Citation: R v Medich (No 1) [2014] NSWSC 1841
Court: Supreme Court of New South Wales
Date: 25 July 2014
Judge(s): Bellew J
Background
The accused faced a criminal trial scheduled to commence on 25 August 2014. Prior to that date, an application for a permanent stay of the trial was made on the accused's behalf. Bellew J heard evidence and submissions on that stay application over several days, with judgment on the application reserved at the time of this decision.
Following the conclusion of the stay hearing, counsel for the applicant raised the question of whether the upcoming trial date should be vacated, prompting the parties to exchange correspondence on the point. The matter was listed before Bellew J to hear the parties on that discrete procedural question.
A suppression order had previously been made prohibiting publication of matters that could identify the existence of the permanent stay application. That order remained in force and was extended to cover the reasons given for vacating the trial date, though it did not suppress the bare fact of the vacation itself.
Legal Issues
- Whether the proposed trial date of 25 August 2014 should be vacated in light of the pending judgment on the permanent stay application and the likelihood of an appeal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912.
Decision
Bellew J accepted the practical reality that whichever party lost on the stay application could be expected to bring an appeal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912. The compressed timeframe between the reserved judgment and the scheduled trial date made it virtually impossible for the Court of Criminal Appeal to convene, hear, and determine such an appeal before 25 August 2014.
Both parties agreed the trial date should be vacated, and Bellew J concurred. His Honour acknowledged the significant consequences of the decision: the administrative burden of a lengthy trial, the position of Crown witnesses already on notice to appear, the interests of the deceased's family in achieving closure, and the accused's own interest in proceeding to trial promptly. Notwithstanding all of these considerations, the court found there was no practicable alternative.
Rather than setting a specific mention date for the future conduct of the matter, Bellew J left it to the parties to contact his associate when the matter was ready to return, given the uncertainty around the timeline for any appellate proceedings arising from the stay application.
Orders Made
- The trial date of 25 August 2014 is vacated.
Key Takeaways
- Where a reserved judgment on a permanent stay application is pending and an appeal under section 5F of the Criminal Appeal Act 1912 is a foreseeable consequence, a trial date may be vacated if the appellate process cannot realistically be completed before trial is due to commence.
- Bellew J weighed the interests of multiple parties, including witnesses, the deceased's family, and the accused, but concluded that practical constraints left no alternative to vacation of the date.
- A suppression order covering the reasons for the vacation decision does not necessarily extend to the bare fact that a trial date has been vacated; the two are severable.
- No substitute trial date was fixed. The Supreme Court instead allowed the parties to relist the matter once the outcome of any appellate proceedings became clearer.
- Section 5F of the Criminal Appeal Act 1912 permits an appeal to the Court of Criminal Appeal on certain interlocutory rulings, and the anticipated exercise of that right was central to the court's reasoning here.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), section 5F
Cases:
- No cases were cited in the judgment.