Camelo-Gomez v The The Queen - [2022] NSWCCA 108

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Camelo-Gomez v R [2022] NSWCCA 108
Hearing dates: 4 March 2022
Date of orders: 4 March 2022
Decision date: 01 June 2022
Before: Davies J at [1]
Bellew J at [95]
Fagan J at [96]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords:
CRIME – Appeals – Interlocutory appeal – s 5F of the Criminal Appeal Act – Appeal against refusal of permanent stay by primary judge – Delay of two decades between murder and charge – Whether delay was unreasonable – Whether proceedings were unfairly burdensome and vexatious – Whether continuation of proceedings amounted to abuse of court’s process – General principles governing grant of permanent stay of criminal proceedings – Where delay was not unreasonable – Where aspects of unfairness could be dealt with at the trial – Appeal dismissed

Legislation Cited:
Criminal Appeal Act 1912 (NSW) s 5F
Evidence Act 1995 (NSW) s 38

Cases Cited:
Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
Dawson v R [2021] NSWCCA 117
Jago v The District Court of New South Wales (1989) 168 CLR 239; [1989] HCA 46
Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
R v Camelo-Gomez [2022] NSWSC 136
R v Tolmie (7 December 1994, NSWCCA, Unreported)
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
Walton v Gardiner (1993) 177 CLR 3; [1993] HCA 77
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:
Nil

Category: Principal judgment
Parties: Isabela Camelo-Gomez (Applicant)
Crown (Respondent)
Representation:
Counsel:
B Rigg SC & C Walsley (Applicant)
M England & G Steedman (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/298987
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2022] NSWSC 136

Date of Decision:

21 February 2022

Before:

Wilson J

File Number(s):

2019/298987

Judgment

DAVIES J: The applicant has been charged with the murder of her mother, Irene Jones, at Lansvale on 2 November 2001. She has pleaded not guilty. Her trial has been fixed to commence on 7 March 2022. By a notice of motion filed 20 December 2021 the applicant sought from the trial judge, Wilson J, an order permanently staying her trial. On 21 February 2022, Wilson J refused the application and dismissed the notice of motion: R v Camelo-Gomez [2022] NSWSC 136.
On an appeal to this Court pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), this Court on 4 March 2022 granted leave to appeal but dismissed the appeal. These are my reasons for joining in the orders of the Court.
The bases for the application for the stay were the delay in bringing…

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.

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Details

Case: [2022] NSWCCA 108
Decision Date: 01 June 2022

CaseChat Overview and Summary

Camelo-Gomez appealed against the refusal of a permanent stay of criminal proceedings by a primary judge. The respondent, the Queen, charged the appellant with murder, which had occurred over two decades prior. The court considered whether the delay was unreasonable, if the proceedings were unfairly burdensome and vexatious, and if continuing the proceedings amounted to an abuse of the court’s process. The appeal raised questions about the general principles governing the grant of a permanent stay of criminal proceedings and the circumstances under which such a stay should be granted.

The court examined the principles established in previous cases, including the importance of balancing the rights of the accused with the public interest in the administration of justice. The court noted that while there was a delay of twenty years, it found that the delay was not unreasonable. Additionally, the court held that any unfairness that might arise from the delay could be addressed during the trial. The court emphasised that the primary judge had the discretion to consider the fairness of the proceedings and could make appropriate orders to mitigate any unfairness. The court concluded that the appeal did not meet the criteria for a permanent stay, as the delay was not unreasonable, and the fairness of the proceedings could be managed at trial.

In light of the findings, the court dismissed the appeal. The court found that the primary judge had exercised their discretion appropriately, and there were no grounds to grant a permanent stay. The court's decision underscores the importance of the public interest in the administration of justice and the principle that criminal proceedings should not be indefinitely delayed. The appeal was dismissed, and the criminal proceedings against the appellant were to continue as scheduled.

Orders