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McIver v The Queen

McIver v The Queen

Case [2019] NSWCCA 214 11 September 2019

Appeal

Interlocutory Orders

Judicial Review

Natural Justice & Procedural Fairness

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McIver v R [2019] NSWCCA 214
Hearing dates: 24 July 2019
Date of orders: 24 July 2019
Decision date: 11 September 2019
Before: Gleeson JA at [1]
Johnson J at [2]
Price J at [58]
Decision:
Leave to appeal under s.5F Criminal Appeal Act 1912 refused

Catchwords: CRIMINAL LAW – leave to appeal an interlocutory decision of District Court refusing permanent stay – trial for sexual offences allegedly committed over several decades ago – whether primary Judge erred in exercise of discretion – whether primary Judge focused unduly on public interest in conviction – whether primary Judge had regard to an irrelevant matter – whether primary Judge failed to have proper regard to directions to reduce forensic disadvantage to Applicant – open to primary Judge to refuse application – no House v The King error demonstrated – leave to appeal refused
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Evidence Act 2008 (Vic)
Cases Cited: Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
Hermanus (a Pseudonym) v R (2015) 44 VR 335; [2015] VSCA 2
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
R v Hatfield [1999] NSWCCA 340; R v Pike [2000] NSWCCA 347
R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399
R v McCarthy (NSWCCA, 12 August 1994, BC94070870)
R v WRC (2003) 59 NSWLR 273; [2003] NSWCCA 394
Shannon (A Pseudonym) v R [2019] VSCA 27
The Queen v Edwards (2009) 83 ALJR 717; [2009] HCA 20
TO v The Queen (2017) 265 A Crim R 191; [2017] NSWCCA 12
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Texts Cited: ---
Category: Principal judgment
Parties: John McIver (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr E Ozen SC (Applicant)
Mr D Patch (Respondent)
Solicitors:
O’Brien Solicitors (Applicant)
Solicitor for the Director of Public Prosecutions (Respondent)

File Number(s): 2016/326970; 2017/172183
Publication restriction: When judgment was given by the Court of Criminal Appeal on 11 September 2019, its publication was restricted until the trials of the Applicant were finalised. Following the delivery of R v McIver [2019] NSWDC 672, the judgment of the Court of Criminal Appeal has been published, identifying the Applicant.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

09 July 2019

Before:

Whitford SC DCJ

File Number(s):

2016/326970; 2017/172183

Judgment

GLEESON JA: My reasons for joining in the order made on 24 July 2019 accord with those of Johnson J.
JOHNSON J: The Applicant, John McIver, sought leave to appeal under s.5F Criminal Appeal Act 1912 against an interlocutory judgment of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McIver v The Queen

Details

AGLC: McIver v The Queen [2019] NSWCCA 214
Case: [2019] NSWCCA 214
Decision Date: 11 September 2019

CaseChat Overview and Summary

McIver v The Queen involved an application for leave to appeal against an interlocutory decision of the District Court which refused a permanent stay of proceedings against the applicant. The applicant faced a trial for sexual offences allegedly committed over several decades ago. The court was tasked with determining whether the primary judge erred in exercising the discretion to refuse the application for a permanent stay, particularly whether the primary judge unduly focused on the public interest in the conviction, whether the primary judge had regard to irrelevant matters, and whether the primary judge failed to properly consider directions aimed at reducing the forensic disadvantage faced by the applicant.

The legal issues revolved around the appropriate exercise of the primary judge's discretion in deciding the application for a permanent stay, the considerations that should guide such a decision, and whether the primary judge's decision demonstrated a clear error warranting leave to appeal. The applicant argued that the primary judge had misdirected themselves by focusing too heavily on the public interest in the conviction, had considered irrelevant matters, and had failed to sufficiently address the forensic disadvantage faced by the applicant.

The court found that the primary judge did not err in exercising their discretion. The court determined that it was open to the primary judge to refuse the application for a permanent stay, and that the considerations the primary judge had applied were appropriate. The court held that there was no indication that the primary judge had focused unduly on the public interest in the conviction, had considered irrelevant matters, or had failed to properly regard the forensic disadvantage to the applicant. The court also concluded that the primary judge's decision did not demonstrate a House v The King error, and therefore, the application for leave to appeal was refused.

The court's final orders were to refuse the application for leave to appeal the interlocutory decision of the District Court. The trial for the sexual offences would proceed as scheduled, without a permanent stay being granted to the applicant.

Orders