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 (1983) 152 CLR 657; [1983] HCA 42

X7 v R [2014] NSWCCA 273; (2014) 246 A Crim R 402

Texts Cited:

ODPP NSW, Prosecution Guidelines (March 2021)

Category:

Principal judgment

Parties:

In 2020/00298136:

MA (Applicant)
The Crown (Respondent)

In 2020/00298183:

AD (Applicant)
The Crown (Respondent)

Representation:

Counsel:

R Wilson SC with D Grippi and R Khalilizadeh (Applicant MA)
B W Walker SC with D Berents and T Quilter (Applicant AD)
T Game SC with M Millward (Respondent)

Solicitors:

Legal Aid NSW (Applicant MA)
Rebecca Dunlop Legal (Applicant AD)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/00298136; 2020/00298183

Publication restriction:

Restrict publication of reasons for judgment to the parties and their legal advisers until completion of trial.

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of information that identifies or is likely to lead to the identification of the complainant, her friends G or L, MA or AD.

Pursuant to an order of Pickering SC DCJ made on 26 July 2023, there is to be no publication of information that identifies or is likely to lead to the identification of the instructing solicitor EAJ.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

23 February 2023

Before:

Pickering SC DCJ

File Number(s):

2020/00298136; 2020/00298183

Decision Under Appeal

HEADNOTE

[This headnote is not to be read as part of the judgment]

MA and AD (the Applicants) were charged with two counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW). AD was additionally charged with four counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The first two counts related to the alleged assault of the complainant, CW, by MA and AD effectively simultaneously in a bathroom of a suite at the Skye Hotel in Parramatta on 2 March 2019. The counts solely against AD were alleged to have occurred straight afterwards, also in (but after MA had left) the bathroom.

An application for a permanent stay of the prosecutions was brought before Pickering SC DCJ (the primary judge) on the basis that, during a conference on 15 April 2021 (the April Conference), the solicitor advocate for the prosecution had improperly informed CW of evidentiary gaps in her witness statement made to the police on 18 March 2019 (the first statement) and of weaknesses in the prosecution case, and had ‘coached’ her in relation to her evidence and how to deal with challenges likely to be made when under cross examination at trial.

Shortly following the April Conference, CW made a second police statement (the second statement) which contained various further alleged recollections over and above those that had been recorded in the first statement. Notably, they picked up on matters that had been raised with CW and emphasised during the April Conference. The second statement was served on 23 April 2021. No disclosure was made of the notes of the April Conference until August 2022 following the issue of a subpoena on behalf of AD, which precipitated the application for a permanent stay.

The primary judge was strongly critical of the solicitor advocate’s conduct, finding that he had “completely tipped off the complainant” as to evidentiary gaps in her first statement and “created a real deception” by the non-disclosure of the April Conference notes. His Honour did not find that there was an intention to coach CW. The primary judge was also very critical of certain of the prosecutorial guidelines issued by the Director of Public Prosecutions (the DPP Guidelines) and held that certain guidelines were responsible for “systematic” failures within the Office of the Director of Public Prosecutions (ODPP).

Despite his varied criticisms of the solicitor advocate, the DPP Guidelines and the ODPP, the primary judge declined the application for a permanent stay on the basis that he considered that the Applicants could still receive a fair trial, largely because the jury at any trial would be capable of determining the complainant’s credibility and reliability, and, as a result of the disclosure of the notes from the April Conference, the Applicants had significant material which could be used powerfully to attack CW’s recollection of the events. The primary judge also declined to grant a stay on the basis of the “systematic” failures of the ODPP, finding that his power to grant a stay was not sufficiently wide to be engaged by such issues.

By notices of appeal dated 9 March 2023, the Applicants seek leave to appeal on four grounds, which essentially reduce to two key issues:

1. The trial judge erred in concluding that the Applicants could have a fair trial (the fair trial issue); and

2. The trial judge failed to consider whether the conduct of the prosecutor was such that to permit a trial to proceed in the light of it would bring the administration of justice into disrepute (the administration of justice issue).

The Court held (Bell CJ, Ward P and Sweeney J agreeing), granting leave to appeal but dismissing the appeal:

As to the fair trial issue:

1. The April Conference may have altered the way the trial was likely to proceed in a number of ways but not necessarily with the consequence that the trial will be rendered unfair. No error of law or other basis was established to impugn the primary judge’s exercise of discretion: [115]-[119] (Bell CJ); [132] (Ward P); [133] (Sweeney J).

2. Even if there were some issue with the primary judge’s assessment, leave to appeal on this ground would not have been granted in light of the Crown’s clear concession (which would be continued at trial) as to the impropriety of the solicitor advocate’s conduct, non-opposition to a s 165 warning being given and indication that the Crown itself would not seek a s 293A direction from the trial judge. Furthermore, the first statement and the second statement were not so different as to work unfairness to the Applicants, and to deprive them of enjoying a fair trial: [120]-[121] (Bell CJ); [132] (Ward P); [133] (Sweeney J).

As to the administration of justice issue:

3. The primary judge did not separately consider whether to permit the prosecutions to proceed would bring the administration of justice into disrepute in light of the conduct of the solicitor advocate, and the likely contamination of CW’s evidence, even if measures were available to the trial judge to mitigate any degree of unfairness to a satisfactory extent. This ground of appeal should be upheld and leave granted accordingly: [122]-[126] (Bell CJ); [132] (Ward P); [133] (Sweeney J).

4. Re-exercising the discretion, a stay should not be granted as the continuation of proceedings would not bring the administration of justice into disrepute: [126]-[129] (Bell CJ); [132] (Ward P); [133] (Sweeney J).

JUDGMENT

1. BELL CJ: This is an application for leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) from an interlocutory judgment (the primary judgment) of Pickering SC DCJ (the primary judge) declining to grant a permanent stay of proceedings.

2. MA and AD (the Applicants) were charged with two counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW). AD was additionally charged with four counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). Because they were both under the age of 18 when they are alleged to have committed the offences, the names of the Applicants have been anonymised pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), as has the name of the complainant (CW).

3. The first two counts related to the alleged assault of CW by MA and AD effectively simultaneously in a bathroom of a suite at the Skye Hotel in Parramatta on 2 March 2019. The counts against AD were alleged to have occurred straight afterwards, also in (but after MA had left) the bathroom.

4. The application for a stay was brought on the basis that, during a conference on 15 April 2021 (the April Conference), the solicitor advocate for the prosecution, Mr Thomas Buckingham, had improperly informed the complainant, CW, of evidentiary gaps in her witness statement made to the police on 18 March 2019 (the first statement) and weaknesses in the prosecution case, and had ‘coached’ her in relation to her evidence and how to deal with challenges likely to be made to her evidence when under cross examination at trial.

5. Shortly following the April Conference, following an email from a solicitor in the Office of the Director of Public Prosecutions (ODPP) to police requesting that a “further clarification statement” be taken, CW made a second police statement (the second statement) which contained various further alleged recollections over and above those that had been recorded in the first statement. Notably, they picked up on matters that had been raised with CW and emphasised during the April Conference. The second statement was served on 23 April 2021. No disclosure was made of the notes of the April Conference at this time.

6. In circumstances described more fully below, it was not until August 2022 that a set of the April Conference notes was disclosed by the ODPP. Because of their centrality to this urgent appeal, a copy of those notes, redacted only to anonymise the identity of the complainant and other young persons, is annexed to this judgment. The many portions of the notes that have been italicised represent particularly problematic aspects of the April Conference although the notes must be read and considered as a whole, including in the context of the solicitor advocate seeking to discharge his statutory obligations of certification and compliance with the DDP’s Guidelines on prosecutorial conduct as well as objects under the Victims Rights and Support Act 2013 (NSW) (VRSA).

7. The notes as reproduced and annexed to these reasons contain numbered paragraphs for ease of reference and are divided into two columns: the first representing statements made by the solicitor advocate and the second containing, often in abbreviated form, the complainant’s response.

8. On appeal, although not necessarily before the primary judge, the Crown accepted that the manner in which the solicitor advocate conducted the April Conference was improper although it was not conceded that that conduct was deliberately improper. This qualification garners some support from a finding of the primary judge. Thus, having set out [43] of the April Conference notes, his Honour said:

“I do not think when he said this passage above that he was intending to coach her about ways in which she could make clearer her lack of consent or was, intending to get her to change her version, but it was a really reckless and not a very bright thing to do. To start telling a young complainant, who if her version was true, went through a highly traumatic and awful experience, and you are now essentially about to tell her that you do not think you want to proceed on the charge [be]cause the accused didn’t know she didn’t consent, requires skill and care. To start to then tell her how you normally prove it in other cases is in my view, a really dumb thing to do, and that is a deliberate word by me, because I just find it incredible that you would have taken such a risk to say those kinds of things.”

9. In another passage of his reasons, the primary judge said:

“To then be doing this [confirming an absence of verbal lack of consent] it is just at times hard to know why he was being so careless about this - again I am sure it was being done for an innocent purpose - but it is just so hard to understand why you would be going back to this aspect, even more so when she is already starting to express some concern about how this will be perceived if she makes another statement and what may happen about this. You risk it appearing and feeling like coaching – even if it is not.” (emphasis added)

10. Following the disclosure of the April Conference notes, the Applicants contended that the April Conference constituted impermissible coaching of a central prosecution witness, namely the complainant, with the consequence that the Applicants’ trial would be rendered unfair, and/or that to continue the prosecution would bring the administration of justice into disrepute.

