Leiper v The Queen - [2018] NSWCCA 117

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Leiper v R [2018] NSWCCA 117
Hearing dates: 4 June 2018
Date of orders: 08 June 2018
Decision date: 08 June 2018
Before: Leeming JA; Bellew J; Wilson J
Decision:
Leave to appeal is refused.

Catchwords: CRIMINAL LAW – stay of proceedings – accused charged with unlawfully killing his disabled daughter – police investigation produced 370 hours of sound recordings from listening device – none of recordings incriminated accused – recordings all disclosed to accused in 2016 – Legal Aid unwilling to pay for lawyers to listen to recordings – Crown unwilling to provide transcripts – trial judge refused to grant stay pending provision of transcripts – whether leave should be granted to appeal from refusal to grant stay – where insufficient prospects of success – where allowing appeal would likely result in vacating the trial – leave refused
Legislation Cited: Crimes Act 1900 (NSW), s 18
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Appeal Rules (NSW), r 5B
Criminal Procedure Act 1986 (NSW), ss 141, 142
Cases Cited: R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
Category: Principal judgment
Parties: David Alexander Leiper (Applicant)
Regina (Respondent)
Representation:
Counsel:
BW Walker SC, M Fokkes (Applicant)
N Adams (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/51774
Publication restriction: Judgment will not be published on Caselaw until conclusion of trial.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

25 September 2017

Before:

His Honour Judge Ellis DCJ

File Number(s):

2014/51774

Judgment

THE COURT: By indictment dated 24 July 2014, Mr David Leiper has been charged with one count of unlawfully killing his daughter Isabella (then aged nine) on or about 16 July 2011, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW). There has not as yet been a trial. He seeks leave to appeal, pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), from the interlocutory order made by the primary judge on 25 September 2017 refusing an application for a stay of the proceedings. Leave is required because the primary judge did not certify that the order was a proper one for determination on appeal pursuant to s 5F(3)(b).
What follows is derived from a document signed by Senior Counsel titled “A Summary of the Crown Case” which was in evidence before the primary judge. Because parts of what follows immediately below and elsewhere in this judgment refer to documents which may never be tendered at the trial, this judgment will not be published on Caselaw until the conclusion of the trial.

Factual background

The deceased suffered from a severe form of cerebral palsy and was unable to talk, walk, or care for herself in any way. Feeding her was difficult, such that at the time of her death she weighed 15kg. She was cared for by her parents at…

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 Leiper v The Queen

Details

AGLC: Leiper v The Queen [2018] NSWCCA 117
Case: [2018] NSWCCA 117
Decision Date: 08 June 2018

CaseChat Overview and Summary

The appeal before the Court was brought by the accused, Leiper, against the decision of the trial judge to refuse a stay of proceedings in his criminal trial for the alleged unlawful killing of his disabled daughter. The accused sought leave to appeal on the basis that the refusal to grant a stay was an error of law, as it resulted in a denial of his right to a fair trial. The central issue was whether the trial judge's refusal to stay the proceedings pending the provision of transcripts of 370 hours of sound recordings obtained by police during the investigation was an error of law. The accused argued that the lack of transcripts hindered his ability to adequately defend himself, while the Crown maintained that the accused had been provided with the recordings themselves and that transcripts were not a necessary component of a fair trial.

The Court considered whether the refusal to grant a stay constituted an error of law, particularly in the context of the accused's right to a fair trial. The Court noted that the accused had been provided with the recordings, but argued that the sheer volume of the recordings and the absence of transcripts made it difficult for him to effectively prepare his defence. The Court also examined the nature of the evidence and whether it was incriminatory, finding that none of the recordings contained any evidence that implicated the accused in the alleged crime. Despite this, the Court held that the refusal to grant a stay was not an error of law, as the accused had not demonstrated sufficient prospects of success on appeal, and allowing the appeal would likely result in the vacating of the trial. The Court concluded that the trial judge's decision was within the range of acceptable outcomes, and therefore refused the accused's application for leave to appeal.

As the Court found that the trial judge's decision was not an error of law, the appeal was dismissed. The Court did not grant leave to appeal the refusal to stay the proceedings, and the trial proceeded as scheduled. The accused's right to a fair trial was not found to have been compromised by the absence of transcripts, and the Court maintained that the accused had been provided with the necessary materials to adequately prepare his defence. The Court emphasised that the accused's right to a fair trial is a fundamental principle in the criminal justice system, but also acknowledged that this right must be balanced against the need to ensure that trials are conducted efficiently and effectively. In this case, the Court found that the trial judge's decision to proceed with the trial, despite the absence of transcripts, was a reasonable and lawful exercise of judicial discretion.

Orders