5 July 2018 and on the papers in relation to some of the relief sought
Date of orders:
20 July 2018
Decision date:
20 July 2018
Before:
Meagher JA at [1]; Rothman J at [1]; Garling J at [1]
Decision:
1. Grant leave to AB to make an application under r 50C of the Criminal Appeal Rules (NSW). 2. Dismiss paragraphs 1, 2, 4, 5, 6, 7, 8 and 11 of AB’s notice of motion filed on 13 June 2018. 3. Vacate order 1 made by Simpson AJA, Bellew and Wilson JJ on 6 June 2018 and instead order that the orders of this Court made on 6 June 2018 be stayed until 5pm on Monday, 30 July 2018 or until the High Court grants or refuses a stay of those orders, whichever (of the expiry of that period and the High Court’s determination) first occurs.
Catchwords:
CRIME – where respondent convicted of historic sexual offences – where Court of Criminal Appeal set aside orders of District Court under Court Suppression and Non-publication Orders Act 2010 (NSW) in relation to identity of respondent – application under Criminal Appeal Rules (NSW), r 50C to set aside orders on appeal – whether Court misapprehended facts – whether respondent denied opportunity to address particular issue – whether Court overlooked evidence and submissions regarding respondent’s psychological safety – no ground for re-opening appeal made out
CRIME – application for stay of orders pending determination of application for special leave to appeal – assessment no realistic prospects special leave be granted – fact of application for special leave alone not warrant stay, notwithstanding refusal will result in application being of no utility
CRIME – application for stay of orders pending fresh application to the District Court under the Court Suppression and Non-publication Orders Act – stay not reasonably required for, or incidental and necessary to, exercise of appellate powers under that Act or to preserve efficacy of the Court’s judgments – no power to grant stay
CRIME – application for indemnity certificate under the Suitors Fund Act 1951 (NSW) – whether appeal under Court Suppression and Non-publication Orders Act, s 14 one to which Suitors Fund Act, s 6 can apply – power to issue certificate enlivened but not exercised
[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 R v AB (No. 2)
Sign in free to access the full text
Details
AGLC
R v AB (No. 2) [2018] NSWCCA 148
Case
[2018] NSWCCA 148
Decision Date
CaseChat Overview and Summary
In the matter of R v AB (No. 2), the respondent appealed against the decision of the Court of Criminal Appeal, which had set aside the orders of the District Court concerning the suppression of their identity. The appeal raised issues surrounding the Court of Criminal Appeal's handling of the case, including whether it misapprehended facts, whether the respondent was denied an opportunity to address a particular issue, and whether it overlooked evidence and submissions regarding the respondent's psychological safety. The appeal also included an application for a stay of the orders pending the determination of an application for special leave to appeal, a stay pending a fresh application to the District Court under the Court Suppression and Non-publication Orders Act, and an indemnity certificate under the Suitors Fund Act 1951 (NSW).
The court considered whether the appeal against the Court of Criminal Appeal's decision had any reasonable prospects of success and whether the Court of Criminal Appeal had misapprehended the facts. The court concluded that the appeal did not disclose any ground for re-opening the appeal, as it did not establish that the Court of Criminal Appeal had misapprehended facts, denied the respondent an opportunity to address a particular issue, or overlooked evidence and submissions regarding the respondent's psychological safety. The court also found that the fact of the application for special leave alone did not warrant a stay, and that the stay was not reasonably required for, or incidental and necessary to, the exercise of appellate powers under the Court Suppression and Non-publication Orders Act. Finally, the court declined to issue an indemnity certificate, as the appeal under the Court Suppression and Non-publication Orders Act was not one to which the Suitors Fund Act, s 6 could apply.
In summary, the appeal was dismissed, and the application for a stay and an indemnity certificate was refused. The court found that the Court of Criminal Appeal had not misapprehended facts, denied the respondent an opportunity to address a particular issue, or overlooked evidence and submissions regarding the respondent's psychological safety. The court also found that the application for special leave alone did not warrant a stay, and that the stay was not reasonably required for, or incidental and necessary to, the exercise of appellate powers under the Court Suppression and Non-publication Orders Act. Finally, the court declined to issue an indemnity certificate, as the appeal under the Court Suppression and Non-publication Orders Act was not one to which the Suitors Fund Act, s 6 could apply.