R v Michael Foxman - [2025] NSWLC 3

Local Court

New South Wales

Medium Neutral Citation: R v Michael FOXMAN [2025] NSWLC 3
Hearing dates: 24 June 2024, 6 December 2024, 31 January 2025, 21 March 2025, 4 April 2025
Date of orders: 2 May 2025
Decision date: 02 May 2025
Jurisdiction: Criminal
Before: Donnelly LCM
Decision:
Second application for a permanent stay of proceedings is refused and dismissed

Catchwords:
Stay of proceedings – conduct of hearing – whether use of remote room to control proceedings constituted an abuse of process – defendant persistently speaking over his lawyer and interrupting the proceedings including evidence given by a witness – defendant given warning that the remote room would be used but failed to desist – use of remote room consistent with the approach taken in Eastman v The Queen (1997) 76 FCR 9 – discussion of the notion of fairness – requirement to afford natural justice and procedural fairness extends to the prosecution – DPP (NSW) v Chaouk [2010] NSWSC 1418 and The Queen v Lewis (1988)165 CLR 12 applied – fair trial principle does not entitle a defendant to talk over his or her lawyer during the proceedings – Henskens v Rudd [2020] NSWSC 533 applied
Cross-examination – requirement of the Court to intervene, control and sometimes cease cross-examination – defendant persistently failed to follow judicial directions as to the limits of cross-examination – defendant continued to interrupt and commentate instead of framing questions – the decision to cease cross-examination was not an abuse of process and was consistent with appellate authority of the subject – Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 and Libke v The Queen (2007) 230 CLR 559 applied
Application for a stay to pursue causes of action in the Federal Court against judicial officers – judicial officers of courts referred to in s 77(iii) of the Commonwealth Constitution are immune from a civil suit – State ofQueensland v Mr Stradford (a pseudonym) [2025] HCA 3 applied

Legislation Cited:
Evidence Act, ss 11, 26

Cases Cited:
Dietrich v The Queen (1992) 177 CLR 292
DPP (NSW) v Chaouk [2010] NSWSC 1418
DPP v Hamzy [2019] NSWCA 314
Eastman v The Queen (1997) 76 FCR 9
Henskens v Rudd [2020] NSWSC 533
Jago v The District Court of NSW (1989) 168 CLR 23 Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243
Libke v The Queen (2007) 230 CLR 559
Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
Newson v Ly [2001] NSWSC 1117
State ofQueensland v Mr Stradford (a pseudonym) [2025] HCA 3
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325
The Queen v Lewis (1988)165 CLR 12

Texts Cited:
JJ Spigelman, “The truth can cost too much: the principle of a fair trial” (2004) 78 ALJ 29

Category: Procedural rulings
Parties:
New South Wales Police Force (Prosecution)
Michael Foxman (Defendant)
Representation:
Solicitors:

Mr L Bonney, M & M Lawyers (24…

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 Michael Foxman

Details

AGLC: R v Michael Foxman [2025] NSWLC 3
Case: [2025] NSWLC 3
Decision Date: 02 May 2025

CaseChat Overview and Summary

In the matter of R v Michael Foxman, the court was confronted with multiple issues regarding the conduct of the criminal proceedings against the defendant. Foxman faced accusations necessitating the court to deliberate on the propriety of using a remote control room to manage his disruptive behaviour, the appropriateness of ceasing his cross-examination, and the admissibility of a civil action against judicial officers. The case was heard and decided in the Supreme Court of New South Wales.

The legal questions before the court involved whether the use of a remote control room to silence Foxman, who persistently spoke over his lawyer and disrupted the trial, constituted an abuse of process. The court also had to determine if the decision to cease Foxman's cross-examination, due to his failure to follow judicial directions, was justified. Furthermore, the court considered the validity of Foxman's application to pursue civil actions against judicial officers in the Federal Court, under section 77(iii) of the Commonwealth Constitution.

The court found that the use of the remote control room was a proportionate response to Foxman's disruptive conduct, which was consistent with prior cases such as Eastman v The Queen (1997) 76 FCR 9. The notion of fairness in a trial does not permit a defendant to talk over their lawyer, as per Henskens v Rudd [2020] NSWSC 533. The court also ruled that the cessation of Foxman's cross-examination was in line with established case law, as seen in Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 and Libke v The Queen (2007) 230 CLR 559. Finally, the court dismissed Foxman's application to sue judicial officers, citing State of Queensland v Mr Stradford (a pseudonym) [2025] HCA 3, which confirmed judicial immunity from civil suits.

The court ultimately dismissed the second application for a permanent stay of proceedings, affirming the decisions made regarding the management of Foxman's conduct during the trial, the cessation of his cross-examination, and the rejection of his civil claims against judicial officers.

Orders

Orders of the court

Second application for a permanent stay of proceedings is refused and dismissed

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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Medium Neutral Citation:	R v Michael FOXMAN [2025] NSWLC 3
Hearing dates:	24 June 2024, 6 December 2024, 31 January 2025, 21 March 2025, 4 April 2025
Date of orders:	2 May 2025
Decision date:	02 May 2025
Jurisdiction:	Criminal
Before:	Donnelly LCM
Decision:	Second application for a permanent stay of proceedings is refused and dismissed
Catchwords:	Stay of proceedings – conduct of hearing – whether use of remote room to control proceedings constituted an abuse of process – defendant persistently speaking over his lawyer and interrupting the proceedings including evidence given by a witness – defendant given warning that the remote room would be used but failed to desist – use of remote room consistent with the approach taken in Eastman v The Queen (1997) 76 FCR 9 – discussion of the notion of fairness – requirement to afford natural justice and procedural fairness extends to the prosecution – DPP (NSW) v Chaouk [2010] NSWSC 1418 and The Queen v Lewis (1988)165 CLR 12 applied – fair trial principle does not entitle a defendant to talk over his or her lawyer during the proceedings – Henskens v Rudd [2020] NSWSC 533 applied Cross-examination – requirement of the Court to intervene, control and sometimes cease cross-examination – defendant persistently failed to follow judicial directions as to the limits of cross-examination – defendant continued to interrupt and commentate instead of framing questions – the decision to cease cross-examination was not an abuse of process and was consistent with appellate authority of the subject – Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 and Libke v The Queen (2007) 230 CLR 559 applied Application for a stay to pursue causes of action in the Federal Court against judicial officers – judicial officers of courts referred to in s 77(iii) of the Commonwealth Constitution are immune from a civil suit – State ofQueensland v Mr Stradford (a pseudonym) [2025] HCA 3 applied
Legislation Cited:	Evidence Act, ss 11, 26
Cases Cited:	Dietrich v The Queen (1992) 177 CLR 292 DPP (NSW) v Chaouk [2010] NSWSC 1418 DPP v Hamzy [2019] NSWCA 314 Eastman v The Queen (1997) 76 FCR 9 Henskens v Rudd [2020] NSWSC 533 Jago v The District Court of NSW (1989) 168 CLR 23 Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 Libke v The Queen (2007) 230 CLR 559 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Newson v Ly [2001] NSWSC 1117 State ofQueensland v Mr Stradford (a pseudonym) [2025] HCA 3 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325 The Queen v Lewis (1988)165 CLR 12
Texts Cited:	JJ Spigelman, “The truth can cost too much: the principle of a fair trial” (2004) 78 ALJ 29
Category:	Procedural rulings
Parties:	New South Wales Police Force (Prosecution) Michael Foxman (Defendant)
Representation:	Solicitors: Mr L Bonney, M & M Lawyers (24…