistake of fact, that ruling was indicative only. Her Honour repeatedly explained (with the applicant acknowledging that he understood) that she was obliged to consider the evidence to determine whether it was capable of providing an evidentiary basis for each defence.

  6. In respect to the defence of honest and reasonable mistake of fact, the primary judge made a preliminary ruling that the defence was available in two ways:

“HER HONOUR: And it is, as I understand it, in a very limited way. Not as I understand it, my ruling is that it is available at this early stage of the proceedings in a very limited way and that’s limited to the evidence that you said you will give. That it was your belief that the child was deceased.

ACCUSED BURTON: Yeah, there’s a possibility that he could be dead, your Honour. He’s certainly at risk of significant harm and could well be deceased as well.

HER HONOUR: Well, you see, the defence of honest and reasonable mistake, the jury would need to be satisfied that you held, mistakenly held, the belief, reasonably, mistakenly, held the belief that the child was deceased. All right? Because then that falls within an exception to 105 and if that were true, that mistaken belief, then you wouldn’t be guilty of any of the offences. Do you understand that?

ACCUSED BURTON: Yeah, which is exactly the same as the case with William Tyrrell.

HER HONOUR: The second aspect is your submission yesterday, or based on your submission yesterday, that in light of the other major media outlets publishing the identity of the child, that you had an honest and reasonable belief that you could publish the name with the consent of the Secretary, which is also an exception to the charge. And if that mistaken belief was in fact true, then you would be not guilty of any of the offences. They’re the only basis on which I can see you can rely on the defence of honest and reasonable mistake. Whether or not you believed or Dr Katelaris believed that the child had been unlawfully abducted, at best, is an honest and reasonable mistake as to the application of the law, not of a fact.

So it is only those two aspects, that is, if you intend to give evidence, if it’s your case that you thought that the child was deceased, then there would be available to you the defence of honest and reasonable mistake. If you believed that the secretary had given consent to the publication of the child’s name that would also mean that that defence is available to you, but only on those two limited basis.

ACCUSED BURTON: On your ruling.

HER HONOUR: Yes.

ACCUSED BURTON: Based on your ruling. Okay. All right. Well, thank you.

ACCUSED KATELARIS: Very briefly, whatever the prosecution may say, my intention of announcing the kidnapping of the child the very next morning was to establish a momentum to return the child to its parents, which it has been done now. It’s very clearly an act to undo the wrongdoing, the kidnapping of the child with violence. Is that clear?

HER HONOUR: I understand your position.

ACCUSED KATELARIS: Thank you.

HER HONOUR: Yes, Mr Queenan, did you have anything to say?

QUEENAN: Not unless I could assist, your Honour.

HER HONOUR: All right. Well, I do intend to give a ruling at 10am as to my preliminary view as to the availability of self-defence. That may well change throughout the course of the proceedings and based on the evidence that is adduced before the jury. And it’s in order to assist you in your opening, really, Mr Burton.

ACCUSED BURTON: I understand. There’s a possibility that that ruling may also change depending on what evidence is presented to you today as well, possibly.

HER HONOUR: Yes.”

  1. The primary judge did not make an interlocutory order with respect to the availability of self-defence (understood in this case as defence of another). The primary judge told the applicant:

“HER HONOUR: Well, you see, what my - my rulings are at an advanced stage of the - obviously at a very early stage of an advanced stage [of] the proceedings. And as I said yesterday, Mr Burton, it’s very difficult to predict how the evidence will be adduced or what will be adduced and what directions will be required. If I ruled against you in respect of self-defence, it will only be to the extent that I would be counselling against you, opening to the jury as self-defence as a defence.

If the evidence, if you were permitted to or did adduce evidence throughout the trial that supported the availability of that defence, then I will reconsider this issue of self-defence. I cannot say that it would be a matter that I would state a case. This is just restricted to what you ought to be doing in your opening addresses.

ACCUSED BURTON: Okay. So in regards to opening, because - okay. So just to clarify, so I--

HER HONOUR: I just don’t want you opening on something, telling the jury that it is a defence available to you, then the evidence does not amount to self defence.

ACCUSED BURTON: Okay. I understand. And just to clarify there after listening to what you said yesterday, I’ve kind of redrafted my opening anyway and not putting any of those things in because that’s a matter for the jury to decide later. So I’m not clarifying anything around defences I’m just going to talk about my perception of events as they occurred, which I believe is all fine.

…

HER HONOUR: I’m not prohibiting you, at this point at least. I don’t know if the Crown’s going to raise an objection to what evidence you wish to lead in that respect, but all I can do is, on the limited material available before me, and a lot of that is based on submissions by you yesterday—

ACCUSED BURTON: Understood.

HER HONOUR: --Mr Burton, not even evidence. All I can do is say well, on that material, that appears to me that that defence may be available to you if that evidence is before the jury.

