NSW Police v Mundall

[2022] NSWLC 4

Local Court

New South Wales

Medium Neutral Citation:

NSW Police v Mundall [2022] NSWLC 4

Hearing dates:

11 July 2022

Date of orders:

12 July 2022

Decision date:

12 July 2022

Jurisdiction:

Criminal

Before:

Nash LCM

Decision:

Accused’s application for a permanent stay of the proceedings dismissed. Costs reserved.

Catchwords:

Criminal procedure – Permanent stay of proceedings – Costs

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Evidence Act 1995 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27

Calleija v Regina [2012] NSWCCA 37

Darwiche v R [2011] NSWCCA 62

DPP v Shirvanian (1998) 44 NSWLR 129

Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20

Fields v Trustees of the Marist Brothers [2022] NSWSC 739

Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46

Moevao v Department of Labour [1980] 1 NZLR 464

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

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32

Petroulias v R [2007] NSWCCA 154

Police v Rankin; Police v Roberts [2013] NSWLC 25

R v Glennon (1992) 173 CLR 592; [1992] HCA 16

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

NSW Police (Prosecutor)
Marcus Mundall (Defendant)

Representation:

Counsel:
Mr John McKenzie, Barrister
(Defendant)

Solicitors:
Sgt Pullen (Prosecutor)
Tasdemir Lawyers (Defendant)

File Number(s):

2020/00318251

Publication restriction:

Nil

EX TEMPORE Judgment

1. These are my ex tempore reasons in the matter of Marcus Mundall. Mr Mundall is the accused person in respect of 30 charges brought in the matter with H number reference H76321004.

2. Before the court is the accused’s application for a permanent stay of the criminal prosecution proceedings brought against him. I heard this application yesterday on what would have been the first day of the 3 day hearing of this matter. The court vacated the hearing of the matter on 7 June 2022 on the prosecutor’s application, over objection from the accused, and I maintained the first day of the hearing for the purposes of hearing the current permanent stay application. Once I had vacated the hearing, I arranged for other matters, including a hearing, to be listed yesterday. Due to the volume of work, it was not reasonably possible to give my decisions and deliver my reasons on this application yesterday, and so I stood the matter over to today.

3. I also note that the accused also seeks his costs arising from the previously vacated hearings in this matter, and I will address this further below.

A.   BACKGROUND

4. The permanent stay application arises in the following circumstances, which demonstrate that the matter has had somewhat of a lengthy and chequered history.

5. The matter first came before the court on 23 November 2020, at which time pleas of ‘not guilty’ were entered in relation to the charges which had, at that time, been brought against the accused, being sequences 1 to 3. Those sequences are:

Sequence

Charge

1

Sexually touch another person without consent

(s 61KC(a) Crimes Act 1900 (NSW))

2

Common assault

(s 61 Crimes Act 1900)

3

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW))

6. Each of these sequences relates to events alleged to have occurred on 7 November 2020 in Kundabung.

7. The matter was listed for reply to brief on 11 January 2021 (with an intervening mention on 14 December 2020 for a bail variation). On 11 January 2021, the matter was set down for hearing on 16 and 18 June 2021. A pre-trial mention also occurred on 7 May 2021 but apparently no application to vacate the hearing was foreshadowed at that time.

8. On 19 May 2021, the hearing then scheduled for 16 and 18 June 2021 was vacated on the prosecutor’s application. The accused did not oppose the application. The application had been brought on the basis that the officer in charge, being Detective Welsh, was on sick leave, and due to what were described as outstanding issues concerning tendency evidence. The matter was listed for mention on 21 June 2021, and on that day, it was given new hearing dates being 12 and 14 January 2022. There were further intervening mentions on 9 July 2021 and 30 July 2021 for bail variations.

9. The matter next came before the court on 22 December 2021. The prosecutor brought an application to vacate the hearing then listed for 12 and 14 January 2022. This was because the officer in charge remained on sick leave and the new officer of charge, Senior Constable Kennedy, who had assumed the position from Detective Welsh, was on annual leave at the time of the proposed hearing. The accused opposed that application and it was refused. The hearing dates of 12 and 14 January 2022 were confirmed.