11. The primary judge heard the stay application from 20-22 February 2023 and gave judgment on 23 February 2023. His Honour was profoundly critical of the conduct of the solicitor advocate, finding, amongst other matters, that he had “completely tipped off the complainant” as to evidentiary gaps in her first statement; “created a real deception” by the non-disclosure of the April Conference notes; and twice expressed the view that he did not think that there was a reasonable prospect of conviction of the Applicants in light of the conduct of the solicitor advocate.

12. It is relevant to note that his Honour was also profoundly critical of aspects of the practice of the ODPP and of aspects of the guidelines furnished by the Director of Public Prosecutions (the DPP) to Crown Prosecutors pursuant to s 13(1) of the Director of Public Prosecutions Act 1986 (NSW) (the Guidelines). I will return to these in more detail below. They provide important context to the present proceedings.

13. The primary judge also expressed the view on a number of occasions in his lengthy, ex tempore judgment, that there were “systematic” (by which it is assumed he meant “systemic”) problems in the ODPP. Although his Honour did not rely on this “finding” as part of his reasoning process, it will be necessary to make some observations in relation to these aspects of the primary judge’s reasons later in this judgment: see [100]-[101] below. The Applicants on appeal sought to marginalise the significance of the primary judge’s references to “systematic” problems with the DPP’s Guidelines whilst the Crown attacked the findings as unwarranted and not reasonably open on the evidence.

14. In relation to the broad complaint of witness coaching, the primary judge said:

“Looking at this matter another way - an observer of the criminal justice system I think would think this has a horrible look to it. Two young accused, facing serious charges, and a prosecutor comes along and basically says these are the problems, these are how we solved it in other cases and then she makes another statement that has those problems resolved in it - that is a really bad look.”

15. Notwithstanding strong (and justified) criticisms of what transpired in the April Conference including having “completely tipped off the complainant” as to evidentiary gaps in her first statement, the primary judge refused the application for a permanent stay of proceedings on the basis that his Honour considered that the Applicants could still receive a fair trial, largely because, in his Honour’s view, the jury at any trial would be capable of determining the complainant’s credibility and reliability, and because the Applicants had in fact, as a result of the disclosure of the April Conference notes, been armed with material, namely the April Conference notes, with which they could powerfully attack the recollection of the complainant and introduce doubt as to whether her recollection of events had been contaminated by her conference with the solicitor advocate. The primary judge referred to the accused as having, as a result of the disclosure of the April Conference notes and the two statements of CW, “all the ammunition”.

16. The essence of the primary judge’s reasoning was as follows:

1. The focus of the decision to grant a stay must be on the manner in which the Applicants’ case has been handled, not any systemic issues within the ODPP (which the primary judge controversially found were present, as noted above);

2. The Court has an inherent power to guard against abuse of its own processes, which can ground a stay of proceedings;

3. The power to issue a stay should not be used as a form of supervisory power over the ODPP nor are stays a form of punishment for improper conduct;

4. The personal involvement of the DPP meant that the Applicants would get a fair trial as all the relevant material leading to the production of the second statement, namely the April Conference notes, was available to the Applicants;

5. The complainant could be cross-examined as to the discrepancies between her statements, as the Applicants “now have all the ammunition”;

6. The Crown Prosecutor who was to run the matter at trial had indicated that she would not endorse the conduct of the solicitor advocate at trial nor would she seek a direction pursuant to s 293A of the Criminal Procedure Act 1986 (NSW) to the effect that it is common for there to be differences in accounts of a sexual offence;

7. The community expects those charged with serious sexual offending to be tried by jury; and

8. The “advocacy system” was sufficient to ensure a fair trial.

17. The primary judge did, however, grant a temporary stay, staying the matter until the Crown paid the Applicants’ costs thrown away by the Crown’s “behaviour in the trial”, pursuant to R v Yavuz (No 3) [2018] NSWSC 573.

17. By notices of appeal dated 9 March 2023, the Applicants seek leave to appeal, and ask this Court permanently to stay proceedings against them. Mr Walker SC, who appeared for AD, and whose oral submissions were adopted by Mr Wilson SC, who appeared for MA, accepted that the decision from which leave to appeal was sought involved the exercise of an ultimate discretion such that House v The King principles applied.

18. The following four grounds of appeal were advanced, with principal reliance in oral submissions being placed upon grounds 2 and 3:

1. The trial judge erred in concluding that the Applicants could have a fair trial;

2. The trial judge misunderstood one of the bases of the Applicants’ applications;

3. The trial judge erred in failing to consider whether the conduct of the prosecutor was such a departure from the conduct required of a prosecutor that to permit a trial to proceed in the light of it would bring the administration of justice into disrepute; and

4. The decision of the trial judge to refuse the application for a permanent stay was not reasonably open.

20. It is convenient, first, to identify the principles relevant to a grant of a stay of criminal proceedings. These were not in dispute between the parties.

Relevant principles

21. In La Rocca v R [2023] NSWCCA 45 (La Rocca) at [34], I summarised the principles relating to permanent stays of criminal proceedings. That summary was accepted by both parties and is as follows:

“(i)   the remedy is an extraordinary one, only to be given in exceptional or extreme circumstances: R v Glennon (1992) 173 CLR 592 at 605; [1992] HCA 16 (Glennon); Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [33]-[35] (Dupas); Strickland at [166];

(ii)   such a description recognises the powerful social imperative for those who are charged with criminal offences to be brought to trial: Strickland at [106], see also at [166]-[167], [262];

(iii)   notwithstanding this, the categories or circumstances in which the exceptional remedy of a permanent stay of criminal proceedings may be granted are not and should not be closed: Strickland at [99];

(iv)   there is no “definitive category” of extreme cases: Dupas at [35];

(v)   each case accordingly must be decided according to its own facts: Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti) at [60]; Strickland at [99], [246], [261];

(vi)   a permanent stay of criminal proceedings may be appropriate where to refuse such a remedy would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42; Moti at [10];

(vii)   the administration of justice may be brought into disrepute in a number of different ways;

(viii)   one example which may warrant a permanent stay is the toleration of an unfair trial where there is a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton v The Queen (1980) 147 CLR 75 at 111; [1980] HCA 48; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; [1989] HCA 46; Glennon at 605-606; Dupas at [35];

(ix)   other examples include where the manner in which the case was developed and brought:

•   was contrary to basic tenets of the Australian criminal justice system as may be embodied in statute: Strickland at [261], see also at [186]-[187];

•   was contrary to the rule of law: R v Horseferry Road Magistrates’ Court; ex parte Bennett [1994] 1 AC 42 at 62, 67; R v Grant [2009] 2 SCR 353 at [67];

•   was otherwise corrosive of the “trust reposed constitutionally in the courts”: Moti at [57]; or

•   presented a defect in process “so profound as to offend the integrity and functions of the court as such”: Strickland at [106].

(x)   considerations beyond the immediate trial may bear upon confidence in the administration of justice: Strickland at [270]; Ridgeway at 75, 77-78, 86-87, 92;

(xi)   the administration of justice may be brought into disrepute where a miscarriage of justice would be the result of a failure to grant a permanent stay of proceedings: Glennon at 616, 624;

(xii)   the administration of justice may be brought into disrepute irrespective of whether the conduct affecting proceedings is deliberate or reckless, and the grant of a permanent stay of proceedings is not confined to cases of deliberate and knowing misconduct nor dependent upon the initial motivation or purpose of the offending party: Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [135]; Strickland at [99];

(xiii)   the administration of justice will not necessarily be brought into disrepute, however, where prejudice to an accused may be cured by, for example, directions to a jury or undertakings by prosecuting authorities, or where the prejudice is of a minor or venial nature: Strickland at [100].”

22. Proposition (viii) recognises that mitigatory measures may be taken by a judge to negative or at least reduce any unfair prejudice that may otherwise arise. Moreover, as we live and work in an imperfect world, perfect justice is not always and may rarely be attainable although judges strive conscientiously to ensure that all trials and other proceedings occur in as fair an environment as possible. The High Court has spoken of “whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness”: R v Edwards (2009) 83 ALJR 717; [2009] HCA 20 at [23]. The notion of “unacceptable injustice” recognises that a fair trial is not to be equated with a perfect trial: see also Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [89].

23. In X7 v R [2014] NSWCCA 273; (2014) 246 A Crim R 402 at [92] (X7), Bathurst CJ made the point that:

“a stay will be ordered where there is a fundamental defect of such a nature that there is nothing a judge can do in the conduct of the trial to relieve against its unfair consequences. Implicit in that proposition is that it is necessary to identify both the fundamental defect and the unfair consequences. In that context, it is important to bear in mind that in considering what was said in Walton v Gardiner,the Court in R v Edwards emphasised at [22]-[23] the use of the words “would” be unfairly or unjustifiably oppressive as distinct from “could” be unfairly or unjustifiably oppressive.” (emphasis added)

24. In Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti), the Court said at [57] (omitting footnotes):

“two fundamental policy considerations affect abuse of process in criminal proceedings. First, “the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike”. Second, “unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice”. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements.”

25. In the course of argument, Mr Walker placed particular reliance upon the judgment of Keane J in Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 (Strickland) and the notion that the courts must be vigilant not to water down, permit or too readily seek to accommodate departures from rigorous standards of propriety that are expected of those who participate in our system of criminal justice. Such infractions, Mr Walker insisted, should not be “waved through”, using the language of Keane J at [107]:

“To condone such grossly negligent disregard of statutory protections and fundamental rights as occurred in these cases would be to encourage further negligent infractions of the strict statutory requirements of Div 2 of Pt II of the ACC Act and thus of the common law right to silence. In effect, it would be to imply that, short of intentional or advertent reckless disregard of the ACC Act, ACC officers might proceed however negligently in violation of the Act and the protections which it expressly affords to examinees, and therefore however much in violation of a suspect’s common law right to silence, confident in the knowledge that this Court would wave through the results on condition only that there be a change of prosecutorial team and such trial directions as it might be hoped would ameliorate the prejudice thereby caused to the persons whose statutory and common law rights have thus been abused. To allow the prosecutions of the appellants to proceed in these cases would so much bring the administration of justice into disrepute that the prosecutions should be stayed.”

