Koschier v R

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.