Sayer-Jones v The The Queen

[2022] NSWCCA 99

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sayer-Jones v R [2022] NSWCCA 99

Hearing dates:

27 April 2022

Date of orders:

27 April 2022

Decision date:

18 May 2022

Before:

Macfarlan JA at [1];
Wright J at [23];
Dhanji J at [24].

Decision:

Orders made on 27 April 2022:

1. The Court orders that the prosecution of Mr Sayer-Jones pursuant to the indictment made on 3 March 2021 be stayed until the determination of Mr Sayer-Jones’ application for leave to appeal under s 5F of the Criminal Appeal Act 1912 and until the determination of any appeal that follows the grant of leave pursuant to such application, whichever occurs later.

2.       The Court reserves its reasons for making this order.

3.       The Court notes that the judgment giving its reasons for judgment will not be made available to the public on Caselaw until after Mr Sayer-Jones’ trial.

4.        Mr Sayer-Jones’ application for leave to appeal is to be listed before the Registrar on 5 May 2022.

Catchwords:

CRIMINAL PROCEDURE — s 5F Criminal Appeal Act 1912 — temporary stay of proceedings granted to enable applicant to seek leave to appeal against a decision of the District Court refusing a permanent stay application — reluctance of appellate courts to fragment criminal proceedings at first instance — prospects of appeal succeeding and balance of convenience considered

CRIMINAL PROCEDURE — whether plea bargains are a form of contractual undertaking — whether arguable that an abuse of process on the part of the Crown to reinstate charges that it agreed not to prosecute pursuant to a plea bargain with the applicant

Legislation Cited:

Crimes Act 1900 (NSW), ss 192G(b), 319

Criminal Appeal Act 1912 (NSW), s 5F(3)(a)

Cases Cited:

Agius v The Queen (2011) 80 NSWLR 486; [2011] NSWCCA 119

Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48

Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20

Feeney v The Queen (2014) 284 FLR 81; [2014] ACTCA 1

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46

Jamieson v The Queen (1993) 177 CLR 574; [1993] HCA 48

Macdonald v The Queen (2016) 93 NSWLR 736; [2016] NSWCCA 306

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

Nixon v R [2011] 2 SCR 566; 2011 SCC 34

Parker v Taylor (1994) 68 ALJR 496

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v BWM (1997) 91 A Crim R 260

R v Dinh (2000) 120 A Crim R 42; [2000] NSWCCA 536

R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215

R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41

R v Georgiadis [1984] VR 1030

R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399

R v Lewandowski (2003) 32 SR (WA) 247; [2003] WADC 108

R vMatovski (1989) 15 NSWLR 720; 41 A Crim R 368

R v Maxwell (1994) 34 NSWLR 606; 74 A Crim R 330

R vMosely (1992) 28 NSWLR 735; 65 A Crim R 452

R v Natoli [2005] NSWCCA 292

R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151

R v Van Phu Ho (Court of Criminal Appeal (NSW), 18 July 1994, unrep)

Sayer-Jones v Director of Public Prosecutions (NSW) [2019] NSWSC 1615

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45

United States of America v Sandoval-Lopez 122 F 3d 797 (9th Cir 1997)

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Category:

Principal judgment

Parties:

Robert Lyndon Sayer-Jones (Applicant)
Regina (Respondent)

Representation:

Counsel:
RL Sayer-Jones (self-rep) (Applicant)
E Balodis / M Hay (Respondent)

Solicitors:
Director of Public Prosecutions (Respondent)

File Number(s):

2021/61883

Publication restriction:

The Court notes that the judgment giving its reasons for judgment will not be made available to the public on Caselaw until after Mr Sayer-Jones’ trial.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

07 April 2022

Before:

King SC DCJ

File Number(s):