26. The parties were agreed that, ultimately, a decision whether or not to grant a permanent stay of proceedings is heavily fact-specific. Not every prosecutorial impropriety will result in the drastic remedy of a permanent stay of a prosecution.

27. The parties were also broadly agreed as to the principles to be applied to determining whether the conduct of a lawyer, and in particular a prosecutor, had lapsed from permissible assistance into “coaching”. The starting point, in this regard, must be the rules regulating professional conduct.

28. Rules relating to the ethical and professional conduct of solicitors and barristers in terms of their interactions with witnesses or potential witnesses play an extremely important role in our legal system, and form part of the duties of legal professionals which are owed to the Court for the proper administration of justice in this State.

29. Thus, rule 24 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, entitled “Integrity of evidence—influencing evidence”, provides:

“24.1   A solicitor must not—

24.1.1   advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so, or

24.1.2   coach a witness by advising what answers the witness should give to questions which might be asked.

24.2   A solicitor will not have breached Rules 24.1 by—

24.2.1   expressing a general admonition to tell the truth,

24.2.2   questioning and testing in conference the version of evidence to be given by a prospective witness, or

24.2.3    drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but the solicitor must not encourage the witness to give evidence different from the evidence which the witness believes to be true.”

30. Rule 29 of the same rules relates specifically (and additionally) to prosecutors. That rule relevantly for present purposes requires a prosecutor fairly to assist the court to arrive at the truth, and to seek impartially to have the whole of the relevant evidence placed intelligibly before the court (r 29.1) and not to press the prosecution’s case for a conviction beyond a full and firm presentation of that case.

31. The Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers’ Rules) relevantly provide:

“69   Integrity of evidence

A barrister must not:

(a)   advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so, or

(b)   coach a witness by advising what answers the witness should give to questions which might be asked.”

32. Rule 70 provides that:

“A barrister does not breach rule 69 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.”

33. Propositions taken from the case law in relation to the coaching of witnesses relied upon by the Applicants included that:

1. “A solicitor or counsel does not advise the witness as to how to answer the question”: ReEquiticorp Finance Ltd; Ex parte Brock [No 2] (1992) 27 NSWLR 391 at 395 (Young J).

2. “The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations”: R v Momodou and Limani [2005] 2 Cr App R 6; [2005] EWCA Crim 177 at [61].

3. “If a prosecutor’s interview with the complainant goes beyond proofing to impermissible coaching, and the complainant’s evidence is fundamentally “tainted” through the session, this may undermine the ability of an accused person to have a fair trial”: Majinski v Western Australia [2013] WASCA 10; (2013) 226 A Crim R 552 at [35], and further at [40]: “The boundary of impropriety is … crossed if the course taken by the prosecutor has the effect of suggesting to the witness the evidence that should be given, either expressly or implicitly.”

4. “The duty not to engage in “coaching” is one of the duties owed to the court in light of the lawyer’s role as an independent advocate in an adversarial system”: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [111].

34. In Majinski, Martin CJ, with whom Buss JA and Mazza JA agreed, held that there was no evidence that any coaching had occurred, and rather it appeared that the complainant had simply volunteered particular information. Summarising relevant authorities, his Honour held (at [32]):

“Questioning of a witness moves beyond ‘proofing’ to impermissible ‘coaching’ when the witness’ true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness: HKSAR v Tse Tat Fung; R v Momodou. A solicitor or counsel should not advise a witness as to how to answer a question: Re Equiticorp Finance Ltd; Ex parte Brock. By way of example, in Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005) 62 NSWLR 731 the defendant’s solicitors prepared an extensive document for the defendant outlining ‘possible areas of questioning, (to be passed on to the respective witnesses)’ and included suggestions as to appropriate responses which would be in line with the defendant’s case [22]. This conduct, alongside the holding of a pre-trial conference by the practitioner in which multiple witnesses jointly discussed evidence to be given at trial, was held to seriously undermine the trial and ‘tainted’ the defendant’s case [182].”

35. His Honour then held, applying those principles to the case before the Court, (at [40]):

“However, consistently with the authorities to which I have referred, there is nothing improper in a prosecutor showing to a prospective witness the recording of an earlier interview with that witness. Nor is there anything improper in a prosecutor inviting a witness to comment or respond to questions upon aspects of the evidence that he or she is to give. The boundary of impropriety is only crossed if the course taken by the prosecutor has the effect of suggesting to the witness the evidence that should be given, either expressly or implicitly. Implicit suggestion can occur in a variety of ways, including by the asking of questions that are leading in substance or perhaps by placing inappropriate emphasis upon aspects of the evidence to be given, or perhaps by inappropriate repetition of the statements previously made by the witness, thereby implicitly suggesting that it was important for the witness to adhere to those statements. For the reasons I have given, there is no inference to be drawn from the prosecutor’s letter to the effect that the boundary was crossed during her meeting with the complainant (save in one respect to which I will refer) and there is direct evidence from the complainant to the contrary.”

36. His Honour then went on to hold that in showing the complainant a photograph of Mr Majinski, the prosecutor had acted inappropriately in circumstances where she ought to have been aware that the complainant had previously given a description of him that did not correspond with his true appearance. It was, to use Martin CJ’s words (at [41]), “fraught with the risk that the complainant would modify his description of the offender so as to correspond with that depicted in the photograph”, although that risk did not eventuate, and “the result [was] that defence counsel was able to take whatever advantage could be taken from the discrepancy between the complainant’s description of the offender, and the appearance of the appellant, in cross-examination and in submissions to the jury.”

37. In the course of argument on appeal, Mr Walker accepted that improper prosecutorial conduct may operate differentially, impacting the putative future trial to different degrees, thereby opening up the possibility that only a partial stay of proceedings may be appropriate. This concession, rightly and appropriately made in my view, was reflected in the following exchange:

“BELL CJ:   Mr Walker, I’m interested to hear your submission in response to this observation. What if the conceded improper conduct touched only one or some of the charges or touched one or some of the charges in a more profound or effective way than other charges? I mean, so it’s again a question of nuance and obviously there’s a question here because we have a series of charges and broadly, two events, one featuring the two defendants, one featuring one and arguably--

WALKER:   There’s an episodic view that’s been adopted in talking about this case up to now and it’s appropriate, where MA leaves and my client remains. So there’s one natural division. However, consent is obviously and belief as to consent, is obviously something which applies to both and throughout the whole. That doesn’t mean there may not be, what I might call, differential intensity of the forensic force of the state of the evidence before the improvement, the state of the evidence after the improvement differentially upon, perhaps even different accused but certainly different parts of the episode. We accept all of that in principle. What the Chief Justice has put to me is centrally part and parcel of the anxious consideration given by a court entertaining an application for a stay as to whether it does require the drastic remedy.”

38. Mr Walker also accepted that there may be degrees of prosecutorial impropriety, and the extent of any impropriety needs to be carefully analysed and weighed in any application for a stay of proceedings, whether on fairness grounds or to prevent the administration of justice being brought into disrepute.

39. Before turning to a closer analysis of the relevant facts and primary judgment, there are certain matters of statutory context which must be noted.

Statutory Context

Charge certification

40. The first relevant statutory provision concerns charge certification. Section 66 of the Criminal Procedure Act 1986 (NSW) provides as follows:

“66   Charge certificates

(1)    A charge certificate is a document in the form prescribed by the regulations and signed by the prosecutor that—

(a)   relates to the offences specified in a court attendance notice for the committal proceedings, and

(b)   specifies the offences that are to be the subject of the proceedings against the accused person, and

(c)   sets out the details of each of those offences in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment, and

(d)   specifies any back up or related offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166 (1) relating to charges against the accused person, and

(e)   if applicable, confirms that proceedings against the accused person for other specified offences are no longer being proceeded with, and

(f)   contains any other matters prescribed by the regulations for the purposes of this section.

(2)   The prosecutor must certify in the certificate that—

(a)   the evidence available to the prosecutor is capable of establishing each element of the offences that are to be the subject of the proceedings against the accused person, and

(b)   for an alleged offence for which there are duties of disclosure under the Director of Public Prosecutions Act 1986, section 15A—the prosecutor has received and considered verification of compliance about the duties, and

(c)   for an alleged offence for which there are duties of disclosure under section 36B—the prosecutor has received and considered verification of compliance about the duties.

(2A)   (Repealed)

(3)   Subsections (1) and (2) do not limit the matters that may be included by the regulations in the prescribed form of charge certificate.”

41. This procedure of charge certification replaced the previous procedure of committal by a Magistrate. That system, which operated until 30 April 2018, provided for a Magistrate to receive evidence and determine that there was a “a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence” (see s 64 of the Criminal Procedure Act 1986 as at 29 April 2018). If the Magistrate so determined, the Magistrate had to commit accused person for trial. Otherwise, the accused person was to be discharged.

42. Next, the VRSA contains, in Division 2 of Part 2, the Charter of Victims Rights. A “victim” is relevantly defined in s 5(1) as:

“For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence or in the course of conduct of a kind referred to in paragraph (b) of the definition of modern slavery in section 5 (1) of the Modern Slavery Act 2018.”

