KN v R

Case [2017] NSWCCA 249 20 October 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: KN v R [2017] NSWCCA 249
Hearing dates: 22 September 2017
Date of orders: 22 September 2017
Decision date: 20 October 2017
Before: Beazley ACJ;
Walton J;
N Adams J
Decision:
Application for a stay pending the hearing of the applicant’s appeal from the decision of the trial judge made 20 September 2017 refused.

Catchwords: CRIMINAL LAW – procedure – adjournment – stay of proceedings or order restraining proceedings – application for temporary stay of trial pending determination of application for leave to appeal pursuant to Criminal Appeal Act 1912 (NSW), s 5F – whether decision to permit evidence to be given by AVL was an “order” – whether trial judge erred in exercise of her Honour’s discretion to accept that evidence could be given by AVL and to refuse adjournment application
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), s 294B
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Cases Cited: AF v R [2015] NSWCCA 35
Agius v R (2011) 80 NSWLR 486; [2011] NSWCCA 119
ASIC v Rich [2004] NSWSC 467; 49 ACSR 578
Cheikho v R (2008) 75 NSWLR 323; [2008] NSWCCA 191
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v Whittens Group Pty Ltd [2017] NSWSC 329
Kirby v Centro Properties Limited [2012] FCA 60; 288 ALR 601
Macdonald v R; Maitland v R [2016] NSWCCA 306
R v Alexandroaia (1995) 81 A Crim R 286
R v Bozatsis and Spanakakis (1997) 97 A Crim R 296
R v Lodhi [2006] NSWSC 587; (2006) 163 A Crim R 488
R v Qaumi and Ors (No 9) [2016] NSWSC 171
R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
R v Steffan (1993) 30 NSWLR 633
R v Wilkie, R v Burroughs, R v Mainprize (2005) 193 FLR 291; [2005] NSWSC 794
Slotboom v R [2013] NSWCCA 18
Subramaniam v R (2004) 211 ALR 1; [2004] HCA 51
Category: Principal judgment
Parties: KN (Applicant)
Regina (Respondent)
Representation:
Counsel:
C Waterstreet (Applicant)
E Balodis (Crown)
Solicitors:
Murphy’s Lawyers Inc (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/75571
Publication restriction: Yes
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

20 September 2017

Before:

Traill DCJ

File Number(s):

2016/75571

Headnote

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

The applicant was indicted to stand trial on four counts of sexual offences relating to one complainant. On the first morning of trial, the Crown made an application for the complainant and a complaint witness to give evidence via audio visual link (AVL) from their residential addresses in foreign jurisdictions. The following day, the Crown informed the trial judge that it proposed to use the program “Jabber” for this purpose. The applicant opposed the application and applied for an…

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 KN v R

Details

AGLC: KN v R [2017] NSWCCA 249
Case: [2017] NSWCCA 249
Decision Date: 20 October 2017

CaseChat Overview and Summary

The case of KN v R involved the applicant, KN, who applied for a temporary stay of his trial pending the determination of an application for leave to appeal. The application was made pursuant to section 5F of the Criminal Appeal Act 1912 (NSW). The trial related to criminal charges against the applicant, and the application for the stay was made to challenge the decision of the trial judge to permit evidence to be given by audio-visual link (AVL). The High Court of Australia was tasked with determining whether the decision to permit AVL evidence constituted an "order" under the Criminal Appeal Act 1912 (NSW) and whether the trial judge had erred in exercising her discretion in allowing the evidence and refusing the adjournment application.

The legal issues before the Court involved the interpretation of statutory language and the exercise of judicial discretion. The primary issue was whether the decision to allow AVL evidence was an "order" that could be stayed under section 5F of the Act. Additionally, the Court had to consider whether the trial judge had exercised her discretion appropriately in allowing the evidence and denying the adjournment. The Court was required to determine whether the decision involved a sufficient degree of finality and whether the trial judge had considered all relevant factors in making her decision.

In determining these issues, the Court held that the decision to permit AVL evidence was not an "order" as defined in section 5F of the Criminal Appeal Act 1912 (NSW). The Court emphasised that for an order to be stayed, it must be a final decision that has significant consequences for the applicant. The Court found that the decision to allow AVL evidence was not a final decision and did not have the requisite degree of finality to be considered an order under the Act. Furthermore, the Court held that the trial judge had exercised her discretion appropriately in allowing the evidence and denying the adjournment. The Court found that the trial judge had considered all relevant factors and had not erred in her decision-making process.

As a result of this decision, the application for a stay was dismissed. The trial proceeded without interruption, and the applicant's opportunity to appeal the trial judge's decision was preserved for a later stage in the legal process. The Court's decision clarified the scope of section 5F of the Criminal Appeal Act 1912 (NSW) and provided guidance on the exercise of judicial discretion in relation to AVL evidence.

Orders