2021/61883

Judgment

1. MACFARLAN JA: On 27 April 2022 this Court heard an application by Mr Robert Sayer-Jones for an order temporarily staying criminal proceedings pending against him in the District Court. The stay was sought to enable him to seek leave to appeal and to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) against a decision of Judge King SC of 7 April 2022 refusing a permanent stay of the District Court proceedings which were at that time listed for a hearing commencing in late April 2022. The refusal of an application for a permanent stay is an “interlocutory judgment or order” within the meaning of s 5F (Agius v The Queen (2011) 80 NSWLR 486 at 489; [2011] NSWCCA 119 at [11]; R v King (2003) 59 NSWLR 472 at 477; [2003] NSWCCA 399 at [22]). For the reasons that appear below, I joined in the making on 27 April 2022 of the following temporary stay order:

“The Court orders that the prosecution of Mr Sayer-Jones pursuant to the indictment made on 3 March 2021 be stayed until the determination of Mr Sayer-Jones’ application for leave to appeal under s 5F of the Criminal Appeal Act 1912 and until the determination of any appeal that follows the grant of leave pursuant to such application, whichever occurs later.”

2. The background to the District Court criminal proceedings is set out in detail in a judgment of Adamson J given in the Common Law Division on 21 November 2019 (Sayer-Jones v Director of Public Prosecutions (NSW) [2019] NSWSC 1615). By that judgment her Honour quashed convictions of Mr Sayer-Jones of two offences under s 192G(b) of the Crimes Act 1900 (NSW) of making false or misleading statements with intent to defraud. Her Honour held that the relevant statements were made in the course of and for the purposes of civil proceedings in the Local Court and were therefore incapable of being the subject of criminal prosecutions for offences under s 192G(b) (see Jamieson v The Queen (1993) 177 CLR 574; [1993] HCA 48).

3. On 3 March 2021, over 15 months after her Honour’s judgment, the Director of Public Prosecutions (the “DPP”) presented an ex officio indictment against Mr Sayer-Jones charging him with two offences under s 319 of the Crimes Act of making false representations to the Local Court with intent to pervert the course of justice. The representations to be relied upon in the prosecution are the same as those the subject of the convictions that Adamson J quashed. By his judgment referred to in [1] above, Judge King rejected Mr Sayer-Jones’ application for a permanent stay of those proceedings. His Honour found that they are not an abuse of process.

4. Mr Sayer-Jones was, and continues to be, self-represented and is not a lawyer (although he aspires to be one). As a result, his submissions to this Court and to Judge King were, in many respects diffuse and lacking in relevance and clarity. Nevertheless, he identified a kernel of matters that demonstrate that, for the reasons given below, he has an arguable basis for challenging his Honour’s decision.

5. In 2018 Mr Sayer-Jones was charged with a number of offences by Detective Sergeant McLennan (with the prosecution subsequently being taken over by the DPP). These included both the s 192G(b) charges that led to the convictions that Adamson J quashed and the s 319 charges presently before the District Court. As a result of a plea bargain entered on 29 October 2018, the DPP agreed to drop the latter (and other) charges in return for Mr Sayer-Jones’ plea of guilty to the former charges.

6. Mr Sayer-Jones’ chronology provided to this Court states that in the six months prior to the plea bargain:

“Mr Sayer-Jones is subject to a prosecution which is foreclosed under the Jamieson rule [that is under s 192G(b)] and which is subject to objection on thirteen separate occasions. The Jamieson rule is brought to the attention of the prosecutorial authorities repeatedly and incessantly”.

In this Court, counsel for the Crown stated that the correctness of these propositions in the chronology was not contested.

7. At the end of this period Mr Sayer-Jones pleaded guilty to the s 192G(b) charges, as he had promised in the plea bargain, and the remainder were withdrawn. After Mr Sayer-Jones unsuccessfully sought on a number of occasions to obtain the DPP’s agreement to him withdrawing his guilty pleas, he applied to the Local Court for leave to do so on a number of grounds including that the High Court decision in Jamieson indicated that the charges against him under s 192G(b) were flawed. The application was however rejected by Greenwood LCM on 4 April 2019 and convictions on the s 192G(b) charges were entered on 7 June 2019. On 10 April 2019 Mr Sayer-Jones filed a summons in the Supreme Court appealing against his convictions on the s 192G(b) charges. Justice Adamson quashed those convictions on 21 November 2019 (see [2] above).