ACCUSED BURTON: Yes.

HER HONOUR: It’s hard to form a conclusive view at this very early stage.”

  1. In answer to a complaint made by the applicant that the primary judge did not have the “right” to remove defences from the jury’s consideration, her Honour again emphasised:

“HER HONOUR: Well, if you have listened to anything I’ve said, I haven’t removed anything. I’m counselling you on what you ought not to open to the jury on at the moment because I don’t see it arising on the evidence.”

  1. In addition to the multiple references in the transcript which clearly reveal that the primary judge did not make “interlocutory orders” with respect to the availability of defences, her Honour, in the primary judgment, emphasised that the limitations on the defence of honest and reasonable mistake of fact was by way of “a preliminary indication” only. The primary judge made no determination as to the availability of self-defence. Furthermore, for the purpose of determining the application for a permanent stay, the primary judge assumed that those defences may be available to the applicant.

  2. In the event that the primary judge limits the defences available for the jury’s consideration, that would be a matter properly left to consideration on appeal after trial (if a conviction resulted).

  3. I am comfortably of the view that the primary judge did not make “interlocutory orders” with respect to the availability of defences. This Court’s jurisdiction is not enlivened in relation to Grounds 2 and 3 and it is on that basis that leave to appeal was refused. I turn to consider the refusal of leave, in relation to Ground 1.

Ground 1

  1. An order refusing to permanently stay the proceedings, is an interlocutory order pursuant to s 5F(3) of the Criminal Appeal Act. Given the nature of that interlocutory decision, it is necessary to set out the principles relevant to a grant of a permanent stay of criminal proceedings, which were helpfully summarised by Bell CJ (Davies and N Adams JJ agreeing) in La Rocca v R [2023] NSWCCA 45 at [34]:

“[34] The following principles or statements of authority relating to the grant of a permanent stay of a criminal prosecution appear to be uncontroversial:

1. the remedy is an extraordinary one, only to be given in exceptional or extreme circumstances: R v Glennon (1992) 173 CLR 592 at 605; [1992] HCA 16 (Glennon); Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [33]-[35] (Dupas); Strickland at [166];

2. such a description recognises the powerful social imperative for those who are charged with criminal offences to be brought to trial: Strickland at [106], see also at [166]-[167], [262];

3. notwithstanding this, the categories or circumstances in which the exceptional remedy of a permanent stay of criminal proceedings may be granted are not and should not be closed: Strickland at [99];

4. there is no ‘definitive category’ of extreme cases: Dupas at [35];

5. each case accordingly must be decided according to its own facts: Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti) at [60]; Strickland at [99], [246], [261];

6. a permanent stay of criminal proceedings may be appropriate where to refuse such a remedy would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42; Moti at [10];

7. the administration of justice may be brought into disrepute in a number of different ways;

8. one example which may warrant a permanent stay is the toleration of an unfair trial where there is a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’: Barton v The Queen (1980) 147 CLR 75 at 111; [1980] HCA 48; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; [1989] HCA 46; Glennon at 605-606; Dupas at [35];

9. other examples include where the manner in which the case was developed and brought:

● was contrary to basic tenets of the Australian criminal justice system as may be embodied in statute: Strickland at [261], see also at [186]-[187];

● was contrary to the rule of law: R v Horseferry Road Magistrates’ Court; ex parte Bennett [1994] 1 AC 42 at 62, 67; R v Grant [2009] 2 SCR 353 at [67];

● was otherwise corrosive of the ‘trust reposed constitutionally in the courts’: Moti at [57]; or

● presented a defect in process ‘so profound as to offend the integrity and functions of the court as such’: Strickland at [106].

10. considerations beyond the immediate trial may bear upon confidence in the administration of justice: Strickland at [270]; Ridgeway at 75, 77-78, 86-87, 92;

11. the administration of justice may be brought into disrepute where a miscarriage of justice would be the result of a failure to grant a permanent stay of proceedings: Glennon at 616, 624;

12. the administration of justice may be brought into disrepute irrespective of whether the conduct affecting proceedings is deliberate or reckless, and the grant of a permanent stay of proceedings is not confined to cases of deliberate and knowing misconduct nor dependent upon the initial motivation or purpose of the offending party: Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [135]; Strickland at [99];

13. the administration of justice will not necessarily be brought into disrepute, however, where prejudice to an accused may be cured by, for example, directions to a jury or undertakings by prosecuting authorities, or where the prejudice is of a minor or venial nature: Strickland at [100].”

