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…

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.

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Details

Case: [2022] NSWCCA 99
Decision Date: 18 May 2022

CaseChat Overview and Summary

The appellant, Sayer-Jones, sought a temporary stay of proceedings under s 5F of the Criminal Appeal Act 1912 to enable him to seek leave to appeal against a decision of the District Court refusing a permanent stay application. The dispute involved the Crown's decision to reinstate charges against Sayer-Jones that it had previously agreed not to prosecute as part of a plea bargain. Sayer-Jones argued that this amounted to an abuse of process and that the plea bargains constituted a form of contractual undertaking.

The primary legal issue before the court was whether plea bargains are a form of contractual undertaking and, if so, whether there was an arguable case that the Crown had abused its process by reinstating charges that it had agreed not to prosecute. The court also needed to consider whether the balance of convenience favoured granting a temporary stay to allow the appellant to seek leave to appeal.

The court held that plea bargains are not contractual undertakings but rather represent an agreement between the Crown and the accused regarding the prosecution of charges. Nevertheless, the court found that there was an arguable case that the Crown's actions amounted to an abuse of process. In assessing whether to grant a temporary stay, the court considered the prospects of success of the appeal and the balance of convenience. Given the arguable nature of the abuse of process claim and the potential consequences for the appellant, the court concluded that the balance of convenience favoured granting a temporary stay.

The final orders included a temporary stay of proceedings to allow the appellant to seek leave to appeal the District Court's decision, with specific conditions to protect the interests of both parties.

Orders