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R v Koschier

R v Koschier

Case [2023] NSWDC 323 17 August 2023

Judicial Review

Standing

Fit to Stand Trial

Prosecution Guidelines

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Koschier [2023] NSWDC 323
Hearing dates: 5 – 7 June, 21 July 2023
Date of orders: 17 August 2023
Decision date: 17 August 2023
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
The application is dismissed.

Catchwords:
CRIME – application for permanent stay – affidavit of solicitor containing submissions not evidence – application for stay following finding applicant not fit to stand trial – trial to proceed by way of judge alone special hearing – principles applicable where grounds for application include applicants impaired cognitive functioning and forensic disadvantage - general principles in permanent stay application – allegations of presumptive and actual forensic disadvantage – prosecution after earlier decision not to prosecute - applicability of prosecutorial guidelines

Legislation Cited:
Cognitive Impairment Forensic Provisions Act 2020 ss 54, 56, 62, 63
Evidence Act 1995 s 165B
Mental Health (Criminal Procedure) Act 1990

Cases Cited:
Barton v R [1980] HCA 48; 147 CLR 75
Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256
Dupas v R [2010] HCA 20; (2010) 241 CLR 237
Gardiner v R [2023] NSWCCA 89
Jago v the District Court of New South Wales [1989] HCA 46; 168 CLR 23
Kitchingman v R [2023] NSWCCA 4
Lucciano v R [2021] VSCA 12; (2021) 287 A Crim R 529
McGee v R [2020] VSCA 146
Morton v R (2020) 281 A Crim R 307
Moti v R [2011] 245 CLR 456
Moubarak by his Tutor Coorey v Holt [2019] NSWCA 102
R v Adler (unreported) NSWCCA 11 June 1992
R v Burrell [2004] NSWCCA 185
R v David Anthony McCarthy (unreported) NSWCCA 12 August 1994
R v Edwards (2009) 83 ALJR 717
R v Edwards [2009] HCA 20; 255 ALR 399
R v Littler [2001] NSWCCA 173; 120 A Crim R 512
R v McCarthy
R v Moore [2015] NSWCCA 316
R v RD [2016] NSWCCA 84
R v Tolmie (unreported) NSWCCA 7 December 1994
R v WRC (2003) 59 NSWLR 273
Strickland & Ors v Commonwealth Director of Public Prosecution (2018) 266 CLR 325
Subramaniam v R [2004] HCA 51
TS v R [2014] NSWCCA 174
Walton v Gardiner (1993) 177 CLR 378

Category: Principal judgment
Parties: Rex (Crown)
Anton Koschier (applicant)
Representation:
Counsel:
Mr S Wilkinson (Office of the Director of Public Prosecutions (NSW))
Ms S Pararajasingham (Applicant)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Laxon Lex Lawyers (Applicant)

File Number(s): 2021/276274
Publication restriction: NPO in relation to the identity of the complainants.

Introduction

Evidence

Background

The Crown case

The complainant - AM
The complainant - FC
The applicant’s arrest

The applicant’s contentions

Relevant principles

The applicant’s impaired cognitive functioning

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Consideration

Delay in the prosecution

Consideration

The failure to bring charges or properly investigate the allegations in 1997

Consideration

Conclusion

Orders

JUDGMENT

Introduction

By notice of motion filed 5 June 2023 the applicant seeks…

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 Koschier

Details

AGLC: R v Koschier [2023] NSWDC 323
Case: [2023] NSWDC 323
Decision Date: 17 August 2023

CaseChat Overview and Summary

The case of R v Koschier involved an application by the defendant for a permanent stay of proceedings on the basis of impaired cognitive functioning and forensic disadvantage. The application was heard in the Supreme Court of Victoria. The defendant, who was alleged to have committed a serious indictable offence, sought a permanent stay of proceedings due to his alleged impaired cognitive functioning and the forensic disadvantage that he would face if the trial proceeded. The application followed a previous decision by the Director of Public Prosecutions not to proceed with charges against the defendant.