  1. It is important to note at the outset that there is no challenge to the legal principles applied by the primary judge in refusing the application to stay the proceedings. Instead, the applicant’s submissions in support of Ground 1 can be separated into two general categories. The first is the asserted irreparable prejudice arising from the unavailability of Detective Senior Sergeant Turner and Ms Hills. The second category relates to an asserted abuse of process. With respect to this second category the applicant relied upon the same combination of factors that were relied upon before the primary judge set out at [17]-[21].

  2. Witness unavailability has not ordinarily been sufficient for the grant of an order to permanently stay proceedings: see R v VPN (Court of Criminal Appeal (NSW), 4 March 1994, unrep); R v Fleming [2007] NSWSC 337 at [12]-[17] per Studdert J; Boulos v R [2008] NSWCCA 119 at [49]-[52] per James J (Hoeben and Hall JJ agreeing); R v Smith [No 1] [2011] NSWSC 725 at [93] per Buddin J; Webb v R (2012) 225 A Crim R 550; [2012] NSWCCA 216 at [68], [73] per Johnson J (Macfarlan JA and Beech-Jones J agreeing); JD v R [2013] NSWCCA 198 at [22] per the Court. The death or unavailability of witnesses may present obstacles to a fair trial, but they do not necessarily cause proceedings to be permanently stayed. There may be other ways in which the prejudice can be cured, for instance, by excluding evidence or by way of judicial direction. Each case must be determined on its own facts.

  3. In this case, the unavailability of Amanda Hills does not give rise to irreparable prejudice. Ms Hills made a statement, dated 27 October 2017, in which she explained that her role included the delegation to sign removal papers, on behalf of the Secretary of FACS, when a child or young person is to be removed without a warrant pursuant to s 43 of the CYPCP Act. On 19 May 2017, Ms Hills was managing the triage team at Charlestown Community Services Centre. On that date it was determined that CWS was at immediate risk of harm. Ms Hills prepared and signed the order for his removal. She attached a copy of that order as an annexure to her statement of 27 October 2017.

  4. The applicant submitted that it was crucial to his case to adduce evidence from Ms Hills that the child had been illegally removed by cross-examining the witness and having the opportunity to challenge her delegation. The applicant placed some reliance upon the fact that Ms Hills was not present when the child was removed. The applicant conceded however, during the voir dire, that he did not become aware of Ms Hills’ absence until sometime after the alleged breaches of s 105, and therefore it was not a factor that could have operated on his state of mind at the relevant time:

“ACCUSED BURTON: …And the only other thing was in regards to Ms Hills, when we spoke yesterday, and I spoke to my learned friend about this, but to raise the fact that, in the time of these alleged offences, I was not aware that Ms Hills was not the person at that offence clearly. I took out a private prosecution against her. When I checked the timing of the dates, it was clearly after that when that all transpired. So I didn’t become aware that she wasn’t present at the removal until that that prosecution was unsuccessful or during that process.” (Emphasis added.)

  1. Detective Senior Sergeant Catherine Turner was the original Officer in Charge of the investigation. In that capacity, she communicated with a prosecution witness, Blair Collier, to arrange the preparation of her police statement. At the relevant time, Ms Collier was the Executive Officer in the Office of the Secretary of FACS. Ms Collier’s statement of 27 November 2017 sets out a chronology with respect to the removal of CWS and related care proceedings. Ms Collier gives an account of accessing the applicant’s Facebook page and observing the posts that constitute the allegations. The statement also outlines the contact that Catherine Samuels, Director of Child Protection within FACS Legal, had with the applicant requesting that he remove Facebook posts which were in breach of s 105 of the CYPCP Act (and non-publication orders which had also been made pursuant to s 7(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of the Children’s Court proceedings).

  2. Ms Collier will be called to give evidence in the Crown case. Also available, is evidence of email communications between Detective Senior Sergeant Turner and Ms Collier between 13 and 28 November 2017. The email exchanges demonstrate Detective Senior Sergeant Turner’s efforts to compile Ms Collier’s statement. These communications disclose efforts on the part of Detective Senior Sergeant Turner to elicit affidavit material from Ms Collier, informing the latter that she would adjust her affidavit in accordance with the requirements of the ODPP and requesting an electronic version of the affidavit for “cut and paste” purposes and to “remove the bits not required.” In an email dated 14 November 2017, Detective Senior Sergeant Turner offered to send Ms Collier “examples of the other statements already supplied in this matter to assist [her] in preparing the statement quickly.”

  3. The applicant contends that the inability to cross-examine Detective Senior Sergeant Turner about these communications and other communications that may have taken place between them by putting to her the suggestion that they deliberately colluded to tailor evidence, significantly impairs his ability to challenge their credibility. The unavailability of Detective Senior Sergeant Turner is said to give rise to irreparable prejudice to the applicant.

  4. There are at least two difficulties with that contention. The first, is that it ignores the availability of the evidence of email communication between the two witnesses, which can be used to cross-examine Ms Collier, who will be called as a witness. The second difficulty is that the question of whether or not there may have been conversations between the two witnesses (other than the email communications) that may potentially go to the credibility of Ms Collier, is highly speculative.

