MA v The King; AD v The King - [2023] NSWCCA 233

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MA v R; AD v R [2023] NSWCCA 233
Hearing dates: 30 August 2023
Date of orders: 25 September 2023
Decision date: 25 September 2023
Before: Bell CJ at [1];
Ward P at [132];
Sweeney J at [133]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.
3. Restrict publication of reasons for judgment to the parties and their legal advisers until completion of trial.
4. Direct the Director of Public Prosecutions to notify the Associate to the Chief Justice when the trial has been completed in order that the restrictions of the publication of the reasons for judgment may be lifted.

Catchwords:
CRIMINAL PROCEDURE — Stay of proceedings — Permanent — where permanent stay of criminal proceedings sought as a result of coaching of complainant in charge certification conference by solicitor advocate — where notes of conference later disclosed to applicants’ legal representatives — where application for permanent stay declined at first instance — consideration of statutory obligations on prosecutors — whether applicants could have a fair trial — whether allowing the trial to continue would bring the administration of justice into disrepute —whether undertakings by Crown would mitigate any unfairness — factors relevant to grant of a permanent stay of proceedings
CRIME — Appeals — Interlocutory appeal — against decision to refuse a permanent stay — where error shown — whether Court should re-exercise discretion to grant stay

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW) s 15A
Crimes Act 1900 (NSW) ss 61I, 61J
Criminal Appeal Act 1912 (NSW) s 5F(3)(a)
Criminal Procedure Act 1986 (NSW) ss 64 (as at 29 April 2018), 66, 293A
Director of Public Prosecutions Act 1986 (NSW) s 13(1)
Evidence Act 1995 (NSW) s 165(2)
Victims Rights and Support Act 2013 (NSW) ss 5(1), 6.1, 6.5
Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 69-70
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 rr 24, 29

Cases Cited:
Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
House v The King (1936) 55 CLR 499; [1936] HCA 40
La Rocca v R [2023] NSWCCA 45
Majinski v Western Australia [2013] WASCA 10; (2013) 226 A Crim R 552
Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
R v Edwards (2009) 83 ALJR 717; [2009] HCA 20
R v Momodou and Limani [2005] 2 Cr App R 6; [2005] EWCA Crim 177
R v Yavuz (No 3) [2018] NSWSC 573
Re Eldridge (1880) 82 NY 161
Re Equiticorp Finance Ltd; Ex parte Brock [No 2] (1992) 27 NSWLR 391
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
Whitehorn v The Queen…

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.

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Details

Case: [2023] NSWCCA 233
Decision Date: 25 September 2023

CaseChat Overview and Summary

In the case of MA v The King and AD v The King, the applicants sought a permanent stay of criminal proceedings due to alleged coaching of the complainant by a solicitor advocate during a charge certification conference. The applicants argued that the disclosure of notes from the conference, which revealed the alleged coaching, prejudiced their ability to receive a fair trial. The applicants' application for a permanent stay was initially declined, and they subsequently appealed to the court.

The primary legal issue was whether the applicants could have a fair trial given the alleged coaching and the disclosure of the notes. The court also considered whether allowing the trial to continue would bring the administration of justice into disrepute, and whether any unfairness could be mitigated by undertakings from the Crown. The court examined the statutory obligations on prosecutors, and the factors relevant to the grant of a permanent stay of proceedings.

The court found that the applicants had a valid concern regarding the alleged coaching, which was a breach of statutory obligations. However, the court also noted that the applicants had not shown that the alleged coaching would necessarily result in unfairness at trial. The court held that the applicants could have a fair trial, and that allowing the trial to continue would not bring the administration of justice into disrepute. The court found that any unfairness could be mitigated by undertakings from the Crown, and that the applicants had not demonstrated that a permanent stay was necessary. The appeal was dismissed.

The court did not grant a permanent stay of proceedings, and the applicants were ordered to proceed to trial. The court emphasised the importance of ensuring that statutory obligations are followed, and the need to balance the interests of the applicants with the public interest in the administration of justice. The court also noted that the grant of a permanent stay is an exceptional remedy, and that it should only be granted where it is necessary to ensure a fair trial or to prevent a miscarriage of justice.

Orders