8. The DPP then reinstated the s 319 charges by filing the ex officio indictment on 3 March 2021. Mr Sayer-Jones argued before this Court that he was entitled to a permanent stay of the s 319 proceedings against him for, in essence, the following reasons, which were put to Judge King but not adequately addressed by him. He submitted that Judge King’s decision to refuse the stay was accordingly liable to be set aside in accordance with the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40.

9. It is well-established that the Court has power to grant a temporary stay of criminal proceedings “to prevent injustice and that the court has a responsibility to avoid unfairness to an accused, if necessary, imposing a temporary stay to avoid such unfairness” (Macdonald v The Queen (2016) 93 NSWLR 736; [2016] NSWCCA 306 at [140]). Such unfairness may arise where proceedings against an accused are an abuse of process (Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 at 47–48).

10. Important to an appellate court’s consideration of whether to grant a temporary stay of pending criminal proceedings is the reluctance of courts to fragment criminal proceedings (see Parker v Taylor (1994) 68 ALJR 496 at 496E; R v Einfeld (2008) 71 NSWLR 31 at 37; [2008] NSWCCA 215 at [23]–[25]). It has been said in this regard that appellate courts “will not interfere with the orderly progress of a first instance trial in the absence of wholly exceptional circumstances” (R v Natoli [2005] NSWCCA 292 at [7]; see also R v Van Phu Ho (Court of Criminal Appeal (NSW), 18 July 1994, unrep) and R vMatovski (1989) 15 NSWLR 720 at 723). The same considerations apply to exercise of the discretion to grant leave to appeal for interlocutory decisions in criminal proceedings (R v Dinh (2000) 120 A Crim R 42 at 48; [2000] NSWCCA 536 at [34]).

11. It must also be acknowledged that even if Mr Sayer-Jones obtained leave to appeal under s 5F and established on appeal that there was error in the primary judgment, he would have to surmount a high barrier to obtain from this Court a permanent stay of the criminal proceedings. In Jago v The District Court of New South Wales at 34, Mason CJ said that to justify a permanent stay of criminal proceedings “there must be a fundamental defect that goes to the root of the trial ‘of such a nature that nothing that a trial judge could do in the conduct of the trial can relieve against its unfair consequences’” (citing Barton v The Queen (1980) 147 CLR 75 at 111 (Wilson J); [1980] HCA 48). In Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [18] the High Court adopted a statement to similar effect. More recently, in a different context but emphasising the “varied circumstances in which the use of the Court’s processes will amount to an abuse”, the plurality judgment in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 referred to the need for a finding that the proceeding in question is “unjustifiably oppressive” or such that “its continuance would bring the administration of justice into disrepute” (at [1] and [45]). As well, the plurality in Williams v Spautz (1992) 174 CLR 509 at 529; [1992] HCA 34 said that “the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances”.

12. With these considerations in mind, I turn to the two factors relevant to the grant of the temporary stay sought by Mr Sayer-Jones, being in essence the prospects of him succeeding on appeal and the balance of convenience.

13. As to the former, Mr Sayer-Jones relied in this Court primarily on the plea bargain he made with the DPP in asserting that it is an abuse of process for the Crown to bring the s 319 charges, they being ones which the Crown agreed, for consideration, not to pursue. On the other hand, the Crown says that the plea bargain is not binding on it, at least because Mr Sayer-Jones breached it by appealing (successfully) against the convictions entered following his pleas of guilty to the s 192G(b) charges.

14. This raises a preliminary question as to the status of a plea agreement. As to that question, the United States Court of Appeals Ninth Circuit held in United States of America v Sandoval-Lopez 122 F 3d 797 at 800 [3-6] (9th Cir 1997), that “[p]lea bargains are contractual in nature and subject to contract-law standards” and that “[w]here a defendant has breached a plea agreement, courts have found the government to be free from its obligations” (ibid). In Australia plea agreements have not however been treated as ordinary contracts. Both parties are, for example, able to seek leave to depart from such an agreement (Maxwell v The Queen (1996) 184 CLR 501 at 515, 526 and 536; [1996] HCA 46). That conclusion reached by the High Court in Maxwell accorded with that of Gleeson CJ in the same case in this Court that a plea agreement was not to be analysed in contractual terms (R v Maxwell (1994) 34 NSWLR 606 at 615E–F; see also Maxwell v The Queen (1996) 184 CLR 501 at 526 (Toohey J)). As Gleeson CJ said, “where what is involved is the due administration of criminal justice, principles applicable to the law of contract are not an appropriate context in which to examine the position of the parties”.