43. Section 6.1 of the VRSA provides:

“6.1   Courtesy, compassion and respect

A victim will be treated with courtesy, compassion, cultural sensitivity and respect for the victim’s rights and dignity.”

44. Section 6.5(1) of the VRSA provides that:

“A victim will be informed in a timely manner of the following—

…

(b)   any decision of the prosecution to modify or not to proceed with charges laid against the accused, including any decision to accept a plea of guilty by the accused to a less serious charge in return for a full discharge with respect to the other charges”

45. Section 6.5(2) of the VRSA provides:

“(2)   A victim will be consulted before a decision referred to in paragraph (b) above is taken if the accused has been charged with a serious crime that involves sexual violence or that results in actual bodily harm or psychological or psychiatric harm to the victim, unless—

(a)   the victim has indicated that he or she does not wish to be so consulted, or

(b)   the whereabouts of the victim cannot be ascertained after reasonable inquiry.”

DPP Guidelines

46. To be considered together with s 6.5 of the VRSA and s 66 of the Criminal Procedure Act are various prosecution guidelines issued by the Director of Public Prosecutions pursuant to s 13(1) of the Director of Public Prosecutions Act 1986 (NSW).

47. Guideline 5.4 provides that:

“5.4.   Information to be provided

Victims of crime must be given the following information in a timely manner, unless:

1.   they have indicated that they do not wish to be consulted (either specifically about such matters or generally) or

2.   their whereabouts cannot be ascertained after reasonable inquiry.

Information about the court process, the victim’s role as a witness and support services

• Information is contained on the ODPP’s website:

- about the charges

• The victim must be informed about the charges laid against the accused.

• The victim must be consulted prior to the prosecutor deciding:

- to substantially change the charges

- not to proceed with some or all of the charges

- to accept a plea to a less serious charge.

• The victim must be informed of any such decision prior to it being announced in court.

Information about bail

• The victim must be:

- notified whenever the accused applies for bail, including any application to vary the conditions of bail

- consulted about any need for protection they may have prior to the hearing of the bail application

- promptly informed of the outcome of any bail application, including any special bail conditions designed to protect the victim or the victim’s family.

Information about the date, time and location of court listings

• The prosecutor must inform the victim about the date, time and location of any mention or hearing of the case, including bail, committal, trial, sentence, appeal and breach of sentence hearing.

Information about the outcome of hearings

• The prosecutor must inform the victim about the outcome of any part of the proceedings, including bail, criminal case conference, committal, trial, sentence, appeals and breach of sentence.

Information about appeals

• If an appeal is lodged, the prosecutor must inform the victim about:

- the fact that an appeal has been lodged

- the type of appeal

- the appeal process and possible outcomes.

Information about breach of sentence

• If an offender is required to appear before a court in relation to a breach of sentence, the solicitor with carriage of those proceedings must inform the victim about:

- the fact that the offender is required to appear before the court for breaching the sentence

- the nature of the proceedings and possible outcomes.

Information about sexual assault communications privilege

• If access to a victim’s confidential counselling records is sought by the accused, the victim should be informed about legal advice and assistance available through the Sexual Assault Communications Privilege Service, Legal Aid NSW.

Information about the defence of mental illness, fitness inquiries and special hearings

• In all cases involving the defence of not guilty by reason of mental illness, the prosecutor must inform the victim about:

- what the defence of not guilty by reason of mental illness means

- how the evidence may be presented regarding the defence of mental illness

- the options available to the court if the accused is found not guilty by reason of mental illness

• In all cases where the accused’s fitness to be tried is raised, the prosecutor must inform the victim:

- of the date, time and location of any fitness hearing, special hearing, and hearing for the imposition of a penalty

- about the nature of fitness inquiries and special hearings.

Information about Victims Registers

• In all cases where an offender is sentenced to full-time detention or subject to a limiting term, the solicitor with carriage of the matter must provide the victim with contact details for the relevant Victims Register with Corrective Services, Juvenile Justice or the Forensic Division of the Mental Health Review Tribunal.”

48. Guideline 5.6, headed “Consultation, resolving charges, and discontinuing prosecutions”, provides that:

“The victim must be consulted prior to making any of the following decisions, unless they have expressed a desire not to be consulted or their whereabouts cannot be ascertained after reasonable inquiry:

1.   to substantially change the charges

2.   not to proceed with some or all of the charges

3.   to resolve the matter by accepting a plea to a less serious charge (see Chapter 4: Charge resolution).

Consultation with a victim regarding charge resolution requires an explanation of the full implications of proceeding on fewer or lesser charges, including:

1.   an explanation of the current charges and any proposed substitution of them

2.   a summary of the reasons why charge resolution is being considered

3.   the respective maximum penalties of the charges

4.   the impact of any charge resolution on the evidence to be presented on sentence, including the statement of agreed facts and any Victim Impact Statement

5.   where relevant, the implications of a matter being dealt with as a Form 1 offence.

In advising a victim of a possible discontinuance of all charges, a summary of the reasons why discontinuance is being considered should be provided.

Providing a summary of reasons does not constitute a waiver of legal privilege.

Victims must be given adequate time to form their views, having regard to the nature and urgency of the decision. This includes giving victims the opportunity to obtain assistance from a parent or carer (other than the accused) or a support person, before providing their views.

The views of the victim must be taken into account and given due consideration but are not determinative. It is the public interest, not any private individual or sectional interest, that must be served. The decision to proceed by way of charge resolution or to discontinue all charges rests with the Director or the Director’s delegate.

There are cases when the victim requests that proceedings be discontinued. This can occur in proceedings for domestic violence offences (see Guideline 5.9), non-domestic sexual assault offences and in other contexts. Careful consideration must be given to any request by a victim to discontinue proceedings in determining whether a prosecution is in the public interest, but other factors are also relevant, including where there is other evidence implicating the accused person, where there is a history of similar offending and the gravity of the alleged offence.”

49. Guideline 5.8, entitled “Conferences”, provides that:

“A conference with a victim or witness may be conducted for the following purposes:

1.   to obtain information from and about witnesses on evidentiary issues

2.   to explain the court process and other matters referred to in Guideline 5.4

3.   to consult victims as required under Chapter 4: Charge Resolution and Guideline 5.6.

Prosecutors, including a Crown Prosecutor where one is briefed, must confer with victims at the earliest available opportunity before all court hearings. Key witnesses should ordinarily be conferenced, but there may be occasions where this is undesirable. A WAS officer may be present for some conferences and should be consulted if there has been prior WAS involvement. The victim may also wish to have some other support person present during the conference.”

50. Also to be noted is Guideline 13.4 which relevantly states that:

“If a witness discloses information in a conference that warrants disclosure to the defence, as best practice, an arrangement should be made for the witness to make a supplementary statement with police, where practicable, which will then be disclosed to the defence.”

Warnings and directions

51. Pursuant to s 165(2) of the Evidence Act 1995 (NSW), it is open to a party to criminal proceedings to seek a warning to the jury from the trial judge as to the unreliability of certain evidence, informing the jury of why certain evidence may be unreliable. Subsections 165(2)-(5) provide that:

“(2)   If there is a jury and a party so requests, the judge is to:

(a)   warn the jury that the evidence may be unreliable; and

(b)   inform the jury of matters that may cause it to be unreliable; and

(c)   warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3)   The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4)   It is not necessary that a particular form of words be used in giving the warning or information.

(5)   This section does not affect any other power of the judge to give a warning to, or to inform, the jury.”

52. Section 293A of the Criminal Procedure Act 1986 (NSW) should also be noted. It provides:

“293A Direction may be given by Judge if differences in complainant’s account

(1)   This section applies if, on the trial of a person for a prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant’s account that may be relevant to the complainant’s truthfulness or reliability.

(2)   In circumstances to which this section applies, the Judge may direct the jury--

(a)   that experience shows--

(i)   people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and

(ii)   trauma may affect people differently, including affecting how they recall events, and

(iii)   it is common for there to be differences in accounts of a sexual offence, and

(iv)   both truthful and untruthful accounts of a sexual offence may contain differences, and

(b)   that it is up to the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.

(2A)   A judge may, as the judge sees fit--

(a)   give a direction in this section at any time during a trial, and

(b)   give the same direction on more than 1 occasion during a trial.

(3)   In this section “difference” in an account includes—

(a)   a gap in the account, and

(b)   an inconsistency in the account, and

(c)   a difference between the account and another account.”

53. As will be seen, the potential availability to the Applicants of a s 165 warning in respect of CW’s evidence and an undertaking by the Crown not to seek a s 293A direction in respect of CW’s evidence were advanced as potential mitigatory measures against any unfairness that may otherwise flow from the improper conduct of the solicitor advocate in coaching CW in the way that he did.

54. Against the background of this statutory context and legal principles, it is necessary to turn to the relevant forensic facts, namely the making of the first statement in March 2019, the April Conference in 2021, the making of the second statement and its ultimate disclosure.

The first statement

55. The complainant’s first statement was made on 18 March 2019. It was relatively brief, running to 29 paragraphs in just over four pages.

56. In it, CW described how, on 2 March 2019, then aged 17, she attended the Sydney Mardi Gras together with two friends, before travelling back to Parramatta from where one of her friends was to be picked up by her parents. CW had intended, at this point, to go home, but instead attended a room at the Skye Hotel after one of her friends was informed that there were a group of people there, some of whom she knew. Both MA and AD were there when CW arrived although she did not know them.

