New South Wales
Court of Criminal Appeal
CITATION: MG v R [2007] NSWCCA 57 HEARING DATE(S): 27 February 2007
JUDGMENT DATE:
5 March 2007JUDGMENT 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 1986CASES 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 657PARTIES: 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)MONDAY 5 MARCH 2007McCLELLAN CJ at CL
BELL J
HOEBEN J
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:
1. A stay of the proceedings until further order of the court.
In the alternative:
2. That the Crown Prosecutor be restrained from further representing the Crown in these proceedings.
2 The applicant has also filed a motion returnable in the Court of…
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Details
- AGLC
- MG v The Queen [2007] NSWCCA 57
- Case
- [2007] NSWCCA 57
- Decision Date
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.
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
Orders of the court
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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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