Citation: Derley v R [2016] NSWCCA 60
Court: Court of Criminal Appeal, New South Wales
Date: 22 April 2016
Judge(s): Payne JA (primary reasons); Price J and Adamson J (agreeing)
Background
The appellant was charged in the District Court with supplying a commercial quantity of cocaine and knowingly dealing with the proceeds of crime, offences alleged to have occurred in June and December 2010. The prosecution relied heavily on a key witness (referred to throughout as "Witness X") who had been working with a joint NSW Police and NSW Crime Commission taskforce at the relevant time.
The path to trial was unusually protracted. The charges were initially dismissed at committal in February 2012. A first ex officio indictment was notified but never signed, and multiple "no bill" applications were made by the defence. A second ex officio indictment eventually brought the matter back before the District Court in 2015, more than five years after the alleged offences.
The appellant applied for a permanent stay of proceedings, arguing that the conduct of NSW Police, the NSW Crime Commission, and the Office of the DPP, particularly in their dealings with Witness X and in failing to make timely disclosure of those dealings, had caused him irremediable prejudice such that a fair trial was no longer possible.
Legal Issues
- Whether the primary judge erred in refusing a permanent stay of proceedings on the basis of abuse of process
- Whether the appellant could receive a fair trial given alleged prejudice arising from prosecutorial and police conduct
- Whether the conduct of officers from NSW Police, the NSW Crime Commission, and the DPP in managing and disclosing arrangements with Witness X rendered the proceedings unfairly oppressive
- Whether the events of May 2013 in the District Court (including a purported order discharging the accused and a "no bill" decision) created a bar to the re-institution of proceedings
- Whether fresh evidence (a letter from the DPP to defence lawyers, received after judgment below) altered the outcome on appeal
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Payne JA, with Price J and Adamson J agreeing, found that the appellant had not identified any error of the kind described in House v The King (1936) 55 CLR 499, the standard applied when reviewing a discretionary decision. The primary judge's refusal of a permanent stay was the product of a careful and thorough weighing of competing considerations, and no basis for appellate interference was established.
The Court confirmed that a permanent stay is a remedy of last resort. To obtain one, a court must be satisfied that continuing the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process, following R v Edwards [2009] HCA 20. The appellant's complaints, however serious, did not meet that threshold.
The Court emphasised that the concerns raised by the defence were not beyond remedy through ordinary case management techniques available to the trial judge. Where prejudice arising from disclosure failures or delay can be addressed at trial, a permanent stay is not the appropriate response.
On the events of May 2013, the Court accepted the primary judge's reasoning that, whatever the precise nature of the order purportedly made when no indictment was before the court, the process created no bar to re-institution of the prosecution. The "no bill" decision brought the earlier proceedings to an end without any adjudication on the merits. The fresh evidence admitted on appeal, a letter from the DPP detailing a teleconference with Witness X on 15 October 2015, did not alter this conclusion.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a permanent stay of criminal proceedings is reserved for cases where continuation would be unacceptably unjust, unfair, or oppressive, and will not be granted merely because the prosecution has been conducted imperfectly or has caused the accused to incur costs.
- A balancing of competing considerations underlies the discretion to grant or refuse a permanent stay, and an appellate court will not interfere with that discretion unless the primary judge made an identifiable error of the House v The King kind.
- Where alleged prejudice from disclosure failures or delay can be addressed through case management tools available to the trial judge, that weighs against granting a permanent stay.
- Bringing earlier proceedings to an end through a "no bill" decision, without adjudication on the merits, creates no double jeopardy bar to re-institution of a prosecution.
- In dismissing the appeal, the Court declined to resolve the precise scope of the DPP's power to discontinue proceedings on an ex officio indictment that had been notified but on which the accused had not yet been arraigned, finding it unnecessary to do so on the facts.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 193B (dealing with proceeds of crime)
- Criminal Appeal Act 1912 (NSW), s 5F (leave to appeal against interlocutory orders)
- Criminal Procedure Act 1986 (NSW), s 62 (committal dismissal)
- Director of Public Prosecutions Act 1986 (NSW), s 7
- Drug Misuse and Trafficking Act 1985 (NSW), s 25 (supply of prohibited drug)
Cases
- House v The King (1936) 55 CLR 499
- R v Edwards [2009] HCA 20; 83 ALJR 717
- Jago v The District Court of New South Wales (1989) 168 CLR 23
- R v Carroll (2002) 213 CLR 635
- Williams v Spautz (1992) 174 CLR 509
- R v Rogers (1994) 181 CLR 251
- Yang v R [2012] NSWCCA 49; 219 A Crim R 550
- R v Baker [2000] NSWCCA 85
- Calleija v R [2012] NSWCCA 37; 223 A Crim R 391
- TS v R [2014] NSWCCA 174
- R v Burrell [2004] NSWCCA 185
- R v BWM (1997) 91 A Crim R 260
- Broome v Chenoweth (1947) 73 CLR 583