57. The complainant’s first statement recorded that she drank three “Coronas from the bottle” over about four hours. At about 1am, the first statement records that the complainant lay down on the floor “as everyone else was laying on the bed and lounges that were in the room”. The complainant then recalled asking MA for a hug with him then lying down next to her. AD lay down thereafter on her other side, leaving her “sandwiched”. MA was then said to have “got up and pulled [CW] by [her] arms up off the ground using both [her] hands” and that AD also got off the floor and both “pulled [CW] using [her] arms towards the bathroom.” CW said that she “felt like I was being dragged to the bathroom by my arms but I did not try and pull back.”

58. CW’s statement then recorded in four paragraphs that, once in the bathroom, she was subjected to a sustained course of sexual intercourse by MA and that “AD made me give him head”. It was these acts which gave rise to the two charges against each applicant of aggravated sexual assault. The first statement recorded CW’s feelings of being “panicked”, “very scared” and being “frozen”. She said:

“I remember the two of them talking whilst it was happening but I can not recall what was said. I noticed whilst we were in the bathroom that there was a sharp object that looked like half a pair of scissors placed on the bathroom vanity. I saw AD put it there as we came into the bathroom. They did not use the knife like item towards me but I felt that it was there to threaten me if required.”

59. CW recounted that after he had ejaculated, MA left the bathroom and that she was “allowed to stop performing head on AD”.

60. The statement then continued by describing what transpired between AD and the complainant after MA had left the bathroom. It is necessary to set that evidence out:

“At this time I was left in the bathroom with AD. He locked the door again as MA left and he turned the lights on. He made me sit on the toilet and made me suck his penis up and down with my mouth. He was not wearing a condom. I am unaware if he was circumcised or not. This continued for some time. He then stood me from the toilet and turned me around. He said, “Anal”. I said, “No that hurts, don’t do that.” He then forced his penis into my anus. I felt immense pain and kept saying “No, no”. AD kept forcing his penis into my anus. I said, “Stop.” I wiggled my bottom to get away from the pain and get it out. Then I sat on the toilet seat and demanded I give him head again. He said, “Give me more head.” I said, “I’m tired I want to go to sleep.” He said, “No, keep going.” As I was so frightened I sucked his penis some more. Then I stopped and I was still sitting on the toilet seat and he forced two fingers inside my vagina. He was very rough and his fingers hurt a lot. As he pulled his fingers out there was blood all over his fingers. I looked around me on the toilet seat and the seat was covered in blood. I begged, “Please go, so I can clean up.” Finally he opened the door and left me in the bathroom. He did not wear a condom.”

61. These alleged assaults formed the basis of the second set of counts made only against AD. One significant difference between CW’s account of her alleged assaults by AD after MA had left the bathroom, and the account of events before he had done so, is that it was only in the case of the former that, on her account, CW articulated verbally her opposition to what was occurring: “No that hurts, don’t do that”; “I… kept saying “No, no”; “I’m tired I want to go to sleep.”

62. The first statement did not record the communication of such verbal opposition to what had occurred when MA, AD and CW were in the bathroom together. As shall be seen, this was a difference of evident forensic concern to the solicitor advocate when he came to speak to CW more than 2 years later in April 2021, in particular in relation to the prosecution’s need to prove beyond reasonable doubt that not only was CW not consenting to the assaults but that this was known to the accused.

63. On the other hand, the first statement did record CW’s evidence that, after the alleged incidents, MA said, in the presence of CW and her friend who I will refer to as G, “Don’t report us, cause it’s six years in gaol”, to which CW says she said “It’s fine. Don’t worry.”

The laying of charges

64. On 17 October 2020, MA and AD were arrested and charged with one count each of aggravated sexual assault in company (contrary to s 61J of the Crimes Act).

65. On 11 January 2021, a partial brief of evidence was served on MA’s and AD’s respective representatives. The matter was adjourned in the Children’s Court on 15 January 2021 and 26 February 2021, and was listed for Charge Certification on 9 April 2021.

66. On 22 March 2021, a solicitor within the ODPP held a conference with CW, her support person, and a Witness Assistance Service Officer. A contemporaneous note records that the attendees discussed the DPP’s role, the nature of the criminal process generally, the giving of evidence, the role of cross-examination and the need to be prepared for it. The note also recorded the discussion of trial procedure, such as jury empanelment, directions and similar procedural matters, as well as what the complainant could expect in the lead-up to trial. The solicitor also foreshadowed that there would be likely to be further charges filed against both MA and AD.

67. In a question of some relevance, at the end of the meeting, CW’s support person (her boyfriend) asked a question, which is recorded, together with the answer, in the following terms:

“4. Coaching - can we do practice XXN based on the other evidence

• Firm no - already discussed - can prepare for type of questioning (e.g. suggestions etc) but not what they will ask.”

68. On 9 April 2021, the matter was adjourned to 23 April 2021.

The April Conference

69. The April Conference took place on 15 April 2021 and must be understood in the context of the statutory provisions set out at [40]-[50] above, and the obligations of charge certification and interactions with the victims of crimes or apparent crimes required by the Charter of Victims Rights. As the solicitor advocate said in evidence in chief on the application for a permanent stay of proceedings:

“Q.   What was the purpose of that conference?

A.   To meet with the complainant. I had not previously met the complainant the instructing solicitor and the solicitor with carriage and the witness assistance officer. So it was an opportunity for me to meet her. It was also an opportunity to explain the charges, discuss the charges and also give her some information about the prospect that charges may be terminated.

Q.   Why were you doing that?

A.   Because as a certifier, it was my responsibility to certify charges that I thought had reasonable prospects of success, and the charges that police had laid at that time I did not think or I was concerned that there wasn’t reasonable prospects of success and I wanted to make sure that if that was the decision that was going to be made, that I had the complainant’s views on taking that course.”

70. The solicitor advocate also expressed his understanding in his evidence in chief that “victims/complainants should be appraised of the charges that are being prosecuted and any decision or possible decision that charges may be changed or withdrawn. Also pursuant to the guidelines and pursuant to the delegations instrument - the DPP’s delegations instrument.”

71. Key features of the April Conference have been italicised in the record of the conference annexed to these reasons although the conference notes must be read as a whole. They disclose, and the primary judge accepted, that there was nothing objectionable about the way in which the Conference commenced and continued for some time. That is particularly so when the statutory context and associated obligations imposed on a charge certifier are appreciated.

72. However, as the Conference progressed, and no doubt in an attempt to respond meaningfully to CW’s questions, the bounds of propriety were crossed to some extent although, with one exception, no specific words were advanced by the solicitor advocate (SA) as to what CW could say. That exception is seen in [86]-[88] of the April Conference notes (with emphasis added):

“SA:   Jury has to think about their minds - and whether it was possible that they didn’t know you were consenting - then they get the benefit of the doubt.

CW:   Could I make another statement

SA:   You absolutely can - I can’t coach you on what to say-you do need to understand - if you make another statement

CW:   They’ll clash

SA:   It’s not that - if you’re adding things - XXN - they’ll say you added this to fix holes - all you can say is I’m trying to be honest.”

73. Although not a suggestion as to the use of actual words, the solicitor advocate’s suggestion that there “could be more physicality involved” and his suggestion that there “there might be more to it” ([56]-[57]) was powerful in the context of his discussion of evidentiary deficits. In that context, and without reproducing them but providing cross references to particular numbered paragraphs in the April Conference notes, the notes disclose the solicitor advocate explicitly explained to CW his concern about the prosecution’s ability (or inability) to prove that MA and AD knew that CW was not consenting from the outset ([45]; [51]; [52]; [55]; [79]; [82]; [83]; [85]-[86]) and that CW appreciated this: [52].

74. The solicitor advocate sought confirmation that there was no verbal communication as to lack of consent in relation to the events whilst all three were in the bathroom: [72]-[75]. The following exchange occurred:

“SA:   I might have asked you already- apart from what I’ve discussed with you - is it right for me to say that there was no verbal lack of consent? If you don’t remember for example saying no or I don’t want this

CW:   That didn’t happen - is that what you’re saying

SA:   You don’t say that in your statement - I don’t …

CW:   No, I know that would be wrong

SA:   - want you to. I’m not here to fill gaps

CW:   I know, objective”

75. The vice in the solicitor advocate’s words - “If you don’t remember for example saying ‘no’ or ‘I don’t want this’” – is that, in the context of his repeated statements of concern about an evidentiary deficit in relation to the events in the bathroom involving both MA and AD, his question was necessarily suggestive of words which might fill the critical evidentiary gap. It should be noted that the solicitor advocate, in fairness to him, said that he “didn’t want” her to be saying a particular matter and that he was “not here to fill gaps”. This was consistent with other aspects of the Conference where he said that he could not put words into CW’s mouth (eg [55]) and these references probably provide the basis for the primary judge’s finding that the solicitor advocate’s interaction with CW did not amount to intentional coaching: see [8]-[9] above.

76. Following the April Conference, on 16 April 2021, the solicitor who attended the April Conference sent an email to the police officer in charge of the investigation requesting that a further statement be taken from the complainant. That email was sent on 16 April 2021 in the following terms:

“I met with the complainant again yesterday along with the charge certifier, Tom Buckingham. Certain disclosures were made which require a further clarification statement.

Could you please obtain a further statement from the complainant regarding the following:

1.   The conversation between [CW] and the two accuseds in the bathroom about recording on the phone and [AD] not letting her see the phone

2.   The timing and description of [CW] wetting herself and the accuseds’ reaction to that.

3.   Any further detail [CW] could recall in relation to what the accuseds were saying in the bathroom.

Could you please also have [CW] review her first statement and add to/clarify any portion as she sees fit.

