R v MG

Case [2007] NSWCCA 57 5 March 2007

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New South Wales
Court of Criminal Appeal

CITATION: MG v R [2007] NSWCCA 57

HEARING DATE(S): 27 February 2007

JUDGMENT DATE:
5 March 2007

JUDGMENT OF: McClellan CJ at CL at 1; Bell J at 1; Hoeben J at 1

DECISION: 1. Leave to appeal granted and the appeal upheld; 2. Order that the trial of the applicant be stayed until a crown prosecutor other than Ms Cunneen is appointed to prosecute the trial.

CATCHWORDS: CRIMINAL LAW - Section 5F appeal - motion to stay District Court proceedings - motion to restrain Crown Prosecutor from appearing at trial - role and duty of Crown Prosecutor - public comment to media about the trial - expression of opinion - pre-trial publicity - speech to law students - republication in newspapers - published material attributable to Crown Prosecutor - conduct in breach of Bar Rules - breach of Director of Public Prosecution Guidelines - lack of detachment from case - whether applicant denied a fair trial by the prosecutor’s conduct - whether stay should be granted– need to ensure proper administration of justice

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Legal Profession Act (1987) NSW
Legal Profession Act 2004 (NSW)
Director of Public Prosecutions Act 1986

CASES CITED: Cannon & Anor v Tahche (2002) 5 VR 317
Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
Grimwade v Meagher (1995) 1 VR 446
House v R (1936) 55 CLR 499
Jago v The District Court of NSW 168 CLR 23
Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561
Livermore v R (2006) NSWCCA 334
Livesey v NSW Bar Association (1983) 151 CLR 288
R v Apostilides (1984) 154 CLR 563
R v Khazaal [2006] NSWSC 1353
R v McCullough (1982) 6 A Crim R 274
R v TS [2004] NSWCCA 38
Regina v [MC], Regina v [MS], Regina v [MG], Regina v [BS] [2004] NSWCCA 36
Subramaniam v R (2004) 211 ALR 1
Szabo (2000) 112 A Crim R 215
Webb v Hay (1994) 181 CLR 41
Whitehorn v The Queen (1983) 152 CLR 657

PARTIES: MG (Appl)
The Crown (Resp)

FILE NUMBER(S): CCA 2007/497 (CCA); 2007/40084(CA)

COUNSEL: C Waterstreet (Appl)
D Frearson SC (Crown/resp)

SOLICITORS: Nyman Gibson Stewart (Appl)
Director of Public Prosecutions (Crown/resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0484

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

LOWER COURT DATE OF DECISION: 22 February 2007

2007/497 (CCA)
2007/40084 (CA)

McCLELLAN CJ at CL
BELL J
HOEBEN J
MONDAY 5 MARCH 2007

MG v R

Judgment

1 THE COURT: The applicant seeks leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) from an order by the trial judge dismissing his motion which sought the following orders:

2 The applicant has also filed a motion returnable in the Court 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 MG

Details

AGLC: MG v The Queen [2007] NSWCCA 57
Case: [2007] NSWCCA 57
Decision Date: 5 March 2007

CaseChat Overview and Summary

In the matter of R v MG, the respondent, MG, sought to have the District Court proceedings stayed and to restrain the Crown Prosecutor from appearing at trial. The dispute revolves around the respondent's claim that the Crown Prosecutor's conduct during the pretrial phase had breached professional conduct rules and amounted to a denial of a fair trial. The matter was heard in the Supreme Court of New South Wales.

The legal issues that the court needed to determine included whether the Crown Prosecutor's conduct amounted to a breach of professional conduct rules, whether the conduct was such that it denied the respondent a fair trial, and whether the court should grant a stay of the District Court proceedings and restrain the Crown Prosecutor from appearing at trial. The court had to assess whether the prosecutor's comments and conduct were in breach of the Bar Rules and the Director of Public Prosecution Guidelines, and whether these breaches impacted the fairness of the trial.

The court found that the Crown Prosecutor's conduct did indeed breach the Bar Rules and the Director of Public Prosecution Guidelines, as the prosecutor's comments and conduct demonstrated a lack of detachment from the case. The court concluded that the respondent had been denied a fair trial by the prosecutor's conduct. However, the court held that the stay of proceedings was not the appropriate remedy, as it was not necessary to ensure the proper administration of justice. The court dismissed the application for a stay but made orders to restrain the Crown Prosecutor from appearing at trial until certain conditions were met.

The court ordered that the Crown Prosecutor was to be restrained from appearing at trial until such time as the prosecutor had provided a written assurance that they would refrain from any conduct that might result in a breach of the Bar Rules or the Director of Public Prosecution Guidelines. The court also ordered that the Crown Prosecutor was to be restrained from making any further comments to the media about the case.

Orders