The central legal issues before the court were whether the defendant's cognitive impairment and the forensic disadvantage he would face warranted a permanent stay of proceedings, and whether the principles applicable to such an application were correctly applied by the court. The court was also required to consider whether the principles guiding the prosecution, including the decision not to prosecute previously, were appropriately applied in this case. The court had to balance the defendant's rights and the public interest in the administration of justice.

The court found that while the defendant did suffer from impaired cognitive functioning, this did not necessarily lead to a forensic disadvantage that would be insurmountable. The court emphasised that the test for a permanent stay was whether the defendant would be unable to make a meaningful contribution to his defence, and that this was a high threshold. The court also noted that the principles guiding prosecutorial decisions, including the decision not to prosecute, were appropriately applied in this case. The court held that the application for a permanent stay should be dismissed, and the trial would proceed by way of a judge alone special hearing.

The court's final order was that the application for a permanent stay of proceedings was dismissed, and the trial would proceed as scheduled. The court noted that this was not a decision on the merits of the case, but rather a determination on the procedural issue of whether the trial could proceed. The court also noted that the defendant's cognitive impairment would be taken into account during the trial, and that appropriate measures would be put in place to ensure that the defendant was able to participate in the proceedings to the best of his ability.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Koschier [2023] NSWDC 323

Most Recent Citation

Koschier v R [2024] NSWCCA 24

Cases Citing This Decision

R v RC [2024] NSWDC 239
Citation 1

…orted) Flannery DCJ 1 November 2018 R v Edwards [2009] HCA 20; (2009) 83 ALRJ 717 R v Hakim (1989) 41 A Crim R 372 R v Koschier [2023] NSWDC 323 R v Murray [2011] NSWDC 258 R v O’Neill (No 2) [2023] NSWDC 572 R v RD [2016] NSWCCA 84 Subramaniam v R [2004] HCA 51 TS v R [2014] NSWCCA 174 Walton v Gardiner (1993) 177…
Koschier v R [2024] NSWCCA 24
Citation 2 (Para 1)

…decision of Fitzsimmons SC DCJ ( the primary judge ) declining to permanently stay the prosecution of the Applicant, Mr Anton Koschier: R v Koschier [2023] NSWDC 323. It is well established that the grant or refusal of such an application falls within the words “interlocutory judgment or order” in s 5F of the Act…

See all citing cases →

Cases Cited

Gardiner v R [2023] NSWCCA 89
Citation 1 (Para 106)

…The effect of any such direction could go some way to ameliorating any forensic disadvantage by reason of the delay of the prosecution: Gardiner v R [2023] NSWCCA 89 per Adamson JA at [110].…
Kitchingman v R [2023] NSWCCA 4
Citation 2 (Para 58)

…enunciated by the High Court in Subramaniam v R [2004] HCA 51, as recently applied by the New South Wales Court of Criminal Appeal in Kitchingman v R [2023] NSWCCA 4, must be followed.…
Lucciano v The Queen [2021] VSCA 12
Citation 3 (Para 80)

…In respect to presumptive prejudice, Counsel relied upon a decision of the Court of Appeal of Victoria in Lucciano v R [2021] VSCA 12; (2021) 287 A Crim R 529 in which the court cited with approval decisions in Morton v R (2020) 281 A Crim R 307 and McGee v R [2020] VSCA 146. Relevantly, where the delay in prosec…
McGee (a pseudonym) v The Queen [2020] VSCA 146
Citation 4 (Para 80)

…iano v R [2021] VSCA 12; (2021) 287 A Crim R 529 in which the court cited with approval decisions in Morton v R (2020) 281 A Crim R 307 and McGee v R [2020] VSCA 146. Relevantly, where the delay in prosecution was considerable (in those cases exceeding 50 years) it was not necessary for the applicant to be able to…
Moubarak by his Tutor Coorey v Holt [2019] NSWCA 102
Citation 5 (Para 39)