[CW] should also be asked to comment on why any new information in the further statement was not contained in her first statement. She may refer to the circumstances of the taking of the first statement. She told us about the difficulty she experienced at the time the first statement was taken, which may explain any inconsistencies or new details.

[CW] was asked whether her statement was accurate to the extent that she didn’t verbalise anything (during the sexual assault involving both males). She said: When I was making that statement, it was, I was at school, and it was just me and Elizabeth Hayes and it was two hours and I couldn’t really say much so she was just asking questions and I would slightly put things out as best I could b/c I couldn’t say anything b/c it was too hard to say it. That is probably the briefest point to point but there is so much more to each, especially at the end.

This is required urgently for charge certification. Please let me know if this cannot be served before next Thursday, 22 April 2021.

Thanks.”

77. This was followed by a further email sent on 20 April 2021 to the police:

“Could you please also ask [CW] whether she can explain what she meant when she said [AD] “made” her give him head (referring to the beginning of the incident). EG any physical actions by [AD] or words said to make her perform oral sex.

Thanks”

The second statement

78. A further four page statement by CW was prepared and signed on 21 April 2021.

79. The second statement indicated that CW wished to “change some things in it and add some details that I could not verbalise at the time.” It continued:

“After the assault, I was unable to express properly what had happened that night. I also cannot recall reading the statement properly when I was given the opportunity to read it. I found it difficult at the time to retain anything due to the trauma of the actual incident and I had also just found out that my mum was having an affair and was going to leave us and move to the country to be with the man. My dad also had a heart attack a week before this happened and just before I made the statement, what we thought was a drunken episode turned out to be actually a heart attack. At the time, I felt numb and disassociated from my mind and body. The whole statement is pretty much correct, but I need to add some details.”

80. In relation to that aspect of her first statement (para [14]) that involved MA, AD and the complainant, CW proffered the following additional information:

“the information is partially incorrect as I recall physically resisting, I remember being on the ground and grabbed by the lower half of my arms and physically pulled up from the ground by [MA], [AD] then was helping [MA] pull be to the bathroom. [MA] was pulling me by my arms and [AD] put his hand on the centre of my back from behind and was also pushing forwards. I do remember resisting the walk to the bathroom by pushing against them and trying to be a dead weight and pulling back resisting the walk towards the bathroom. I was aware of being pulled physically and not being able to pull back to resist them pulling me. I didn’t even want to get up from the ground let alone go into the bathroom. I recall saying before they got me up from the ground, “I am tired, I want to stay on the ground.” I did not want to get up. I do not recall a response other than being dragged to the bathroom by both.”

81. Significantly, this information addressed the important evidentiary gap about which the solicitor advocate had expressed concern in the April Conference. This is seen in two ways. The description of the move to the bathroom involves evidence of physical resistance which was not present in the first statement. It also includes CW saying: “I am tired, I want to stay on the ground” – words of opposition to being moved of a kind that did not appear in the first statement.

82. The second statement also described CW as having wet herself when standing up in the bathroom prior to the alleged assaults commencing, and this eliciting the comment from MA saying that that was “gross”. It was an added detail, however, that did not appear in the first statement and which was certainly capable of conveying fear and lack of consent to the circumstances in which CW found herself. It was capable of calling into question whether MA and AD could believe, on reasonable grounds, that CW was consenting.

83. The next aspect of the second statement involved CW elaborating on her statement that AD “made me give him head” which contained greater descriptive detail of AD’s physical and forceful movements of CW’s head in this context as well as the manner in which MA was assaulting her at the same time. CW also volunteered that she didn’t remember MA having a condom on which was in direct contradiction of something she had said in her first statement.

84. In relation to what transpired after MA had left the bathroom and AD and the complainant were alone, it will be recalled that the first statement did include CW stating on a number of occasions her opposition to anal sex: see [60] above. That statement had also included her recollection that AD had said “Anal” prior to CW saying “No that hurts. Don’t do that.” Her second statement contained an apparent inconsistency in that she said “I don’t recall AD asking for anal”. The full context of her expanded account in the second statement should be set out:

“I do recall the pain, but I also want to mention, I screamed as [AD] put his penis in my bottom. The scream was “a yell of pain”. I don’t recall [AD] asking for anal, but I recall I was standing in front of the mirror facing towards the mirror/vanity and [AD] was behind me, he put his two hands onto the upper part of my back and pushed me with force towards the sink. I recall my chest hitting the sink and I could see my face in the mirror when he put his penis in my bottom, I remember feeling immense pain and I screamed, and I could see my face screaming in the reflection. I remember finding my voice and screamed out “Stop” and “No” and that’s when I managed to wriggle free of him as mentioned in the original statement.”

85. An important aspect of this account is the intensification of CW’s verbal protest as compared to the first statement: see “I screamed”; “I remember finding my voice and screamed out “Stop” and “No”.”

86. The second statement also added detail about what transpired in the aftermath of the events in the bathroom. That account included the following additional detail:

“After cleaning up in the bathroom, I fixed up my clothing and walked out into the lounge room and sat down on the lounge. At the time I told [L] and [G’s] male friend. “I think I just got raped” and they were sitting next to me, I felt they were sitting next to me to protect me as the guys were still in the apartment.”

87. On 23 April 2021, the complainant’s second statement was served on both Applicants without any mention of the April Conference.

Listing of the trial

88. On 23 April 2021, the matter was adjourned to 30 April 2021, and the second statement was served on both MA and AD.

89. Also, on or about 23 April 2021, further counts were added to the existing single count against each applicant. Each separately alleged sexual act became the subject of a separate count, such that one further count (of aggravated sexual assault) was alleged against MA, while a further five counts were alleged against AD (one of which was of aggravated sexual assault, and four of which were of sexual assault), as noted at [2] above.

90. On 29 April 2021, the solicitor advocate certified the six counts specified on the indictment.

91. On 30 April 2021, the Children’s Court further adjourned proceedings so a case conference could occur. That was held on 9 June 2021, and on 9 July 2021, the matter was committed for trial to the District Court at Parramatta. On 6 August 2021, the matter was listed for trial on 15 August 2022.

Delayed disclosure of the second statement

92. On 9 August 2022, following a subpoena issued on behalf of AD, a redacted set of notes for the April Conference (redacted in part for asserted privilege) was served.

93. On 11 August 2022, the notice of motion seeking a permanent stay of proceedings was filed.

94. On 12 August 2022, a second version of the redacted notes of the April Conference was served on the Applicants. There were no changes to the redactions but a different method was used to identify the redactions.

95. On 15 August 2022, an unredacted copy of the notes of the April Conference was served on the Applicants.

The primary judgment

96. As noted earlier in these reasons, the primary judge found that the solicitor advocate had “tipped off” CW as to evidentiary gaps in her statement. The primary judgment was strongly critical of the manner in which the April Conference had been conducted and the subsequent delay in disclosure of the notes of the April Conference. That last point, had, however, been rectified by the time of the hearing of the stay application.

97. His Honour was particularly critical of certain of the DPP guidelines which the solicitor advocate had purported to follow and apply in his conference with CW. Thus his Honour said:

“I accepted during these arguments, and further endorse that concept now, that every accused has a fundamental right that the prosecuting authority has not tipped off witnesses or complainants to major weaknesses in their evidence with the danger that they will then improve that aspect of their evidence. That is a fundamental right they have, and yet Guideline 5.6 absolutely cuts against it when a DPP staff member follows it literally.”

98. Although the primary judge in terms found that Guideline 5.6 does not encourage coaching, he offered the strong view that it was responsible for what he described and found to be “systematic problems” within the ODPP, following a submission to this effect by Mr Wilson. He expressed the view that there was “a system that actually encourages tipping off of complainants who are the main witnesses to legal issues in the case”. Examples of his extended discussion of this matter included the following:

“I am well and truly satisfied that Mr Wilson SC has demonstrated a systematic problem in the DPP … because these problems have been shown to be fundamental to the Director’s guidelines as demonstrated and they effect just about every matter that goes through the office (because of EAGP and Super Call overs) and in particular sexual assaults where the complainant will be the fundamental evidence in most matters is nearing the majority of trials being conducted by the Director’s office – it is inevitable that this conduct is more widespread. The guidelines do not help the staff – there is no warning or caution in them.”

and:

“So why would a lawyer at Dubbo not do the exact same thing as Thomas Buckingham, follow the guidelines - Think they are doing the right thing by telling the complainant all their reasons because that is what they have been told to do. Actually let the complainant go away for a couple of weeks, discuss it with whoever they want and discuss all the problems the DPP have raised with them. That is what the guidelines actually want them to do, and then come back, potentially make another statement and change the whole matter, or not make another statement but the matter proceeds anyway because the lawyer who wanted it terminated gets rejected by the powers above and now it has changed the knowledge of the complainant forever. This is systematic tipping off of crucial witnesses which will often go undetected. Why would this tipping off not be happening right now at Dubbo, Lismore, Campbelltown, Parramatta, Penrith right now and Sydney. Why would I not find that, I do, it is inevitable.”

and:

“Why do you create guidelines that have the capacity to create the wrong thing to be done when with a few extra words you could help the staff not make a mistake? So it is a systematic problem in so many matters.”

99. Notwithstanding his Honour’s strong conclusions in this respect, he went on to say:

“While Mr Wilson SC has completely satisfied me that there is a systematic problem that infects many matters, and probably already has and will continue to do it, what role really do I have to stay a prosecution based on the Director’s overall performance in NSW as opposed to whether this individual trial can be conducted fairly. Do I have such a wide power? I do not think I do at all.”

