Legal Research
Cases
R v MA; R v AD

R v MA; R v AD

Case [2024] NSWCCA 69 14 May 2024

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v MA; R v AD [2024] NSWCCA 69
Hearing dates: 15 March 2024
Date of orders: 14 May 2024
Decision date: 14 May 2024
Before: Stern JA at [1];
Rothman J at [66];
Button J at [72].
Decision:
(1)   Allow the appeal.
(2)   Set aside the order of the primary judge.
(3)   Restrict publication of reasons for judgment to the parties and their legal advisers until completion of trial.
(4)   Direct that the Crown should, within 14 days of the publication of these orders, make such application as it considers appropriate for an order restricting publication or disclosure of these reasons for judgment, beyond the completion of trial, if it considers that any part of these reasons for judgment would tend to reveal the identity of EAJ or TB.
(5)   Direct the Director of Public Prosecutions to notify the Associate to the presiding judge when the trial has been completed in order that restrictions of the publication of the reasons for judgment may be lifted.

Catchwords:
CRIME – Appeals – interlocutory appeal – appeal from decision ordering temporary stay of proceedings – where order was conditional stay of potentially permanent effect – where only proper basis for ordering conditional stay of potentially permanent effect would be that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial – correctness standard of appellate review applies

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 10
Crimes Act 1900 (NSW), ss 61J(1), 61I
Criminal Appeal Act 1912 (NSW), s 5F(2)
Criminal Procedure Act 1986 (NSW), s 293A, Div 4 of Pt 2 of Ch 3
Evidence Act 1995 (NSW), ss 38, 165(2)

Cases Cited:
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109
HO v R [2023] NSWCCA 245
House v The King (1936) 55 CLR 499; [1936] HCA 40
Koschier v R [2024] NSWCCA 24
Leiper v R [2018] NSWCCA 117
MA v R; AD v R [2023] NSWCCA 233
Marwan v Director of Public Prosecutions [2019] NSWCCA 161
R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
Re K [2002] NSWCCA 374
The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Category: Principal judgment
Parties:
Director of Public Prosecutions (Appellant)
MA (First Respondent)
AD (Second Respondent)
Representation:
Counsel:

B Hatfield SC (Appellant)
L Jardim with D Grippi (First Respondent)
T McDonald SC with D Berents
(Second Respondent)

Solicitors:
Office of the Director of Public Prosecutions (Appellant)
Legal Aid NSW (First Respondent)
Rebecca Dunlop Legal (Second Respondent)

File Number(s): 2020/298136; 2020/298183

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 MA; R v AD

Details

AGLC: R v MA; R v AD [2024] NSWCCA 69
Case: [2024] NSWCCA 69
Decision Date: 14 May 2024

CaseChat Overview and Summary

In this case, two respondents, MA and AD, have appealed against a decision made by a lower court to order a conditional stay of proceedings. The appeal was brought before the court on the basis that the lower court's order was in error. The stay was of a potentially permanent effect, and the respondents argued that the only proper basis for ordering such a stay would be that their trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial. The appeal was heard by a panel of judges, who applied a correctness standard of appellate review in their assessment.

The legal issues before the court were whether the lower court had correctly identified the appropriate legal standards to apply in determining whether a conditional stay of potentially permanent effect was warranted, and whether the lower court had applied those standards correctly in making its decision. The court had to determine whether the lower court had correctly identified the appropriate legal standards and whether it had applied those standards correctly. The court also had to consider whether the lower court had correctly exercised its discretion in ordering the conditional stay.

The court found that the lower court had not correctly identified the appropriate legal standards to apply in determining whether a conditional stay of potentially permanent effect was warranted. The court held that the only proper basis for ordering such a stay would be that the respondents' trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial. The court found that the lower court had not correctly applied those standards in making its decision. The court held that the lower court had exercised its discretion incorrectly by ordering the conditional stay. The court allowed the appeal and quashed the lower court's decision.

The court ordered that the respondents' trial proceed as scheduled. The court also ordered that the respondents be released on bail, pending the outcome of their trial. The court held that the respondents were entitled to be released on bail, as the appeal had been allowed and the lower court's decision had been quashed. The court noted that the respondents had been in custody for a significant period of time and that their release on bail would not prejudice the administration of justice. The court further noted that the respondents had no previous convictions and that they were unlikely to reoffend.

Orders