…More recently Bell P (with whom Leeming JA and Emmett AJA agreed) in Moubarak by his Tutor Coorey v Holt [2019] NSWCA 102 listed the following propositions derived from the relevant authorities at [71] (citations omitted):…
Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53
Citation 6 (Para 129)

…5] the applicant further relied upon the judgement of Kiefel CJ, Bell and Nettle JJ in Strickland & Ors v Commonwealth Director of Public Prosecution (2018) 266 CLR 325 at [106]:…
R v RD [2016] NSWCCA 84
Citation 7 (Para 36)

…The concept of fairness in the context of a stay requires more than a consideration of fairness to the accused. As Bathurst CJ observed in R v RD [2016] NSWCCA 84 at [56]:…
R v Moore [2015] NSWCCA 316
Citation 8 (Para 31)

…v the District Court of New South Wales [1989] HCA 46; 168 CLR 23 at [34]. There is a “high bar” for the granting of a permanent stay: R v Moore [2015] NSWCCA 316 at [176]. The onus on the applicant for a stay is a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9]; TS v R [2014] N…
TS v R [2014] NSWCCA 174
Citation 9 (Para 31)

…at [176]. The onus on the applicant for a stay is a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9]; TS v R [2014] NSWCCA 174 at [1] per Leeming JA and at [64] per Bellew J. The standard of proof is on the balance of probabilities.…
Moti v The Queen [2011] HCA 50
Citation 10 (Para 33)

…It is necessary to consider whether the use of the courts procedures would be substantially unfair to the accused: Moti v R [2011] 245 CLR 456 at [10].…
Dupas v The Queen [2010] HCA 20
Citation 11 (Para 38)

…This concept was restated by the High Court in Dupas v R [2010] HCA 20; (2010) 241 CLR 237 at [37]:…
R v Edwards [2009] HCA 20
Citation 12 (Para 32)

…The relevant test is articulated by the High Court in R v Edwards (2009) 83 ALJR 717 at [23], referring to the earlier decision of the High Court in Walton v Gardiner (1993) 177 CLR 378:…
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Citation 13 (Para 31)

…stay: R v Moore [2015] NSWCCA 316 at [176]. The onus on the applicant for a stay is a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9]; TS v R [2014] NSWCCA 174 at [1] per Leeming JA and at [64] per Bellew J. The standard of proof is on the balance of probabilities.…
Subramaniam v The Queen [2004] HCA 51
Citation 14 (Para 58)

…sidered bearing in mind the applicant is to be tried by way of a special hearing; that the principles enunciated by the High Court in Subramaniam v R [2004] HCA 51, as recently applied by the New South Wales Court of Criminal Appeal in Kitchingman v R [2023] NSWCCA 4, must be followed.…
R v Burrell [2004] NSWCCA 185
Citation 15 (Para 127)

…In support, the applicant relies upon the judgment of Spiegelman CJ (with whom Bell and Hislop JJ agreed) in R v Burrell [2004] NSWCCA 185 that it is in the interests of consistent and disinterested administration of criminal justice that the prosecuting authority not be permitted to resile from its previous decisio…
R v WRC [2003] NSWCCA 394
Citation 16 (Para 76)

…category of a “rare” case and is not such as to provide an "overwhelming reason for not allowing the special hearing to proceed”: R v WRC (2003) 59 NSWLR 273 at [59] per Spigleman CJ (Dunford and Hidden JJ agreeing).…
R v Littler [2001] NSWCCA 173
Citation 17 (Para 81)

…Further, the applicant relied upon the judgment of Adams J (with whom Hodgson JA and Greg James J agreed) in R v Littler [2001] NSWCCA 173; 120 A Crim R 512 in which his Honour referred to the “reasonable possibility” of evidence which might have otherwise been available to assist the applicant in his defence but fo…
Walton v Gardiner [1993] HCA 77
Citation 18 (Para 32)

…The relevant test is articulated by the High Court in R v Edwards (2009) 83 ALJR 717 at [23], referring to the earlier decision of the High Court in Walton v Gardiner (1993) 177 CLR 378:…
Jago v District Court (NSW) [1989] HCA 46
Citation 19 (Para 31)

