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

1. 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.

2. 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.”

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

Background

4. 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.

5. 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 and 13 November 2014. The applicant again gave evidence that, on 13 November 2011, he had consumed no more than 3 schooners of light beer. The District Court judge found in his favour and awarded substantial damages.

6. Subsequently, after further investigation, the applicant was charged with two counts under s 327(1) of the Crimes Act 1900 (NSW). Section 327(1) creates an offence of giving false evidence, shortly known as perjury. The first charge relates to the evidence given by the applicant in the criminal proceedings in the Wyong Local Court, the second relates to evidence given by him in the District Court proceedings. Later still, the applicant was charged with one count of tampering with evidence with intent to mislead a judicial tribunal (s 317(a) of the Crimes Act) and one count of doing an act with intent to pervert the course of justice (s 319 of the Crimes Act). Each of these counts relates to close circuit television footage taken in the Shelley Beach Golf Club.

7. These are the four counts on the indictment, the subject of the present application.

8. As long ago as November 2017 the trial on the indictment was fixed to commence on 29 January 2019, with an estimate of two weeks. On 29 January 2019 the applicant filed a Notice of Motion seeking permanent stay of count one, that is the count concerning allegedly false evidence given by him in the Wyong Local Court proceedings. The application was based on the principle stated in Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67. The Chief Justice said:

“The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict.”

9. The principle was applied in The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55.

10. The trial judge declined the application: R v Bernard Andrew Nash, unreported, District Court of NSW, 31 January 2019. It is that decision that the applicant seeks, by the route provided by s 5F(3) of the Criminal Appeal Act, to challenge in this Court.

11. Following that decision, the applicant sought a temporary stay of the trial in order to allow his s 5F application to proceed to determination. The trial judge declined that application also. It was on the basis of the latter decision that the applicant sought, in this Court, a temporary stay in order to allow the s 5F application to be determined.

12. The Crown opposed the application in this Court, essentially advancing two arguments:

(i) that the proposed s 5F appeal was insufficiently meritorious to warrant interference with a trial for which a date had been fixed for more than 12 months; and

(ii)   that, even if the applicant’s argument had merit, that merit could be determined on appeal in the event that the applicant was convicted.

13. The applicant’s position, put simply, is that for the prosecution to seek conviction of the applicant for perjury in the Wyong Local Court by reason of allegedly false evidence concerning the quantity of alcohol he had consumed on 13 November 2011 would, in effect, call into question his acquittal on the charge of driving under the influence of alcohol, and would contravene the principle stated in Garrett and accepted in Carroll; and would thus constitute an abuse of process.

Consideration

14. This Court has jurisdiction to make an order of the kind sought. In Macdonald v R; Maitland v R [2016] NSWCCA 306, Bathurst CJ, with whom Hulme and Bellew JJ agreed, said:

“It is well established that the Court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the Court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness. … However, as was stated in X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57, a stay will only be granted to the extent necessary to relieve against unfair consequences. …” (internal citations omitted)

15. The boundaries of the Garrett principal are not established: Carroll at [45].

16. The Court concluded that the applicant has an arguable case that the principle would be breached were his prosecution on the first count on the indictment to proceed. It is not to the point, as the Crown argued, that in the event of conviction the applicant would retain his right of appeal. The strong likelihood is that, were the trial to proceed on all four counts, any conviction on counts 2 to 4 would be tainted by evidence relating to the first count, no matter what the outcome on that count. The Court concluded that the applicant’s argument is sufficiently meritorious to warrant a temporary stay of proceedings on the indictment to enable this Court to give due consideration to the complex questions involved.

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Amendments

23 April 2025 - Publication restriction removed

Decision last updated: 23 April 2025