Citation: Adams v Director of Public Prosecutions [2016] NSWCCA 253
Court: Court of Criminal Appeal, New South Wales
Date: 11 November 2016
Judge(s): Leeming JA; Rothman J; R A Hulme J
Background
The accused was on trial in the District Court for sexually assaulting a 14-year-old girl who had been in care. After the complainant had substantially completed her cross-examination, defence counsel obtained new documentary material through subpoena. The trial judge granted leave for further cross-examination of the complainant on that material.
However, medical evidence then emerged indicating the complainant had engaged in serious self-harm and was suffering from multiple diagnosed conditions. Her treating doctor advised she was mentally unable to cope with returning to court and that her prognosis would not improve in the short or medium term. The trial judge declined to compel the complainant's attendance, and the Crown instead adduced the substance of the new material through other witnesses.
The defence applied for a permanent stay of the proceedings, arguing the accused had been denied a fair trial. The trial judge refused both a permanent and a temporary stay. The defence then filed an interlocutory appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) and brought a notice of motion in the Court of Criminal Appeal seeking a temporary stay while that appeal was determined.
Legal Issues
- Whether a temporary stay of the District Court trial should be granted pending determination of the s 5F interlocutory appeal against the refusal of a permanent stay.
- Whether the grounds of the s 5F appeal disclosed an apparent error by the trial judge, engaging the principles from House v King (1936) 55 CLR 499.
- How the balance of convenience applied given the trial had already reached the closing address stage.
Decision
The Court of Criminal Appeal dismissed the notice of motion immediately after argument and provided written reasons shortly after. The Court observed that it was necessary to assess both the apparent strength of the underlying s 5F appeal and the balance of convenience, even though the motion did not finally determine that appeal.
On the strength of the appeal, the Court noted that the trial judge's reasons directly addressed the complaints raised in the grounds of appeal. None of the grounds identified, on their face, an error of the kind required to engage the House v King principles applicable to the exercise of a discretion. The accused had therefore not made out a strong case of error.
On the balance of convenience, the Court noted the trial had reached an advanced stage: defence counsel was actually addressing the jury at the time the motion was heard. Granting a stay would interrupt either closing addresses or the summing-up. More significantly, even if the s 5F appeal ultimately succeeded, the practical consequence would not be that the complainant was recalled. Instead, the jury would be discharged and the question of a new trial would arise.
The Court also observed that refusing the stay carried no prejudice if the jury acquitted or failed to reach a verdict. In those circumstances, a temporary stay would only have denied the accused a chance of a favourable outcome. If a guilty verdict were returned, the same arguments could be raised in an appeal from conviction. Together, these factors made the case a clear one for refusing the temporary stay.
Orders Made
- The notice of motion seeking a temporary stay was dismissed.
Key Takeaways
- In assessing a temporary stay pending a s 5F interlocutory appeal, the Court considered both the apparent prospects of the underlying appeal and the balance of convenience as the two principal factors.
- A refusal of a permanent stay by a trial judge will not readily be disturbed on appeal unless the grounds of challenge identify an error engaging the House v King principles applicable to the exercise of a discretionary judgment.
- Where a complainant becomes unable to return for further cross-examination due to serious ill-health, that circumstance does not automatically give rise to an unfair trial requiring a permanent stay, consistent with the approach in R v McCarthy that witnesses may become unavailable for many reasons without necessarily defeating a fair trial.
- Refusing a temporary stay did not prejudice the accused in all possible outcomes: an acquittal or hung jury would favour him, while a conviction could ground a fresh appeal raising the same points.
- Intervening in a criminal trial that has reached the closing address stage is described by the Court of Criminal Appeal as most unusual and requires a compelling reason to be established.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
Cases
- House v King (1936) 55 CLR 499
- R v McCarthy (unreported, NSWCCA, 12 August 1994)
- Subramaniam v The Queen [2004] HCA 51; 211 ALR 1
- TS v R [2014] NSWCCA 174