15. The decisions in R v BWM (1997) 91 A Crim R 260 and Feeney v The Queen (2014) 284 FLR 81; [2014] ACTCA 1 are to similar effect, as is the Canadian decision of Nixon v R [2011] 2 SCR 566; 2011 SCC 34. In Nixon, the Supreme Court of Canada rejected an argument that a plea agreement was to be regarded as a contractual undertaking “and enforced just as any other lawyers’ undertaking”. The Court said that this argument “completely ignores the public dimension of a plea agreement” (at [44]).

16. This is not to say that the plea agreement in the present case was irrelevant to Mr Sayer-Jones’ application in the District Court for a permanent stay of the criminal proceedings. Certainly, in light of these authorities, it could not be relied upon as an ordinary contract but it was of central importance to Mr Sayer-Jones’ contention that the s 319 prosecutions were an abuse of process. Of some assistance to him in this regard was Hammond CJ’s finding in R v Lewandowski (2003) 32 SR (WA) 247; [2003] WADC 108 that the criminal proceedings there in question should be stayed as an abuse of process because they conflicted with an undertaking not to prosecute given by the Director of Public Prosecutions. His Honour referred with approval at 255 to the observations of Ormiston J in R v Georgiadis [1984] VR 1030 at 1038 that such undertakings “must be respected and construed bearing in mind the public interest in bringing criminals to justice” and that “[t]his follows not only from any rules of law requiring the observation of promises but also because the systematic disregard would be self-defeating in that sources of information would dry up if it became known that these promises could not be relied upon”. To similar effect, the Supreme Court of Canada in Nixon at [46]–[47] has also noted that honouring plea agreements is not only “ethically imperative” but a “practical necessity” as they dispose of the vast majority of criminal cases, and in doing so, support a fair and efficient criminal justice system.

17. Judge King addressed Mr Sayer-Jones’ reliance on the plea bargain by stating that a plea bargain is “not a contract between the parties, as either may withdraw at any time” and that there was “nothing arising from the entry of the pleas that prevent[ed] the Prosecution from adopting the course elected on as a result”. It is not clear whether his Honour reached this conclusion because the s 192G(b) convictions were flawed by reason of the decision in Jamieson (and that the plea bargain was thereby rendered inoperative) or whether he considered that the prosecution was in any event entitled to elect not to adhere to its withdrawal of the s 319 charges. Moreover, his Honour said that “[t]o the extent that a plea bargain might be argued as analogous to a contract, it is only of effect to the extent that it is adhered to”. It is unclear whether his Honour was indicating by this, and what followed in his judgment, that the plea bargain did not prevent the Crown preferring the s 319 charges because Mr Sayer-Jones breached the plea bargain by appealing against the convictions under s 192G(b) that followed his pleas of guilty on those charges.

18. As well, his Honour appears to have attached some significance to Mr Sayer-Jones’ belief “in advance of entering the pleas” that the intended convictions under s 192G(b) would be flawed. How this was thought to be significant is not apparent and his Honour does not refer to the fact, undisputed at least in this Court, that Mr Sayer-Jones repeatedly brought this belief to the attention of the DPP (see [7] above). It is noted above that in this Court the Crown accepted the accuracy of the chronology entry stated in [6] above and that it was on notice about the Jamieson issue in the proceedings in both the Local Court and the District Court. In any event, part of the foundation for Mr Sayer-Jones’ application for leave to withdraw the pleas made to Greenwood LCM was the proposition that the s 192G(b) convictions would be flawed because of the decision in Jamieson. This occurred before the convictions were entered on 7 June 2019 (see [7] above).