10. The matter then came before the court on 12 January 2022, being day 1 of the proposed hearing. On that day, Chief Magistrate’s Memorandum No. 25 dated 7 January 2022 was in force which required all hearings in the Local Court in NSW to be vacated and re-listed on a future date, due to the Covid-19 pandemic. Accordingly, orders were made vacating the hearing, and the matter was then listed for 3 days commencing 11 July 2022. On 12 January 2022, it was confirmed that tendency material under the Evidence Act 1995 (NSW) had been served and that the original 2 day estimate was not sufficient to see the matter completed, hence why a third day was allocated.

11. The matter then came before the court on 7 June 2022. On that day, the prosecutor made a further application to vacate the hearing which had been set down for 11 to 13 July 2022, inclusive. Over the accused’s objection, the hearing was vacated. The application arose in circumstances where, because a new officer in charge had been appointed in the matter, 27 fresh charges were laid against the accused, with the previous 2 officers in charge, being Detective Welsh and Senior Constable Kennedy, having now left the police force. The 27 new charges comprised sequences 4 – 30 (inclusive) in H76321004. Those sequences are:

Sequence

Charge

4

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

5

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

6

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

7

Sexually touch another person without consent

(s 61KC(a) Crimes Act 1900)

8

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

9

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

10

Sexually touch another person without consent

(s 61KC(a) Crimes Act 1900)

11

Sexually touch another person without consent

(s 61KC(a) Crimes Act 1900)

12

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

13

Common assault

(s 61 Crimes Act 1900)

14

Sexually touch another person without consent

(s 61KC(a) Crimes Act 1900)

15

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

16

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

17

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

18

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

19

Common assault

(s 61 Crimes Act 1900)

20

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

21

Assault occasioning actual bodily harm

(s 59 Crimes Act 1900)

22

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

23

Common assault

(s 61 Crimes Act 1900)

24

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

25

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

26

Common assault

(s 61 Crimes Act 1900)

27

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

28

Sexually touch another person without consent

(s 61KC(a) Crimes Act 1900)

29

Stalk/intimidate intending to cause fear of physical or mental harm

(s 13 Crimes (Domestic and Personal Violence) Act 2007)

30

Common assault

(s 61 Crimes Act 1900)

12. Each of the incidents the subject of these charges is alleged to have occurred on various dates throughout 2019 and 2020, in Kundabung.

13. These additional charges were laid on 3 June 2022 and a ‘not guilty’ plea was entered on 7 June 2022. These further charges were brought because of a 41-page statement that had been taken from the complainant, which had been served on the accused on or about 3 June 2022. A new tendency notice was also served on the accused under the Evidence Act 1995. I note that, except for sequence 21, the complainant in respect of each charge is the same person, who I have deliberately not identified by name in these reasons. Accordingly, for convenience, I will simply refer to the single ‘complainant’, as this does not affect the analysis or ultimate outcome of the application.

14. Accordingly, because of the new charges, it was agreed that 3 days would not be sufficient to complete the hearing of the matter.

15. The application for the permanent stay was foreshadowed at the mention on 7 June 2022. The accused argued that the 3 original sequences should be dismissed and indicated a permanent stay application would be made in respect of the 27 additional charges. Alternatively, the accused argued that if the 3 original sequences were not dismissed, a permanent stay should be ordered in relation to all sequences. The accused argued that this was in circumstances where the new additional charges, being sequences 4 to 30, do not themselves arise out of the same incident the subject of sequences 1 to 3.

16. On 7 June 2022, as I explained, I vacated the hearing of the proceedings and made directions for the hearing of the stay application, which would have been the first day of the 3-day hearing of the matter.

17. No objection was taken to the matter being determined in this way, namely, in the absence of a filed or formal written motion.

18. At the hearing of the stay application yesterday, the parties made competing submissions. For the record, the prosecutor, not surprisingly, opposed an order permanently staying the proceedings.

19. Before I turn to the permanent stay application, I should address the application that sequences 1 to 3 should be dismissed independently of the outcome of the stay application. As I outlined earlier, this application is made because, the accused argued, but for the intervention of Covid-19 and the then applicable Chief Magistrate’s Memorandum, the hearing of those 3 sequences would have otherwise proceeded on 12 January 2022 and would likely have been dismissed as neither of the previous informants would have given evidence, and would not have been ‘unavailable’ for the purposes of the Evidence Act 1995. Further, reference is made to the fact that frequently witnesses do not attend court for the hearing of a matter, with the consequence the matter is then dismissed, and that this is a particularly common occurrence in domestic violence matters.