  5. Furthermore, much of the evidence to be given by Ms Collier relates to accessing the applicant’s Facebook posts and observing the material that allegedly constitutes the offences. Her evidence relates to the communications sent to the applicant which put him on notice that he was in breach of s 105 of the CYPCP Act and requesting that he take down the relevant posts. Much, if not all, of that evidence is supported by the various exhibits referred to in the statement of Ms Collier.

  6. This is not a case where the unavailability of Detective Senior Sergeant Turner and Ms Hills results in irreparable prejudice to the applicant. To the extent that the applicant demonstrates a forensic disadvantage, judicial direction can adequately cure any resulting prejudice.

  7. In addition to the unavailability of Detective Senior Sergeant Turner and Ms Hills, the applicant relies upon a number of factors, as he did in the Court below, in support of the contention that the proceedings constitute an abuse of process.

  8. The applicant relies upon the delay in the proceedings and the related financial and psychological cost to him by reason of that delay. The applicant was charged on 21 December 2017. The applicant’s trial was listed to commence on 14 October 2024.

  9. An offence contrary to s 105(2) of the CYPCP Act, is an indictable offence that is to be dealt with summarily unless a prosecutor or charged person elects otherwise: Criminal Procedure Act Sch 1, Table 1, s 18. The applicant elected, as was his right, to have the matter determined by way of a jury trial. The delay in the proceedings coming to trial has not been occasioned as a result of delays in listings. The history of the litigation that has extended over many years was referred to by Button J in Burton v The Director of Public Prosecutions [2024] NSWSC 863. The background of the matter is, as his Honour noted at [6], recounted in many judgments of many courts including Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21; Burton v Local Court of New South Wales [2019] NSWSC 191; Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120; Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245; Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68; Burton v Babb [2020] NSWCA 331; Secretary, Department of Communities and Justice v Paul Robert Burton [2021] NSWSC 1285; Burton v Director of Public Prosecutions (NSW) (2021) 361 FLR 432; [2021] NSWSC 1230; Burton v Secretary, Department of Communities & Justice (formerly Family and Community Services) [2022] NSWCA 7; Burton v Director of Public Prosecutions (2022) 110 NSWLR 145; [2022] NSWCA 242; Burton v Babb [2023] NSWDC 103; and Burton v Babb [2023] NSWCA 242.

  10. The applicant was entitled to raise issues and initiate proceedings as he saw fit. However, it is somewhat ironic that the applicant now relies upon the delay in coming to trial, as one of the reasons asserting an abuse of process. This is not a case where evidence has been lost, or some other forensic disadvantage has been occasioned, because of the delay. As indicated above, the unavailability of two Crown witnesses, does not amount to irreparable or significant prejudice in this case. To the extent that any prejudice is occasioned to the applicant arising from the witnesses unavailability, it can be cured by judicial direction.

  11. The applicant’s contention that “literally millions of people everywhere” have breached s 105 by publishing the name of CWS, but have not been themselves charged, does little to advance the applicant’s case. The exercise of prosecutorial discretion is a matter for the Director.

  12. Similarly, the contention that even if found guilty, the penalty would not involve a conviction, does little to advance the abuse of process argument. For my part, that assertion is questionable, notwithstanding remarks made by previous judicial officers.

  13. The applicant also relies on “apprehended bias”, in support of the contention that the proceedings constitute an abuse of process. It is not entirely clear as to how the applicant relies upon “apprehended bias” in support of the abuse of process argument. The applicant appears to be asserting that there was collusion between Detective Senior Sergeant Turner, Ms Collier and a solicitor from the ODPP, to have the applicant charged by a member of the Child Abuse and Sex Crimes Squad and to tailor the statement of Ms Collier so as to exclude exculpatory material.

  14. There is no evidentiary basis, in my view, to support an assertion that there was collusion between these individuals and their respective Organisations to cause detriment to the applicant. In any case, to the extent that communications between these individuals is relevant to an issue at trial, the evidence is available by way of relevant email communications.

  15. The applicant does not challenge the legal principles applied by the primary judge in refusing to stay the proceedings. Not only is there no issue of principle raised by Ground 1, but there is no issue or error of principle that carries with it the possibility or likelihood of substantial injustice.

  16. It is for these reasons that I joined with the order refusing leave to appeal with respect to Ground 1.

Orders

  1. Leave to appeal is refused.

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Decision last updated: 22 November 2024

Cases Citing This Decision

0

Cases Cited

66

Statutory Material Cited

7

Craig v South Australia [1995] HCA 58
Craig v South Australia [1995] HCA 58
AF v R [2015] NSWCCA 35