Date of Order: 19 January 2016 Date of Publication of Reasons: 4 April 2016
S265/2015
ORDER
The applicant's summons filed on 17 December 2015 be dismissed.
Representation
G O'L Reynolds SC with D P Hume for the applicant (instructed by Breene and Breene Solicitors)
W J Abraham QC with S F Beckett for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Obeid v The Queen
Practice and procedure – High Court of Australia – Appeal – Stay of proceeding – Application to stay criminal proceeding in Supreme Court of New South Wales pending determination of application for special leave to appeal – Applicant made interlocutory application before empanelment of jury in proceeding on indictment in Supreme Court to quash indictment or permanently stay proceeding – Application refused by single judge – Appeal dismissed by Court of Criminal Appeal – Application made for special leave to appeal – Whether criminal proceeding should be stayed pending determination of special leave application.
GAGELER J. This is a revised version of the reasons for decision delivered orally in open court on 19 January 2016 at the conclusion of a hearing on that day of an application for a stay of criminal proceedings pending the determination of an application for special leave to appeal. There being no urgency about the publication of the reasons in written form, their publication has been delayed until the expiration of a non-publication order has made redaction unnecessary. My reasons for making that non-publication order are to be published separately.
The applicant for special leave to appeal pleaded not guilty in the Supreme Court of New South Wales to the common law offence of wilfully misconducting himself in public office. The charge, as it came to be formulated in an amended indictment, related to representations the applicant was alleged to have made to a senior employee of the Maritime Authority of New South Wales between 1 August 2007 and 30 November 2007 when the applicant was a Member of the Legislative Council of New South Wales. The trial, originally fixed to commence in October 2015, was adjourned. In October 2015, it was re-fixed to commence on 10 February 2016.
On 22 September 2015, Beech‑Jones J overruled a demurrer to the amended indictment and otherwise dismissed a notice of motion by which the applicant sought either to quash the indictment or permanently to stay the proceedings[1]. Relevant to the special leave application, his Honour considered and rejected two contentions. The first was that the Supreme Court of New South Wales lacked jurisdiction to entertain the charge against the applicant because the subject matter of the charge was within the exclusive cognisance of the Legislative Council. The second was that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Obeid v The Queen [2016] HCA 9
Case
[2016] HCA 9
Decision Date
CaseChat Overview and Summary
The applicant, Obeid, sought a stay of criminal proceedings in the Supreme Court of New South Wales pending the determination of his application for special leave to appeal to the High Court of Australia. Obeid had made an interlocutory application to quash the indictment or permanently stay the proceedings before the empanelment of the jury, which was refused by a single judge and subsequently dismissed by the Court of Criminal Appeal.
The central legal issue before Gageler J was whether the criminal proceeding in the Supreme Court of New South Wales should be stayed pending the determination of Obeid's application for special leave to appeal to the High Court. This involved considering the principles governing the grant of a stay of criminal proceedings in such circumstances.
Gageler J applied the principles established in cases such as *Sankey v Whitlam* and *R v P* which outline the exceptional circumstances required for a stay of criminal proceedings pending an appeal. His Honour considered the applicant's prospects of success on the special leave application and the potential prejudice to the administration of justice. Ultimately, Gageler J found that the threshold for granting a stay had not been met.
The applicant's summons filed on 17 December 2015 was dismissed.
Orders
Orders of the court
The applicant's summons filed on 17 December 2015 be dismissed.