20. I do not consider it would be appropriate that the court dismiss sequences 1 to 3 regardless of the outcome of the permanent stay application. It is true, as the accused observed, that there was a possibility that, at the July 2022 hearing, evidence from a police informant may not have been available in the prosecution case, with the consequence that they could not be cross examined or the matter could not proceed. However, it is hypothetical what might have happened at the hearing in July 2022 if the matter had proceeded to hearing on sequences 1 to 3. I do not consider that dismissal of the charges was a fait accompli in those circumstances. It would therefore not be appropriate to hypothesise any further about what might have happened if a hearing on sequences 1 to 3 had occurred independently of sequences 4 to 30. Accordingly, I do not consider that an order for the dismissal of sequences 1 to 3 should be made.

B.   APPLICATION FOR PERMANENT STAY OF PROCEEDINGS

21. I now turn to the permanent stay application. The basis on which the accused brings his application is as follows:

1. First, the excessive delay in the matter, including that it will likely be more than 2 years from commencement of the proceedings to their final determination at a hearing;

2. Secondly, the accused is not responsible for any delay;

3. Thirdly, the new charges arise from the preparation of evidence in support of a tendency argument, and they have very low prospects of success;

4. Fourthly, the alleged offending is at the lower end of objective seriousness, and in many instances is trivial in nature, such that on a finding of guilt, a community-based order is the likely outcome;

5. Fifthly, the complainant is using these proceedings to take revenge on the breakdown of her marriage with the accused;

6. Sixthly, the complainant is not a credible witness;

7. Seventhly, the accused has suffered from, is suffering from, and will continue to suffer from, extreme financial hardship because he is not entitled to Legal Aid and is self-funding his defence. He estimates his total costs will be approximately $60,000 ($20,000 of which has already been spent, with a further $40,000 in costs anticipated). This is in circumstances where the complainant knows the accused does not have sufficient funds for his defence;

8. Eighthly, the complainant has denied the accused access to his 5 children since 7 November 2020 and has said he cannot see them until the criminal charges are dealt with. In this respect, although the current AVO for the protection of the complainant is in terms of conditions 1, 6(A) & (B), 9, 10 and 11, there are also delays in bringing Family Law proceedings to obtain access to his children;

9. Ninthly, the accused is a pastor with the Seventh Day Adventist Church. He has not been permitted to participate in any of their congregations and has become unemployed. He is now working as a labourer, and has lost the use of church premises for his ongoing accommodation due to fresh charges having been brought; and

10. Tenthly, there is a prospect that proceedings might be further adjourned in the future, given their history to date.

22. I now turn to the legal principles on which this application must be determined. These were not in dispute. The accused cited the decisions in Fields v Trustees of the Marist Brothers [2022] NSWSC 739 and Moubarak by his tutor Coorey v Holt [2019] NSWCA 102.

23. I also note the decision of the Court of Criminal Appeal in Calleija v Regina [2012] NSWCCA 37 at [28] – [36], which said:

28 It is well established that the grant of a permanent stay of criminal proceedings is one that should be ordered only in an extreme case. The central principle governing the granting of a stay was stated by Mason CJ in Jago v District Court of NSW, at 34, in the following terms:

"To justify a permanent stay of criminal proceedings, there must be 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'." (citation omitted)

29 Mason CJ considered that underlying the power of the court to grant a permanent stay was the court's inherent jurisdiction to prevent abuses of process. In this regard, his Honour adopted the reasoning of Richardson J in Moevao v Department of Labour (1980) 1 NZLR 464 at 482, where his Honour stated:

"It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."

30 Mason CJ had noted, at 33, that "the touchstone in every case is fairness". His Honour pointed out that the relevant test of fairness involved a balancing process having regard to the interests of the accused, as well as the community's right to expect that persons charged with criminal offences are brought to trial. In this regard, an essential consideration in the balancing exercise is the need to maintain public confidence in the administration of justice: see Walton v Gardiner [1993] HCA 77; 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 395-396. See also Petroulias v R [2007] NSWCCA 154; 176 A Crim R 302 per Ipp JA at [17].

