Haris (a pseudonym) v The King (No 2)

In the case of Haris (a pseudonym) v The King (No 2), the Supreme Court of Victoria was called upon to consider an interlocutory appeal against a decision to deny a permanent stay of proceedings due to the unavailability of witnesses. The appellant, Haris, sought the stay on the basis that the absence of these witnesses would significantly prejudice his ability to mount a proper defence. Additionally, Haris challenged the decision to permit cross-examination regarding events on the night of the alleged offence. The Crown argued that the evidence was relevant and necessary for a fair trial.

The primary legal issues before the court were twofold. Firstly, the court had to determine the appropriate standard of appellate review applicable to the interlocutory decision. The court applied the correctness standard, as articulated in GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 97 ALJR 857 and Haris (a pseudonym) v The King [2023] VSCA 205. Secondly, the court considered whether the cross-examination of Haris regarding the events on the night of the alleged offence was permissible under the principles established in R v Hammond [1941] 3 All ER 318, Burns v The Queen (1975) 132 CLR 258, Wong Kam-Ming v The Queen [1980] AC 247, Macpherson v The Queen (1981) 147 CLR 512, and R v Hein (2013) 117 SASR 444.

The court found that the primary judge's decision was correct. It upheld the correctness standard of review and determined that the cross-examination was permissible as it was relevant to the events of the night in question. Consequently, the application for leave to appeal was granted, but the interlocutory decision was affirmed. The court concluded that the absence of the witnesses did not warrant a permanent stay, and the trial could proceed with the evidence available.