R v McCloskey (No 1) - [2020] NSWSC 771

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v McCloskey (No 1) [2020] NSWSC 771
Hearing dates: 1 June 2020
Date of orders: 15 June 2020
Decision date: 19 June 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
Crown application under s 45(5) refused

Catchwords:
CRIMINAL PROCEDURE – application under s 45(5) of the Crime Commission Act 2012 (NSW) to release evidence given before Crime Commission – where application is untimely – where Crown has had multiple opportunities to make application – where no adequate explanation given for late application - where insufficient opportunity for Judge to assess whether the interests of justice “required” release – where release would have resulted in the trial being vacated for a second time – application refused

Legislation Cited:
Criminal Appeal Act 1912 (NSW) s 5F
Crime Commission Act 2012 (NSW) s 45

Cases Cited:
Hamalainen v R [2019] NSWCCA 276
R v McCloskey; R v Hamalainen (No 2) [2019] NSWSC 1176
R v Hawat (No 1) [2019] NSWSC 1583
R v Jaghbir (No 1) [2020] NSWSC 762
R v Munshizada, Danishyar and Baines [2020] NSWSC 566
R v Qaumi (No 11) [2016] NSWSC 252

Texts Cited:
Nil

Category: Procedural and other rulings
Parties: Crown
Robert John Stewart McCloskey (Accused)
Representation:
Counsel:
S Hughes (Crown)
D McMahon (Accused)
R Bhalla (NSW Crime Commission)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Kapsis Solicitors (Accused)
Legal Unit, New South Wales Crime Commission (NSW Crime Commission)

File Number(s): 2017/354632

JUDGMENT

Robert John McCloskey is charged on a joint indictment with Sami Esko Hamalainen with the murder of John Salafia on 23 June 2013.
On 27 August 2019 Wright J dismissed an application by Mr Hamalainen for a separate trial, and dismissed applications by both accused for trial by judge alone: R v McCloskey; R v Hamalainen (No 2) [2019] NSWSC 1176. An application for leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) was made to the Court of Criminal Appeal in respect of the refusal to separate the trials. On 15 November 2019 the Court of Criminal Appeal upheld the appeal, and ordered that Mr Hamalainen be tried separately from Mr McCloskey: Hamalainen v R [2019] NSWCCA 276.
In the meantime, on 29 August 2019, Fullerton J vacated the trial of both accused fixed before Wright J to commence on 2 September 2019.
Mr McCloskey’s trial was subsequently fixed for trial by Fullerton J at an arraignment on 6 December 2019. The trial was fixed for 29 June 2020 before me.
I called the matter up on 31 March 2020, principally to determine whether there was to be a judge alone trial in the circumstances of the COVID-19 virus and the difficulties of being able to conduct jury trials. Two other matters were raised at that directions hearing. One concerned a likely motion on behalf of the accused for a stay of a further trial unless the Crown paid costs thrown away by reason of…

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 McCloskey (No 1)

Details

AGLC: R v McCloskey (No 1) [2020] NSWSC 771
Case: [2020] NSWSC 771
Decision Date: 19 June 2020

CaseChat Overview and Summary

The case of R v McCloskey (No 1) involves an application under section 45(5) of the Crime Commission Act 2012 (NSW) for the release of evidence given before the New South Wales Crime Commission. The applicant, the accused in the underlying criminal proceedings, sought the release of this evidence to aid in their defence. The Crown opposed the application, arguing that it was untimely and without adequate explanation.

The central legal issues before the court were whether the application for the release of evidence was made within a reasonable time and whether the interests of justice required the release of the evidence. The court had to consider the timeliness of the application and whether the applicant had provided sufficient justification for the delay. Additionally, the court needed to weigh the potential impact of the release on the trial, including whether it would necessitate vacating the trial for a second time.

In determining these issues, the court found that the application was untimely and that the applicant had not provided an adequate explanation for the delay. The court emphasised that the Crown had multiple opportunities to make the application and that the late timing prejudiced the Crown. Furthermore, the court concluded that the release of the evidence would have resulted in vacating the trial for a second time, which was not in the interests of justice. Consequently, the court refused the application. The court's decision was grounded in the principle that applications for the release of evidence should be made promptly, and the delay in this case was deemed unreasonable and unjustified.

Orders