31 In Moti v The Queen [2011] HCA 50; 283 ALR 393 the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) identified three basic considerations necessary to determine before making a decision as to abuse of process. Their Honours observed, at [57]:

"The third basic proposition is that, as pointed out in the joint reasons of four members of this Court in Williams v Spautz, 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." (citations omitted)

32 In Australia the common law has not recognised the existence of a right to a speedy trial, or even to a trial within a reasonable time based upon any concept of presumptive prejudice. However, there may be circumstances when delay is such that a permanent stay should be granted. When the question of delay is in issue, matters that need to be considered include the length of the delay, the reasons for it, the accused's responsibility for asserting his or her rights and any prejudice suffered by the accused. However, even when those factors are taken into account, "a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will ... be very rare": per Mason CJ in Jago at 34. In Jago, Mason CJ observed at 33:

"Because there is no constitutional guarantee of a speedy trial, the remedies are discretionary and necessarily relate to the harm suffered or likely to be suffered if appropriate orders are not made."

33 In Jago Brennan J, at 47, commented upon the obstacles to a fair trial that are often encountered in the administration of criminal justice, such as adverse publicity, witnesses becoming unavailable and the lack of competent representation. His Honour observed, however, that those matters did not give rise to the need for proceedings to be permanently stayed. As his Honour noted, "[u]nfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness". When an obstacle to a fair trial occurs, a trial judge has the responsibility to the parties to avoid the unfairness. However, that responsibility was not discharged by the court refusing to exercise jurisdiction. Rather, it was the trial judge's responsibility to control the procedures of the trial so as to ensure that the trial was ultimately fair.

34 Brennan J also acknowledged, at 47, that "[m]ore radical remedies may be needed to prevent an abuse of process". His Honour then defined an "abuse of process" as occurring when:

"... the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process."

35 The category of case in which a stay may be granted is not closed. In Walton v Gardiner at 392-393, Mason CJ, Deane and Dawson JJ, in the context of an application for a stay of civil proceedings, observed that the court has jurisdiction to grant a stay where its processes and procedures are converted into instruments of injustice or unfairness contrary to their intended purpose of administering justice with fairness and impartiality. Their Honours stated that the categories of cases where a stay may be granted included proceedings which were doomed to failure and the employment of the court's processes in a manner which gave rise to unfairness. Their Honours rejected the notion that a permanent stay may only be ordered where an improper purpose was established or there was no possibility of a fair trial: see Williams v Spautz [1992] HCA 34; 174 CLR 509 at 519-520.

36 These principles were confirmed by the High Court in Dupas v The Queen [2010] HCA 20; 241 CLR 237. The Court confirmed, at 250, [35], that there was "no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered": see R v Glennon [1992] HCA 16; 173 CLR 592. Their Honours reconfirmed the need to consider, in the balance, the substantial public interest in having those charged with criminal offences brought to trial. As the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) had stated in Williams v Spautz, the confidence in the proper administration of justice requires that the court protect its ability to function as a court of law by ensuring the processes are used fairly by State and citizen alike. In Dupas, the Court, at 251, [37], characterised a permanent stay as "tantamount to a continuing immunity from prosecution". It followed that fairness to the accused alone was not the only relevant consideration when determining whether a trial should proceed. Rather, the Court pointed out that the decision whether to prosecute requires an evaluation of the particular circumstances of the case weighed in the context of a number of public interest considerations including public confidence in the administration of justice: see Walton v Gardiner at 395-396; Dupas at 251, [37]; Darwiche v R [2011] NSWCCA 62 at [172].