100. Given his Honour’s (correct) conclusion in this last respect, the hyperbolic tone and wide ranging assertions about practice and systemic problems within the ODPP and the drafting of the Guidelines was, in my view, excessive and unhelpful. No doubt the Director will give careful attention to both this judgment and the Guidelines issued by Director Babb and, as his Honour subsequently noted, the issues he raised were “really more of a role for discussions by the Bar Association, the Public Defenders”.

101. There may be scope for some clarification and an injunction as to the need for special care to be taken when discharging a certifier’s statutory duty in accordance with the Guidelines. To express, however and as the primary judge did, broad ranging and sweeping conclusions as to the existence of systemic problems within the ODPP in this State on the basis of inference and extrapolation from one case and not on the basis of evidence or proper investigation, especially in circumstances where such a conclusion was not necessary (and as his Honour recognised, ultimately not relevant) for the purposes of the decision before him, was inappropriate.

100. After the primary judge had put this issue to one side, he properly turned to a consideration of the facts of the particular case before him in order to consider “whether in the circumstance of this particular matter things are so significantly distorted by what has occurred that the two accused cannot get a fair trial that it cannot be solved at the trial that a jury cannot see this matter for a lack of a better expression, warts and all and make sure a fair trial occurs”.

101. His Honour’s judgment proceeded on the basis that the Crown would not seek to endorse the propriety of the solicitor advocate’s pre-trial conduct in the course of the prosecution nor would a direction be sought pursuant to s 293A of the Criminal Procedure Act. That section, as has been seen, provides for a trial judge to direct a jury in relation to differences in a complainant’s account of events that may be relevant to the complainant’s truthfulness or reliability, in particular that experience shows that:

“(i)   people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and

(ii)   trauma may affect people differently, including affecting how they recall events, and

(iii)   it is common for there to be differences in accounts of a sexual offence, and

(iv)   both truthful and untruthful accounts of a sexual offence may contain differences”

and that it is up to the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability. His Honour expressed the view that “this is not a trial where the judicial endorsement of a change in the complainant’s statement should be given.”

104. Key aspects of his Honour’s dispositive reasoning were as follows:

“On one basis the Director’s involvement in this matter has leaned now strongly in favour of an ability for a fair trial to now actually be received, because all of it will be before a jury now. Any counsel for either accused, in the same way that Ms Hennessy cleverly did it in her submissions can absolutely significantly destroy the credibility of the complainant by showing how she firmed up in the precise way in many respects that Mr Buckingham seemingly pushed her towards, even if, I accept, unintentionally. Yes, the Crown will be able to counter with her initial complaint and let the jury decide it, and really that is what the criminal justice system generally provides for. …

It is difficult to see why it is that the two accused will not get a fair trial because they now have all the ammunition. They also now have the version of Mr Buckingham and his instructing solicitor that they have heard on the stay application. They do not need statements from them, they now know what they can say and they can move forward on it. …

I have been in this matter concerned always with the community’s wish, or the community’s general desire to see criminal trials decided by a jury. Here, that still is in my view the predominant way in which this matter should be resolved. Stays are not a punishment. If they were, I may stay it. The question fundamentally is can the two accused in the circumstances of this trial end up getting a fair trial. I believe they can. I believe that the exposure of Mr Buckingham’s behaviour before a jury, fairly dealt with by the Crown, can be understood by a jury. I believe that a jury is quite capable of effectively, to use Mr Campbell’s SC words, unscrambling the egg and figuring out whether her evidence, including her second statement, should be accepted as a truthful and reliable statement. I believe that the two accused are capable of testing that in an effective way before a jury. I think juries do an outstanding job and are well capable of assessing this aspect. …

The community expects prosecutors to be fair, honest, and give an accused a fair go. That is why juries are so good at what they do and I do not think they will like this at all, I do not like it and I have worked in the system my whole life. However not every flaw, not every error will result in a stay. I appreciate that the question of intent on Mr Buckingham’s behalf is only one aspect, but even if it was reckless, poor, negligent, while that could encompass a stay being granted, it does not mean it should get a stay. I am strongly of the belief that the advocacy system is robust enough to allow a fair trial in this proceeding despite the conduct of the Crown.”

Consideration

105. Notwithstanding the primary judge’s finding that that he did not think that there was a reasonable prospect of conviction of the Applicants (see [11] above), Mr Walker eschewed any reliance upon an argument that a permanent stay should be granted because the prosecutions were bound to fail. Rather, his very strong emphasis in oral submissions was on the fact that, to permit the trial of the Applicants to proceed would bring the administration of justice into disrepute because of the direct impact of the solicitor advocate’s coaching on the central prosecution witness, CW, coupled with the strong reliance on and trust reposed by the criminal justice system in prosecutors as critical agents in the fair and impartial administration of justice.

106. In this respect, the Applicants referred to Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13 at [63], as well as to Deane J’s well-known observations in Whitehorn v The Queen (1983) 152 CLR 657 at 663-664; [1983] HCA 42 about the special role of prosecutors in the administration of justice whereby a prosecutor:

“…will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.”

107. Deane J went on to note that some failures by prosecutors to meet proper standards will be insignificant; however, “on occasion”, a prosecutor’s failure to perform their function in accordance with the procedures and standards that the law requires may “so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial”.

108. On no view was the failure by the solicitor advocate to meet proper standards “insignificant” in the present case and there is obviously some correlation between the degree of egregiousness and centrality of the professional or ethical infraction and the impact on the fairness of any prosecution. The examination of the impact of the impropriety on the fairness of the proceedings is a necessarily nuanced exercise in every case. Some but not all infractions may be able to be mitigated, but the availability and efficacy of mitigatory measures will vary with the particular case.

109. At least in the context of assessing whether an accused will be deprived of a fair trial, considerations of whether a prosecutor’s misstep was deliberate, intentional or negligent or reckless are not so much to the point because the Court will look to the likely impact on the accused’s ability to obtain a fair trial. As explored below, questions of intentional or deliberate breach of prosecutorial standards may have a greater role to play when considering whether permitting a prosecution to go ahead would bring the administration of justice into disrepute. So much is consistent with the observations of Kiefel CJ, Bell and Nettle JJ in Strickland at [100], namely that, as a rule, “instances of deliberate or advertent reckless disregard of a duty or obligation … are conceived of as entailing greater moral culpability and for that reason their condonation is conceived of as more likely to bring the administration of justice into disrepute”.

110. The Applicants also invoked the observations of Finch J in Re Eldridge (1880) 82 NY 161 at 171 that:

“While a discreet and prudent attorney may very properly ascertain from witnesses in advance of the trial what they in fact do know, and the extent and limitations of their memory, as a guide to his own examinations, he has No right, legal or moral, to go further. His duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.”

111. Broadly speaking, the Applicants emphasised the centrality of CW’s evidence in the forthcoming prosecution, pointed to the force and potency, explicit and implicit, in the observations of the solicitor advocate to CW in the course of the April Conference; the primary judge’s finding that, even if not intentional or deliberate in any malign sense, the solicitor advocate’s conduct was at the very least reckless; stressed the discernible links or gap-filling in CW’s second statement which were referable to the April Conference; and noted the great difficulty that the Applicants would face in “unscrambling the egg” in any ultimate prosecution.

112. In answer, the Crown relied upon the primary judge’s reasoning as reproduced at [104] above and pointed to a number of mitigatory measures that could be taken by the ultimate trial judge to redress any unfairness to the Applicants.

113. On appeal, Mr Game SC, appearing for the Crown, made it clear that the Crown accepted (and would continue to accept for the purposes of any trial) that the solicitor advocate’s conduct during the April Conference had been improper, that the Crown would not seek a s 293A direction and would not resist a s 165(2) Evidence Act warning by the trial judge as to the possible unreliability of CW’s evidence in light of the admitted improper conduct. His only qualification in that regard was that the necessity for such a warning would depend upon the evidence CW ultimately gave. If it did not go beyond her first statement, it could not be said that her evidence had been contaminated by the interactions during the April Conference and thus no s 165 warning would be necessary. On the other hand, it seemed to be accepted that a warning would be appropriate if CW’s evidence at trial reflected any possible ‘contamination’ from the April Conference.

114. All of these matters relied upon by the Applicants in support of the stay of the prosecutions were powerful considerations but it was not suggested that the primary judge failed to take them into account in his assessment of whether or not the prosecution should be stayed because of the inability to obtain a fair trial. It remained necessary for the Applicants to demonstrate House v The King error.

Appeal ground 1 – unfairness of the trial

115. The first ground of appeal was that the trial judge erred in concluding that the Applicants could have a fair trial by taking a wrongly confined view of unfairness, it being submitted that the primary judge focussed on the question whether the evidence, in its final presentation, could be evaluated fairly by the jury to the exclusion of “intrinsic procedural unfairness that resulted from the circumstances of the prosecution”. In short it was put that the conduct of the solicitor advocate was “so incompatible with the role and duties of an independent prosecutor in our adversarial system of justice that it has altered the nature of the trial”.

116. The April Conference may have altered the way the trial was likely to proceed in a number of ways but that is not necessarily with the consequence that the trial will be rendered unfair: for example, the Crown indicated before the primary judge (and confirmed on appeal) that it would not seek a direction under s 293A of the Criminal Procedure Act during the trial, a matter that will only redound to the advantage of the Applicants; the solicitor advocate will not appear as counsel in the proceedings; defence counsel will have a basis in the April Conference notes to cross examine and attack the credibility and reliability of CW’s account of events that they would not otherwise have had. That also is a matter that will redound to the advantage rather than the disadvantage of the Applicants.

