Citation: R v Johnson [2001] NSWCCA 465
Court: NSW Court of Criminal Appeal
Date: 23 November 2001
Judges: Hodgson JA, Simpson J, Barr J (Barr J writing, others agreeing)
Background
The respondent faced a six-count indictment in the District Court arising from alleged events in 1994 and 1995. The Crown alleged that after two associates handed property (including cash and a firearm) to police, the respondent and a co-accused detained those associates at gunpoint, threatened to kill them, assaulted one, and took cash and a firearm from one of the complainants.
Between committal in September 1996 and April 2001, the trial was listed for hearing on at least eight occasions but never commenced. Delays were attributable to a mix of factors: some caused by the Crown (including late service of evidence), some by the respondent (including counsel unavailability and a back injury), and some by external circumstances (a co-accused's separate Melbourne trial and a judge's unavailability).
By April 2001, both the respondent and his co-accused had been refused legal aid. The respondent's solicitor deposed that the respondent had become impecunious due to costs thrown away over years of interlocutory proceedings, was suffering deteriorating health, and could no longer fund adequate legal representation. On that basis, the respondent moved for a permanent stay, which the District Court judge (Stewart ADCJ) granted. The Crown appealed.
Legal Issues
- Whether the District Court's permanent stay of the criminal proceedings was justified on the grounds that continuation would constitute an abuse of process.
- Whether the respondent's financial circumstances, health, and the history of delay individually or collectively met the high threshold required for a permanent stay.
- What orders, if any, the Court of Criminal Appeal should make in place of the stay.
Decision
Barr J (with Hodgson JA and Simpson J agreeing) set aside the permanent stay, finding that the high threshold for such an order had not been met. A permanent stay is a drastic remedy, and the principles from Jago v The District Court of NSW (1989) 168 CLR 23 make clear that it is reserved for cases where continuation of proceedings would seriously undermine public confidence in the administration of justice, or where the accused faces genuine and irreparable prejudice to a fair trial.
On the delay point, the court found that the respondent had contributed in a not insignificant way to the accumulated delay. Critically, the passage of time itself had not impaired the respondent's ability to meet the Crown case at trial: no witnesses had died or become unavailable, and no evidence had been lost. This distinguished the case from R v Nicholson (1998) 102 A Crim R 459, which the respondent had relied on by analogy.
On the legal aid and financial hardship point, the court found the evidence was insufficient to support the conclusion that the respondent could not obtain adequate legal representation. The respondent had not appealed the legal aid refusal, and the evidence about his financial position was described as absent or unsatisfactory. The court declined to treat impecuniosity alone, in the absence of demonstrated trial prejudice, as a basis for permanently staying proceedings.
The Court of Criminal Appeal acknowledged that the Crown's conduct, particularly its late service of substantial material in July 2000 and its failure to serve tapes in 1999, had contributed to the situation. Barr J observed that a costs order against the Crown (as a condition of any earlier adjournment) might have been an appropriate remedy at the time. However, the court declined to formulate such an order itself, noting that the evidence before it was too thin to do so properly.
Orders Made
- The permanent stay order made by Stewart ADCJ in the District Court was vacated.
Key Takeaways
- A permanent stay of criminal proceedings requires satisfaction of a high threshold. Financial hardship and delay, without demonstrable prejudice to the accused's ability to receive a fair trial, will generally not suffice.
- Where an accused has contributed to the delay giving rise to a stay application, that contribution weighs against the exercise of the discretion to stay.
- The Court of Criminal Appeal distinguished R v Nicholson, confirming that factual similarity to a prior stay case must be genuine and substantial before that precedent carries weight: superficial resemblance in procedural history is insufficient.
- Failure to appeal a refusal of legal aid is relevant to whether an accused has exhausted available avenues before seeking a stay on the basis of inability to fund representation.
- Where Crown conduct has caused costs to be thrown away (such as through late service of evidence), a costs order against the Crown as a condition of an adjournment may be an appropriate remedy at the time, but an appellate court may decline to formulate such relief retrospectively where the evidential foundation is inadequate.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW) s 5F(5)
- Legal Aid Commission Act 1979 (NSW) s 57
Cases:
- Jago v The District Court of New South Wales (1989) 168 CLR 23
- Barton v The Queen (1980) 147 CLR 75
- Moevao v The Department of Labour [1980] 1 NZLR 482
- R v Nicholson (1998) 102 A Crim R 459