24. I also note paragraph [71] of the Moubarak decision, which says:

71 From a brace of decisions of the High Court between 1989 and 2006 (Jago; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 (Spautz); Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (Walton); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos)), the following uncontroversial propositions may be derived:

(1) The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ);

(2) A permanent stay should only be ordered in exceptional circumstances: Jago at 31 (per Mason CJ), 76 (per Gaudron J); Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ); Walton at 388 (per Mason CJ, Deane and Dawson JJ);

(3) A permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (per Mason CJ), 74 (Gaudron J); Spautz at 520 (per Mason CJ, Dawson, Toohey and McHugh JJ); Batistatos at [12] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);

(4) The categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (per Gaudron J); Batistatos at [9] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);

(5) One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive: Jago at 74 (per Gaudron J); Walton at 393 (per Mason CJ, Deane and Dawson JJ);

(6) The continuation of proceedings may be oppressive if that is their objective effect: Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);

(7) Proceedings may be oppressive where their effect is “seriously and unfairly burdensome, prejudicial or damaging”: Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 at 247 (per Deane J);[1988] HCA 32 cited in Jago at 74 (per Gaudron J); Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);

(8) Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); and

(9) Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ).

25. As to the Local Court’s power to order a permanent stay, see par [32] in Police v Rankin; Police v Roberts [2013] NSWLC 25, citing the decision in DPP v Shirvanian (1998) 44 NSWLR 129 at 135 per Mason J. There was no dispute as to the court’s power to make an order permanently staying the proceedings, and I proceed on that basis.

26. As the court observed in Calleija at [35], the category of case in which a stay may be granted is not closed. I also note the thrust of the various authorities that a permanent stay should only be ordered in exceptional circumstances, and that the power to order a permanent stay is best expressed as an incident of the general power of a court to ensure fairness.

C.    FINDINGS

27. On any reasonable view, the procedural history of this matter is highly regrettable and the accused would have well founded frustration about the delay that has occurred. On my calculation, there were 557 days between 23 November 2020, when the proceedings were commenced, and 3 June 2022, when the 41 page statement from the complainant was served. This obviously is an inordinately lengthy delay, and appears to be linked to the change in personnel overseeing the prosecution, leading to different decisions about what charges would be laid against the accused. In other words, the accused is a person against whom criminal charges have been brought, and which have now been pending since 23 November 2020, without any resolution. The further delay in the hearing of the matter was as a direct consequence of the prosecutor bringing 27 new charges due to the new officer in charge taking and preparing the 41-page statement from the complainant to which I have earlier referred.

28. An essential consideration in the balancing exercise is the need to maintain public confidence in the administration of justice. Further, a permanent stay should only be ordered in an exceptional case, with the overriding consideration being one of fairness.

29. As to delay, I accept the delay is excessive, and that by the time the matter is heard, some 2 years is likely to have elapsed, with none of that delay caused by any action or inaction on the part of the accused. I note that approximately 6 months of the delay is due to the matter being vacated because of the Covid-19 pandemic, however I accept that even 18 months delay is also excessive. Although excessive, I do not consider that this delay is sufficient alone to justify a permanent stay, but rather should be considered with any other identified factors or circumstances. The delay is not so inordinate such as to demonstrate that this matter is in a special or exceptional class of matters relative to other matters awaiting a hearing.

30. As to the prosecutor’s prospects of proving the offences beyond reasonable doubt, I consider that, given the absence of detailed information concerning the charges and the fact the complainant’s evidence has not been tested in any way on this application, it is very difficult to give this factor any weight. I therefore consider the question of the prospects of the prosecution case as something that will and should be resolved at the final hearing and cannot have any bearing on the outcome of the present application in the circumstances.

31. As to the nature of the alleged offences, again on this application, information about the allegations is limited to the articulation of the charges in the various court attendances notices. That the offences, or many of them, may be trivial or at the lower end of objective seriousness, would be relevant at the time of sentencing, rather than proof of guilt or otherwise, and so I consider this is also a matter which can be afforded very little weight on the application.

32. As to the complainant’s motivations in making the allegations against the accused, again this is a matter to which I cannot afford any weight because they are untested assertions and are properly matters for the final hearing, including as to the complainant’s overall credibility as a witness.

33. As to the accused’s financial hardship, I accept that this is relevant and should be afforded some weight, particularly in the context of the delay in the hearing of the matter. The estimated costs are high, and indeed criminal prosecution proceedings which might occupy up to 5 days or possibly more are likely to be expensive. Again, as with delay, given that this is a common feature in criminal proceedings, although the estimated costs are relatively high, I do not consider this can be given determinative weight alone and should be assessed in the context of other factors and considerations on the application.

