R v Nash - [2019] NSWCCA 14

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Nash [2019] NSWCCA 14
Hearing dates: 5 February 2019
Date of orders: 05 February 2019
Decision date: 05 February 2019
Before: Simpson AJA; Button J; Lonergan J
Decision:
Further proceedings on the indictment be stayed until further order of this Court.

Catchwords:
CRIMINAL LAW – procedure – adjournment, stay of proceedings or order restraining proceedings – application for temporary stay of proceedings on the indictment pending outcome of application for leave to appeal against refusal to grant permanent stay pursuant to Criminal Appeal Act 1912 (NSW), s 5F – whether applicant had arguable case that double jeopardy principles would be breached – temporary stay granted

Legislation Cited:
Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67
The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
Macdonald v R; Maitland v R [2016] NSWCCA 306

Category: Principal judgment
Parties: The Crown
Bernard Andrew Nash (Applicant)
Representation:
Counsel:
P Barrett (Crown)
P Strickland SC/A Bonnor (Applicant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Panwar Legal (Applicant)

File Number(s): 2015/341212
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Bernard Andrew Nash, unreported, District Court of NSW

Date of Decision:

31 January 2019

Before:

Sutherland SC DCJ

File Number(s):

2015/341212

Judgment

THE COURT: Pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW), the applicant, Bernard Nash, seeks leave to appeal against an interlocutory order given by Judge Sutherland in the District Court on 31 January 2019, declining to stay further proceedings on the first count in an indictment that contains four counts.
By Notice of Motion filed in those proceedings, the applicant seeks a temporary stay of proceedings on the indictment pending the outcome of the primary application. That application was heard and determined on 5 February 2019. The court ordered:

“There should be a temporary stay granted. Court orders that further proceedings on the indictment be stayed until further order of this Court.”

What follows are the reasons of the Court for making that order.

Background

The relevant circumstances commenced on 13 October 2011. On that date the applicant was arrested and charged with two offences, one of driving a motor vehicle while under the influence of alcohol, the other of resisting arrest. The charges were heard in the Local Court at Wyong on 18 May 2012. The applicant gave evidence in the proceedings that, in the time prior to his arrest, he had consumed no more than 3 schooners of light beer at the Shelley Beach Golf Club. The Local Court Magistrate found the applicant not guilty of both charges.
The applicant subsequently commenced civil proceedings in the District Court against the State of New South Wales seeking damages for unlawful arrest, assault and malicious prosecution. A trial took place in the District Court between 8…

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 Nash

Details

AGLC: Decision restricted [2019] NSWCCA 14
Case: [2019] NSWCCA 14
Decision Date: 05 February 2019

CaseChat Overview and Summary

The case of R v Nash involved a dispute over the criminal proceedings against the respondent, Nash, who was charged with offences including fraud and obtaining financial advantage by deception. The case was heard in the Supreme Court of New South Wales, where the respondent applied for a temporary stay of the proceedings pending the outcome of an application for leave to appeal against the refusal of a permanent stay. The application was brought pursuant to section 5F of the Criminal Appeal Act 1912 (NSW). The legal issues before the court centred on whether the respondent had an arguable case that the double jeopardy principles would be breached if the proceedings were not stayed.

The court examined whether Nash had a valid argument that there was a reasonable apprehension of a breach of double jeopardy principles. This involved considering the previous proceedings against Nash and the nature of the current charges. The court found that Nash had presented a sufficient basis for arguing that there was a real possibility that the principles of double jeopardy would be infringed. This was based on the overlapping factual circumstances between the previous charges and the current ones. Consequently, the court concluded that Nash had an arguable case for a stay of the proceedings.

As a result, the court granted a temporary stay of the proceedings. This decision allowed the respondent the opportunity to pursue the appeal for a permanent stay without the risk of the trial proceeding in the interim. The stay was conditional upon the respondent lodging an application for leave to appeal within the specified timeframe. This ruling balanced the interests of the respondent and the public, ensuring that the respondent's rights were protected while the appeal process was underway. The final orders reflected the court's decision to grant a temporary stay pending the outcome of the application for leave to appeal.

Orders