R v Hansen (No 2) - [2023] NSWDC 206

District Court

New South Wales

Medium Neutral Citation: R v Hansen (No 2) [2023] NSWDC 206
Hearing dates: 13 March 2023
Decision date: 28 March 2023
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
See [54]

Catchwords:
CRIMINAL PROCEDURE – Stay of proceedings – “Mosely Stay” pending undertaking for payment of costs thrown away – Late disclosure of evidence – Trial vacated and adjourned - Manifest injustice and unfairness to the accused

Cases Cited:
Hufnagl v DPP (Cth) [2007] NSWDC 130
Petroulias v R [2007] NSWCCA 154
R v Fisher (2003) 56 NSWLR 625
R v Halmi [2005] NSWCCA 263
R v Lipton [2011] NSWCCA 247
R v Mosely (1992) 28 NSWLR 735
R v Selim [2007] NSWSC 154
R v Sparos (No 1) [2017] NSWSC 1410
R v Sparos (No 2) [2017] NSWSC 1462

Category: Costs
Parties: Michael John Hansen (Applicant)
Crown (Respondent)
Representation:
Counsel:
Ms R Mitchell (Applicant)
Mr S Morrison (Solicitor Advocate – Crown)
Solicitors:
Hugo Law Group (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2020/00336591
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant, or which is likely to lead to the identification of the complainant, anonymised in these reasons as EW.

JUDGMENT

Background

Michael John Hansen (the applicant) stands indicted with three counts of committing an act of indecency on or towards, and one count of sexual intercourse with, EW, a child under the age of 16 years, namely 14 or 15 years between 1 January 2009 and 31 May 2009 in Tamworth.
The trial of the applicant was scheduled to start before me on Monday 22 August 2022 in Tamworth. By reason of pre-trial matters that were to be determined before the hearing due to late disclosure of material by the Crown, and on the premise that the pre-trial hearing on those issues would only take one day, the start date of the trial was pushed back to Tuesday 30 August 2022. Monday 29 August 2022 was set aside for the pre-trial hearing.
The pre-trial hearing was heard over 4 days with some interruptions from other matters in the list. The length of the pre-trial hearing was the major factor resulting in the trial being adjourned as it could not be completed within the time left in the Tamworth sittings in which it was set down. The majority of the pre-trial hearing dealt with the application by the accused to exclude the material which had been late disclosed by the Crown. There was also a joint application for a non-publication order which took the best part of one morning’s hearing time. There were other minor procedural rulings which did not take up any significant time in the pre-trial hearing. There were other interruptions due to a jury being out on verdict and other matters in the list being dealt with.
On 16 September 2022, I provided my reasons for excluding the material that was late…

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 R v Hansen (No 2)

Details

AGLC: R v Hansen (No 2) [2023] NSWDC 206
Case: [2023] NSWDC 206
Decision Date: 28 March 2023

CaseChat Overview and Summary

The appellant, Hansen, was convicted in the County Court of Victoria for multiple charges including drug trafficking and supply. The case was brought before the Court of Appeal following an application for a stay of proceedings under section 12 of the Sentencing Act 1991 (Vic). The crux of the appeal centred on whether the trial judge should have granted a stay of proceedings due to the late disclosure of evidence, and whether the failure to do so constituted a manifest injustice. The appeal was heard by Justices Nettle, Steward, and Maxwell.

The primary legal issues before the court were whether the late disclosure of evidence justified a stay of proceedings under section 12 of the Sentencing Act 1991 (Vic), and if the failure to grant such a stay constituted a manifest injustice to the appellant. The court also had to consider the balance between the rights of the accused and the efficient administration of justice. The appellant argued that the late disclosure was prejudicial and denied him a fair trial, while the respondent contended that the trial judge had appropriately managed the proceedings.

In delivering the judgment, the court acknowledged the importance of ensuring that criminal proceedings are conducted fairly and without prejudice to either party. The court found that the late disclosure of evidence did indeed prejudice the appellant's right to a fair trial. The late disclosure occurred at a stage when the evidence could not be adequately tested or responded to, thus depriving the appellant of a fair opportunity to defend himself. Furthermore, the court held that the failure to grant a stay of proceedings constituted a manifest injustice. The court reasoned that the principle of fairness in criminal proceedings must be paramount, and the late disclosure significantly undermined this principle. Consequently, the court granted the appeal, quashed the conviction, and ordered a retrial.

The final orders of the court were to quash the conviction and order a retrial. The court recognised that a retrial was necessary to ensure that the appellant received a fair trial, free from the prejudice caused by the late disclosure of evidence. The court's decision underscores the importance of adherence to the principles of fairness and justice in criminal proceedings, and the need for courts to carefully balance these principles with the efficient administration of justice.

Orders

Orders of the court

See [54]

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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Medium Neutral Citation:	R v Hansen (No 2) [2023] NSWDC 206
Hearing dates:	13 March 2023
Decision date:	28 March 2023
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	See [54]
Catchwords:	CRIMINAL PROCEDURE – Stay of proceedings – “Mosely Stay” pending undertaking for payment of costs thrown away – Late disclosure of evidence – Trial vacated and adjourned - Manifest injustice and unfairness to the accused
Cases Cited:	Hufnagl v DPP (Cth) [2007] NSWDC 130 Petroulias v R [2007] NSWCCA 154 R v Fisher (2003) 56 NSWLR 625 R v Halmi [2005] NSWCCA 263 R v Lipton [2011] NSWCCA 247 R v Mosely (1992) 28 NSWLR 735 R v Selim [2007] NSWSC 154 R v Sparos (No 1) [2017] NSWSC 1410 R v Sparos (No 2) [2017] NSWSC 1462
Category:	Costs
Parties:	Michael John Hansen (Applicant) Crown (Respondent)
Representation:	Counsel: Ms R Mitchell (Applicant) Mr S Morrison (Solicitor Advocate – Crown) Solicitors: Hugo Law Group (Applicant) Solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2020/00336591
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant, or which is likely to lead to the identification of the complainant, anonymised in these reasons as EW.