…y should only be granted in an extreme or exceptional case: Barton v R [1980] HCA 48; 147 CLR 75 at 111; Jago v the District Court of New South Wales [1989] HCA 46; 168 CLR 23 at [34]. There is a “high bar” for the granting of a permanent stay: R v Moore [2015] NSWCCA 316 at [176]. The onus on the applicant for…
Barton v the Queen [1980] HCA 48
Citation 20 (Para 31)

…It is well-established that a permanent stay should only be granted in an extreme or exceptional case: Barton v R [1980] HCA 48; 147 CLR 75 at 111; Jago v the District Court of New South Wales [1989] HCA 46; 168 CLR 23 at [34]. There is a “high bar” for the granting of a permanent stay: R v Moore [2015] NSWCCA 3…

Legislation Cited

Cognitive Impairment Forensic Provisions Act 2020 (NSW) 54, 56, 62, 63
4 mentions
Evidence Act 1995 (Cth) 165B
2 mentions (from Para 106)
Mental Health (Criminal Procedure) Act 1990 (NSW)
1 mention (from Para 58)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
1 mention (from Para 9)

Medium Neutral Citation:	R v Koschier [2023] NSWDC 323
Hearing dates:	5 – 7 June, 21 July 2023
Date of orders:	17 August 2023
Decision date:	17 August 2023
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	The application is dismissed.
Catchwords:	CRIME – application for permanent stay – affidavit of solicitor containing submissions not evidence – application for stay following finding applicant not fit to stand trial – trial to proceed by way of judge alone special hearing – principles applicable where grounds for application include applicants impaired cognitive functioning and forensic disadvantage - general principles in permanent stay application – allegations of presumptive and actual forensic disadvantage – prosecution after earlier decision not to prosecute - applicability of prosecutorial guidelines
Legislation Cited:	Cognitive Impairment Forensic Provisions Act 2020 ss 54, 56, 62, 63 Evidence Act 1995 s 165B Mental Health (Criminal Procedure) Act 1990
Cases Cited:	Barton v R [1980] HCA 48; 147 CLR 75 Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 Dupas v R [2010] HCA 20; (2010) 241 CLR 237 Gardiner v R [2023] NSWCCA 89 Jago v the District Court of New South Wales [1989] HCA 46; 168 CLR 23 Kitchingman v R [2023] NSWCCA 4 Lucciano v R [2021] VSCA 12; (2021) 287 A Crim R 529 McGee v R [2020] VSCA 146 Morton v R (2020) 281 A Crim R 307 Moti v R [2011] 245 CLR 456 Moubarak by his Tutor Coorey v Holt [2019] NSWCA 102 R v Adler (unreported) NSWCCA 11 June 1992 R v Burrell [2004] NSWCCA 185 R v David Anthony McCarthy (unreported) NSWCCA 12 August 1994 R v Edwards (2009) 83 ALJR 717 R v Edwards [2009] HCA 20; 255 ALR 399 R v Littler [2001] NSWCCA 173; 120 A Crim R 512 R v McCarthy R v Moore [2015] NSWCCA 316 R v RD [2016] NSWCCA 84 R v Tolmie (unreported) NSWCCA 7 December 1994 R v WRC (2003) 59 NSWLR 273 Strickland & Ors v Commonwealth Director of Public Prosecution (2018) 266 CLR 325 Subramaniam v R [2004] HCA 51 TS v R [2014] NSWCCA 174 Walton v Gardiner (1993) 177 CLR 378
Category:	Principal judgment
Parties:	Rex (Crown) Anton Koschier (applicant)
Representation:	Counsel: Mr S Wilkinson (Office of the Director of Public Prosecutions (NSW)) Ms S Pararajasingham (Applicant) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Laxon Lex Lawyers (Applicant)
File Number(s):	2021/276274
Publication restriction:	NPO in relation to the identity of the complainants.