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
[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 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.