34. As to the complainant’s refusal to provide the accused with access to his children, I note the accused is at least theoretically able to take legal steps or action to re-establish contact with his children. Any application to lift a prohibition or restriction on an AVO in this respect which may currently prevent this from occurring can and will be dealt with on its merits, as would, I must assume, any proceedings commenced in the Family Law context in relation to contact with children. If such orders were to be made in his favour, enforcement action could then be taken if he were frustrated in pursuing such endeavours.

35. As to the effect on the accused’s participation and employment with the Seventh Day Adventist Church and his loss of use of their accommodation, I accept this is a consequence of the nature and volume of the charges themselves. The fact is that the charges have been brought and they may or may not have any substance. I do not consider that this fact alone would therefore be sufficient to justify a permanent stay of the proceedings.

36. As to the prospects that the proceedings might be further adjourned, given their history, I consider that this is hypothetical and that any further applications to adjourn the proceedings or vacate the hearing would be assessed on their merits.

37. It will be apparent from my reasons that I have not found that any particular ground relied upon for a permanent stay is sufficient alone to justify the court taking that course. I have therefore also considered whether the combination of the identified factors and considerations, rather than looking at them only individually, is sufficient to justify a permanent stay of the proceedings.

38. Ultimately, this is a matter which I consider comes close to, but is short of, the circumstances that may justify an order permanently stay of the prosecution.

39. I do not consider that the continuation of the proceedings, at the present time, would bring the administration of justice into disrepute and they are not manifestly unfair or oppressive to the accused in the proper sense of those words. I accept he is suffering significant hardship as I have outlined, and the prosecutor did not cavil with the various factual assertions which the accused relied upon in bringing this application. But the test on this application is whether there are exceptional circumstances, which is a very high threshold to overcome, and the interests of the administration of justice do not, at present, demand a permanent stay of the proceedings.

40. In this respect, I am also mindful of the public interest in the determination of the charges on their merits, and at least on face value, the serious nature of the charges. I note that the court has not been privy to the precise nature of the allegations, and I readily accept that there can be instances in which conduct that might sustain proof the charges is trivial or at the much lower end of objective seriousness.

41. The conclusions I have made on this application may not be the same if a further application to vacate the hearing is made, given the history of the matter. But at present, that prospect is also hypothetical and if it should arise, any such application should and will be approached on its own merits, including any subsequent permanent stay application in light of any changed circumstances.

42. I also note that the prosecutor’s brief is complete, and all statements and evidence has been served on the accused. On that basis, the matter is ready to take a hearing date, and I propose to arrange this in consultation with the parties, as a 5 day special fixture, based on the estimate provided by the parties.

43. Accordingly, although with considerable sympathy for the accused’s position, the present application before the court for a permanent stay of the proceedings is dismissed.

44. The question of costs arises. The hearing has been vacated on 3 prior occasions:

1. On 24 May 2021, in respect of the hearing on 16 and 18 June 2021 (vacated due to the unavailability of informant – not opposed by accused);

2. On 12 January 2022, in respect of hearing on 12 and 14 January 2022 (vacated due to the Covid-19 pandemic); and

3. On 7 June 2022, in respect of the hearing on 11 – 13 July 2022 (vacated due to the service of the 41-page statement from the complainant and the bringing of the 27 additional charges arising therefrom).

45. I also note there was the appearance on 22 December 2021 in which the prosecutor made the (unsuccessful) application to vacate the hearing on 12 January 2022 due to the new officer in charge being on annual leave.

46. The costs of the appearance on 22 December 2021 were reserved on that day, and on 7 June 2022, the costs of the appearance on that day, and the costs of vacating the hearing of 11-13 July 2022, were also reserved.

47. I have not yet made any determination on the question of costs, and I note this was not fully argued at the hearing yesterday, as the focus concerned the permanent stay application. In particular, I will need to invite the parties to address me on whether ss 214 and/or 216 of the Criminal Procedure Act 1986 apply in respect of the accused’s costs claim, and indeed I also need to clarify what costs the accused actually claims, and the quantum of the claim.

C.    ORDERS

48. The orders of the court are:

1. The accused’s application for a permanent stay of these proceedings is dismissed; and

2. Costs reserved.

Magistrate Scott Nash

Kempsey Local Court

12 July 2022

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Decision last updated: 14 October 2022