Koschier v R

Case [2024] NSWCCA 24


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Koschier v R [2024] NSWCCA 24
Hearing dates: 2 February 2024
Date of orders: 26 February 2024
Decision date: 26 February 2024
Before: Bell CJ at [1];
Harrison CJ at CL at [76];
Chen J at [77]
Decision:

Leave to appeal refused.

Catchwords:

CRIME – Appeals – interlocutory appeal – decision to refuse a permanent stay – criterion for leave to appeal from interlocutory decision in criminal proceedings – whether leave to appeal should be granted – where applicant for stay had been found unfit to stand trial on the indictment pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether standard of appellate review is the correctness standard in light of the High Court’s decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 – whether there was an error of principle and possibility or likelihood of substantial injustice

CRIMINAL PROCEDURE – stay of proceedings – permanent – where permanent stay of proceedings sought on multiple bases including the Applicant’s mental infirmity and forensic disadvantages arising out of delays in bringing the prosecution – whether “common humanity” test applies in cases where more than mental infirmity is relied upon to found an application for a permanent stay – whether sufficient weight given to the Applicant’s mental infirmity – whether primary judge inappropriately weighed the forensic advantage accruing to the accused as a result of delays in bringing the prosecution against those accruing to the Crown

Legislation Cited:

Criminal Appeal Act 1912 (NSW) s 5F

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 36, 54, 56, 59, 62, 63

Civil Procedure Act 2005 (NSW) ss 6A and 67

Cases Cited:

Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Agius v The Queen (2011) 80 NSWLR 486; [2011] NSWCCA 119

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

Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

BTU v R [2023] NSWCCA 36

CBRE (V) Pty Limited v Trilogy Funds Management Limited (2021) 107 NSWLR 202; [2021] NSWCA 316

CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313

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

Derley v R [2016] NSWCCA 60

Director of Public Prosecutions (Cth) v Knopp [2023] VSCA 315

Dupas v R (2010) 241 CLR 237; [2010] HCA 20

Finniss v New South Wales [2023] NSWCA 292

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

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

Gorman v McKnight [2020] NSWCA 20

Continue reading Koschier v R

Sign in free to access the full text

Details
AGLC
Koschier v R [2024] NSWCCA 24
Case
[2024] NSWCCA 24
Decision Date

CaseChat Overview and Summary

The applicant, Mr Koschier, sought a permanent stay of the criminal proceedings against him, which were brought by the respondent, the Crown. Mr Koschier contended that he was unfit to stand trial due to mental health issues and that the delay in bringing the prosecution resulted in forensic disadvantages to him. The application for a permanent stay was heard in the Supreme Court of New South Wales and was ultimately dismissed by Justice Hulme. Mr Koschier appealed to the Court of Criminal Appeal, which heard an interlocutory appeal from the interlocutory decision to refuse a permanent stay.

The primary legal issues before the Court of Criminal Appeal were whether the standard of appellate review was correctness, and whether there was an error of principle and the possibility or likelihood of substantial injustice. The Court was also required to determine whether the primary judge gave sufficient weight to the applicant's mental infirmity and whether the primary judge appropriately weighed the forensic advantages accruing to the accused as a result of delays in bringing the prosecution against those accruing to the Crown.

The Court of Criminal Appeal held that the standard of appellate review in this case was correctness, in light of the High Court's decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore. The Court found that there was no error of principle and no possibility or likelihood of substantial injustice in the primary judge's decision. The Court also held that the primary judge appropriately weighed the forensic advantages accruing to the accused against those accruing to the Crown. The Court of Criminal Appeal dismissed the appeal.

The Court of Criminal Appeal made no orders as to costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.