Ma v The King Ad v The King

MA
v
THE KING
AD
v
THE KING
[2024] HCASL 306
S115/2024
S116/2024

The applicants require an extension of time within which to seek special leave to appeal from part of a judgment of the Court of Criminal Appeal of New South Wales (Stern JA, Rothman and Button JJ agreeing) which allowed an appeal and set aside the order of the District Court of New South Wales (Ingram SC DCJ) granting a stay of the applicants' pending criminal trial, conditional upon a Crown witness being made available for cross-examination.
On the state of the evidence, an appeal and potential further delay to the trial would not be in the interests of justice, including in the circumstances in which the Crown has advised that should the trial unfold in such a manner that it becomes clear that the witness's evidence is necessary for a fair trial then the Crown may reconsider its refusal to call her to give evidence. Accordingly, it would be futile to grant the extension of time.
Special leave to appeal is refused.
Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
7 November 2024

CaseChat Overview and Summary

In the matter of Ma v The King and Ad v The King, the applicants sought an extension of time to apply for special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales, which had allowed an appeal and set aside a stay of their pending criminal trial. The applicants' trial had been stayed conditionally upon the availability of a Crown witness for cross-examination. The applicants argued that the circumstances warranted an extension of time to seek special leave to appeal this decision.

The central legal issue before the court was whether the applicants should be granted an extension of time to apply for special leave to appeal the decision of the Court of Criminal Appeal, which allowed an appeal and set aside the stay of their criminal trial. This issue hinged on whether such an appeal would be in the interests of justice, particularly given the Crown's indication that they might reconsider calling the witness if her evidence became necessary for a fair trial.

The court held that an extension of time would not be appropriate, as the appeal and potential further delay to the trial would not be in the interests of justice. The court reasoned that the state of the evidence and the Crown's conditional willingness to call the witness if necessary for a fair trial rendered the proposed appeal futile. Consequently, the court refused to grant the extension of time. The decision underscored that the interests of justice should prevail, especially where there is a possibility that the witness might be called if necessary during the trial. The court's decision was unanimous among the justices who heard the case.

No further orders were made beyond the refusal of the extension of time.

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