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Court of Criminal Appeal 18 May 1999

R v HOULTON

[1999] NSWCCA 100

Fraud & dishonesty
CRIMINAL LAW INDICTMENT

Citation: R v Houlton [1999] NSWCCA 100
Court: Court of Criminal Appeal, New South Wales
Date: 18 May 1999
Judges: James J, Barr J, Carruthers AJ

Background

The applicant was a former solicitor charged with 85 counts of fraudulent misappropriation totalling more than $400,000, alleged to have occurred between August 1989 and September 1992. He was committed for trial in October 1994, but the matter suffered repeated adjournments over several years. Three separate trial dates were vacated, due variously to a misunderstanding about the mode of trial, insufficient court time, a no-bill application, and new psychiatric material concerning the applicant's health.

By the time the matter came before the District Court, the applicant applied for a permanent stay of the proceedings. He argued that the passage of time had prejudiced his ability to mount a defence, that his health had deteriorated, and that he was effectively without legal representation because he could not afford a $2,000 contribution required under his legal aid grant.

Judge Bell refused the stay. The applicant then sought leave to appeal that interlocutory refusal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act.

  • Whether leave to appeal should be granted against an interlocutory order refusing a permanent stay of proceedings, given the applicable threshold test.
  • Whether the District Court judge erred in finding that the delay had not caused sufficient prejudice to the applicant's ability to conduct his defence.
  • Whether the applicant's financial circumstances and effective lack of legal representation were matters that warranted granting a permanent stay.
  • Whether the proposed appeal had sufficient prospects to justify intervention at the interlocutory stage.

Decision

The Court of Criminal Appeal applied the established test for granting leave to appeal an interlocutory decision: leave is available only where the decision is attended by sufficient doubt to warrant argument on appeal, or where the interests of justice otherwise require the Court's intervention at that stage. The Court found neither condition was satisfied here.

Barr J, with whom James J and Carruthers AJ agreed, examined each of the challenges to Judge Bell's reasoning. The Court found that the trial judge had correctly identified the governing principles, drawn from the High Court decisions in Jago v District Court and Walton v Gardiner. A permanent stay is available only in exceptional cases where unreasonable delay will necessarily produce an unfair trial, or where continued proceedings would be so oppressive as to amount to an abuse of process.

On the question of prejudice, the Court accepted Judge Bell's conclusion that the delay had not in fact impaired the applicant's ability to conduct his defence. Significantly, by the time of the appeal hearing the Crown had indicated it would call only the original 39 witnesses rather than the expanded list of approximately 100, reducing one of the applicant's central concerns. On the legal aid contribution issue, the Court found that Judge Bell had plainly turned his mind to the applicant's financial position and that the findings on this point did not reveal any error of principle.

The Court noted that the history of the matter reflected poorly on the administration of the case, with Carruthers AJ adding that without proper special case management the proceedings risked becoming, in his words, "a blot on the escutcheon of the criminal justice system." Nevertheless, the refusal of the stay fell within the bounds of the trial judge's discretion, and the proposed appeal was considered unlikely to succeed.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A permanent stay of criminal proceedings is available only in exceptional circumstances: where unreasonable delay will necessarily produce an unfair trial, or where continuation of proceedings would be so oppressive as to constitute an abuse of process, per Jago v District Court (1989) 169 CLR 123 and Walton v Gardiner (1992-1993) 177 CLR 378.

  • Leave to appeal an interlocutory refusal of a stay under section 5F of the Criminal Appeal Act requires the applicant to demonstrate that the decision is attended by sufficient doubt, or that the interests of justice require the Court's intervention before final determination.

  • Substantial delay attributable partly to the court system and partly to events arising close to trial dates does not automatically establish the level of prejudice required to warrant a permanent stay; actual prejudice to the conduct of the defence must be demonstrated.

  • In dismissing the leave application, the Court of Criminal Appeal nonetheless endorsed calls for rigorous special case management, treating the absence of such management as a systemic concern rather than a ground for staying proceedings.

  • A defendant's financial difficulty in meeting a legal aid contribution does not, without more, justify a permanent stay; the trial court is required to turn its mind to the applicant's financial position, but the existence of hardship does not of itself render continuation of proceedings an abuse of process.

Legislation and Cases Referenced

Legislation
- Section 5F, Criminal Appeal Act (NSW)

Cases
- Jago v District Court (1989) 169 CLR 123
- Walton v Gardiner (1992-1993) 177 CLR 378
- R v Steffan (1993) 30 NSWLR 633
- R v Matovski (1989) 14 NSWLR 720
- R v Carter, Court of Criminal Appeal, 5 September 1995 (unreported)
- R v Nicholson, Court of Criminal Appeal, 22 July 1998 (unreported)