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 34Texts Cited: --- Category: Principal judgment Parties: John McIver (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr E Ozen SC (Applicant)
Mr D Patch (Respondent)
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…
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Details
- AGLC
- McIver v The Queen [2019] NSWCCA 214
- Case
- [2019] NSWCCA 214
- Decision Date
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.
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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