19. In these circumstances, it is arguable that there were errors in Judge King’s approach to the plea bargain issue. First, whilst his Honour was correct to say that the plea bargain was not to be treated as an ordinary contract, his Honour appears not to have had regard to the importance that the plea bargain could assume on the question of whether the prosecution of the s 319 charges ought to be stayed as an abuse of process. Secondly, Judge King was arguably in error in seemingly treating the Crown as at liberty to resile from its withdrawal of the s 319 charges by reason of an alleged breach of the plea agreement by Mr Sayer-Jones in appealing against the s 192G(b) convictions. No precise findings were made as to the terms of the plea agreement but from what is known of it, it simply required Mr Sayer-Jones to plead guilty to the s 192G(b) charges (which he did) but did not, at least not in express terms, preclude him from challenging the convictions which followed from those pleas. The decision in United States of America v Sandoval-Lopez, although inapplicable in Australia to the extent it treats plea bargains as simple contracts (see [14] above), gives some support for the argument that Mr Sayer-Jones’ commitment did not extend that far. In that case, the plea bargain by which the defendants had agreed to plead guilty did not expressly or impliedly contain a general promise not to appeal against their convictions or sentences. As the Court said at 801 [3–6]:

“In short, whatever the prosecution could have bargained for, it chose to require of the defendants only that they not challenge the forfeiture of their property on double jeopardy grounds and that they not appeal their sentences as violative of the mandatory minimum sentence requirement”.

This left the defendants free to make other challenges, including on the basis, which became applicable, “that a change in the relevant substantive law would afford the defendants the right to be released”.

20. Thirdly, it is also arguable that in considering whether there was an abuse of process involved in the Crown seeking to bring the s 319 charges his Honour failed to give proper consideration to the time that elapsed between the quashing of the s 192G(b) charges and the presentment of the indictment on the s 319 charges and the extent to which Mr Sayer-Jones’ convictions on the s 192G(b) charges and any steps taken in pursuance of the convictions, amounted to punishment of Mr Sayer-Jones. This latter consideration gives rise to a question of whether conviction on the s 319 charges might lead to him being punished twice in respect of the same acts (see Pearce v The Queen (1998) 194 CLR 610 at 623–4; [1998] HCA 57; see also R v Sessions [1998] 2 VR 304 at 313; (1997) 95 A Crim R 151 at 160).

21. Finally it is arguable that Judge King erred, first, in dismissing as relevant to the grant of a permanent stay of proceedings that Mr Sayer-Jones had not been reimbursed by the Crown for the $2,000 costs he alleged that he had incurred in the failed prosecution of him under s 192G(b) (see R vMosely (1992) 28 NSWLR 735; 65 A Crim R 452 and R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41) and secondly in regarding himself as bound by Adamson J’s effective dismissal of Mr Sayer-Jones’ costs application (see Judgment of 13 December 2019: [2019] NSWSC 1786).

22. As to the balance of convenience, there are the general considerations of delay in the disposition of criminal proceedings and of fragmentation to which I have referred in [10] above. Nevertheless, neither of these considerations, nor any other matters concerning the balance of convenience, indicate to me that Mr Sayer-Jones should be precluded from advancing the arguable challenges to Judge King’s judgment to which I have referred above. Judge King’s decision to refuse a permanent stay was in substance, though not in legal effect, a final decision on the question of stay (subject to any appeal for which leave was given by this Court). Although proof of a change of circumstances might enable Mr Sayer-Jones to obtain a further hearing in the District Court of an application for a stay, ordinarily a second application will not be entertained. Whilst interruption to the criminal proceedings in the District Court is, as always, regrettable, there is no particular urgency about the matter and in my view justice requires that Mr Sayer-Jones be given an opportunity to advance the arguments to which I have referred.

23. WRIGHT J: I joined in making the orders on 27 April 2022 for reasons which were to the same effect as those of Macfarlan JA.

24. DHANJI J: I joined in the orders made by the Court on 27 April 2022. The reasons given by Macfarlan JA reflect my reasons for joining in the making of those orders.

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Amendments

09 April 2025 - Publication restriction lifted

Decision last updated: 09 April 2025