117. Mr Walker described this last matter as a “spurious advantage” in oral address but, with respect, it is difficult to accept this characterisation. In the event that CW goes beyond her first witness statement in her evidence in chief, the April Conference notes provide a basis for defence counsel to suggest to her that she was told about the weaknesses in her original statement on repeated occasions and has tailored her evidence as a result of the April Conference and the solicitor advocate’s suggestion to emphasise physicality and communicated opposition to what had (allegedly) transpired. Counsel would also be likely to draw upon and challenge CW with her statement that she wanted both of the Applicants to be charged and that, even if a verdict were to come in as a not guilty verdict, she wanted them to be charged with aggravated sexual assault: see April Conference notes [91]-[92]. Further, as pointed out at [83]-[84] above, aspects of CW’s second statement contradicted or arguably contradicted aspects of her first statement.

118. To the extent that the Applicants submitted that there was or would be “no forensic capacity to test [CW’s] evidence against other evidence”, this overlooked the fact that police also obtained a witness statement from CW’s friend, G, to whom she said certain things on coming out of the bathroom: see [121] below. To the extent that the Applicants criticised the primary judge for not formulating any judicial direction that could ameliorate the unfairness created by the solicitor advocate’s conduct, this is and would be a matter for the trial judge, with any direction to be crafted in light of the actual evidence that CW gave.

119. The key point to be noted, however, in relation to the first ground of appeal is that the primary judge did not take an unduly narrow view of conceptions of fairness or what was required in a fair trial. No error of law was established, and no other basis was established to impugn the primary judge’s exercise of discretion or to attack his Honour’s assessment that the Applicants would not be subjected to unacceptable unfairness in any trial, notwithstanding the solicitor advocate’s conduct. The first ground of appeal is not made out.

120. Even if there were some issue with the primary judge’s assessment in this regard, I would not have granted leave to appeal on this ground in light of Mr Game’s clear concession (which would be continued at trial) as to the impropriety of the solicitor advocate’s conduct, non-opposition to a s 165 warning being given (see [113] above) and indication that the Crown itself would not seek a s 293A direction from the trial judge. The particular significance of the first two matters is that the trial judge could provide reasons referable to the solicitor-advocate’s conceded improper conduct for any s 165 warning. It would then be for the jury, on a properly informed basis, to make an assessment to the criminal standard of the credibility and reliability of CW’s account of the events in question. The mitigatory effect of a s 165 warning would be reinforced, moreover, by the Crown agreeing not to seek any s 293A direction.

121. It should also be borne in mind that this is not a case where CW’s second statement was so different from her first as to work unfairness to the Applicants, and to deprive them of enjoying a fair trial. A number of points may be made. In her first statement, CW had said that, after she came from the bathroom, MA said to her in the presence of CW’s friend G, who had confronted him, “Don’t report us, cause it’s six years in gaol”, to which CW says she said “It’s fine. Don’t worry.” It would be open to the jury to consider whether, if accepted as having been made, this statement by MA provided a basis for concluding that he was conscious that he had committed an unlawful sexual assault to which CW had not consented. So also, CW said in her first statement that she had said to AD “No that hurts, don’t do that”; “I… kept saying “No, no”; “I’m tired I want to go to sleep.” This was evidence that a jury would need to assess in its deliberations even if CW’s evidence from her second statement was assessed as an unreliable amplification, encouraged by the solicitor advocate, and was the subject of a s 165 unreliability warning by the trial judge.

Appeal grounds 2 and 3 – bringing the administration of justice into disrepute

122. These two grounds were related. In effect, Mr Walker complained that the primary judge had not focussed sufficiently or at all on the alternative basis for the stay application, namely that to permit the prosecutions to proceed in light of the contamination of the complainant’s evidence would bring the administration of justice into disrepute.

123. Implicit in his argument was the proposition that, while permitting an unfair trial to go ahead would be an example of bringing the administration of justice into disrepute, the administration of justice could still be brought into disrepute even if measures were available to the trial judge to mitigate any degree of unfairness to a satisfactory extent. This point was made in Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42 and Moti at [10], as noted by Bathurst CJ in X7 at [93].

124. Mr Walker submitted that the primary judge failed to appreciate that arguments made (and accepted by him) as to “systematic” issues in the ODPP flowing principally from guideline 5.6 were deployed as a basis for showing that the administration of justice would be brought into disrepute on the facts of the present case, as opposed to more generally. As has been noted, the primary judge took the view that what he considered to be “systematic” issues in practice within the ODPP could not be used by him to found a stay of proceedings. It was submitted that this was to fail to apply his conclusions to the facts of the present case. There was force, in my view, in this criticism.

125. The primary judge did not separately consider whether to permit the prosecutions to proceed would bring the administration of justice into disrepute in light of the conduct of the solicitor advocate, and the likely contamination of CW’s evidence. Not to stay proceedings in the face of this conduct would be, in Mr Walker’s language, borrowing from that of Keane J in Strickland, to “wave through” the ethical infraction by the solicitor advocate in a way that would bring the administration of justice into disrepute.

126. While I would grant leave to appeal on these grounds and uphold them, in re-exercising the discretion of the Court, I do not consider that a stay should be granted on this separate, independent basis.

127. The reasons why, in my opinion, the administration of justice would not, in my opinion, be brought into disrepute if the prosecution of the Applicants were permitted to continue are as follows:

1. ex hypothesi, any trial that takes place would not be unfair to the Applicants for the reasons given by the primary judge and as reinforced in light of the greater clarification of the Crown’s position since the original stay application was heard, as noted at [120] above;

2. the unlawful conduct in the present case occurred prior to the commencement of proceedings in the District Court. That is not in any way to excuse or condone it but it did not involve an abuse of the Court’s processes as opposed to professional obligations of a practitioner;

3. the context of the April Conference was one that required the solicitor advocate, as a matter of statutory obligation, to explain to the complainant why he might not be able to certify the charges. That necessarily involved a discussion of her evidence and placed him in a difficult situation in which great care was required to be taken. Although the solicitor advocate obviously fell short in that regard, it may be inferred that he was genuinely seeking to discharge his statutory obligations but did so in a way which involved the impermissible crossing of the line as far as engaging with a prospective witness as to her evidence was concerned;

1. the conduct in question was not deliberate or intentional on the part of the solicitor advocate, and is in no way being condoned by the Court, as these reasons and those of the primary judge made clear: Strickland at [102]; X7 at [111];

2. to the extent that the solicitor advocate suggested a specific answer to potential cross-examination of CW if challenged as to departures from or additions to her first statement, namely “all you can say is “I’m trying to be honest”, such a response was not far removed from the permissible general admonition to tell the truth: see [29] above;

3. this was not a case of the solicitor advocate advising or suggesting to a witness that false or misleading evidence should be given, nor, to use the terms of rule 70 of the Barristers’ Rules, did it involve encouraging the witness to give evidence different from the evidence which the witness believed to be true;

4. the April Conference notes were disclosed on the direction of the Director herself, consistent with the professional and ethical obligations of the DPP;

5. the making of a second supplementary statement was consistent with the Director’s Guideline 13.4;

6. in declining a stay, the Court would be seen conscientiously to have sought to strike the appropriate balance between the need for criminal trials to be decided by a properly instructed jury whilst mitigating against any unfairness to the accused;

7. the credibility and reliability of the complainant, CW, will fall to be assessed by the jury and, to the extent that her account of events in the witness box departs from that given in her first statement, that account will no doubt be attacked by reference to CW’s interactions with the solicitor advocate during the April Conference. It will be for the jury to assess whether or not those interactions raise a reasonable doubt as to the integrity of her account. The jury will be performing its constitutional function;

8. in formulating a s 165 Evidence Act warning including the provision of reasons why some or parts of CW’s evidence may be unreliable, the trial judge would be reasonably expected to explain to the jury that the source of potential unreliability was conceded improper conduct at a pre-trial stage of a solicitor advocate in coaching CW, at least to the extent that evidence reflected in the second statement did not appear in an earlier, far more contemporaneous statement;

9. the Applicants will be permitted to cross-examine CW and to use the April Conference notes to challenge any additional or elaborated evidence that could be seen to be tied to the improper aspects of that conference;

10. the Crown’s concession that there had been improper conduct could be expected to be dealt with by appropriate regulatory bodies; and

11. this Court’s judgment (restricted until after the trial) will make it plain and publicly record the impropriety of the solicitor advocate’s conduct.

128. Bearing in mind these considerations and noting that a permanent stay of criminal proceedings is an exceptional remedy, I would not grant a stay of the proceedings on the basis that their continuation would bring the administration of justice into disrepute. I borrow the language of Gageler J in Strickland at [163] (albeit dissenting in the result):

“Neither in permitting the proceedings to continue nor in implementing procedural measures for the purpose of avoiding substantial unfairness in the conduct of those proceedings can the court seized of jurisdiction in the proceedings realistically be characterised as tolerating or excusing the unlawful conduct which has occurred. The effect of the unlawful conduct on the conduct of the proceedings, in my opinion, is not such as to undermine public confidence in the administration of justice by that or any other court.”

129. To pick up the language of Kiefel CJ, Bell and Nettle JJ in Strickland at [106], this is not a case in which there is a defect in process so profound as to offend the integrity and functions of the Court.

Ground 4

130. Having re-exercised the discretion, it is not necessary to address this ground.

Conclusion and orders

131. The orders of the Court should be:

1. Grant leave to appeal.

2. Appeal dismissed.

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.

   132. WARD P: I agree with Bell CJ.

   133. SWEENEY J: I agree with the orders proposed by the Chief Justice, and with his Honour’s reasons for those orders.

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Annexure to Judgment - MA v R; AD v R (186893, pdf)

Decision last updated: 15 April 2025