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Court of Criminal Appeal 27 August 2018

Director of Public Prosecutions (NSW) v Browne

[2018] NSWCCA 188

Sexual offences
CRIMINAL LAW PROCEDURE PERMANENT STAY EXCEPTIONAL NATURE OF JURISDICTION

Citation: Director of Public Prosecutions (NSW) v Browne [2018] NSWCCA 188
Court: Court of Criminal Appeal, New South Wales
Date: 27 August 2018
Judge(s): Gleeson JA; Walton J; Fagan J (all agreeing)

Background

The respondent faced four counts of indecent assault alleged to have occurred between 1983 and 1990 against a single complainant, who was a child at the time of the earliest alleged offences. The charges arose from a police report made in 2014 and included evidence of a covertly recorded telephone call in which the respondent said he could not recall touching the complainant inappropriately, but was "not saying I didn't."

The first trial was aborted after the Crown Prosecutor fell ill mid-hearing. At the second trial, the jury returned not guilty verdicts on two of the four counts but was unable to agree on the remaining two. The Crown then presented a fresh indictment on those two unresolved counts.

The respondent applied to the District Court for a permanent stay of the third set of proceedings. The primary judge granted the stay, finding that a third trial would be unfair and oppressive to the respondent. The Director of Public Prosecutions appealed that decision to the Court of Criminal Appeal.

  • Whether the primary judge applied the correct legal test in granting a permanent stay on the grounds of unfairness and oppression to the accused.
  • Whether a third trial, following one aborted trial and one hung jury, constituted an exceptional case justifying the permanent stay of criminal proceedings.
  • Whether the balancing of the respondent's personal interests against the public interest in prosecution was correctly performed by the primary judge.

Decision

The Court of Criminal Appeal allowed the DPP's appeal and set aside the permanent stay. Gleeson JA (with Walton J and Fagan J agreeing) found that the primary judge had misapplied the relevant test by failing to give adequate weight to the exceptional nature of the jurisdiction to permanently stay criminal proceedings.

The Court confirmed that a permanent stay is a remedy of last resort. The jurisdiction to grant one exists only where, on balance, proceeding to trial would be so fundamentally unfair or oppressive that no other remedy could adequately address it. That threshold is high, and the onus rests firmly on the accused to demonstrate the case truly falls within that exceptional category.

The Court acknowledged the respondent's personal circumstances: he was 55 years old, of good character, had incurred legal costs exceeding $150,000 (having received only $10,000 under his Suitors' Fund certificate from the first trial), and faced proceedings concerning alleged events from 18 to 34 years earlier. These matters warranted genuine consideration.

However, when balanced against the legitimate public interest in bringing serious allegations of indecent assault to trial, and the need to maintain public confidence in the administration of justice, the Court found the respondent had not demonstrated that this was an exceptional case. The Court distinguished the decision in R v Lazarus, where a third trial was refused partly because the accused had already served a period of imprisonment following a previously successful appeal. No comparable circumstances existed here. On the overall balancing exercise, the case did not reach the threshold required for a permanent stay.

Orders Made

  • Appeal allowed.
  • Stay ordered by the District Court on 16 May 2018 set aside.
  • Respondent's notice of motion filed 18 January 2018 dismissed.

Key Takeaways

  • The jurisdiction to permanently stay criminal proceedings is exceptional in nature, and courts must approach applications for such relief with considerable caution.
  • A permanent stay requires the accused to demonstrate, on balance, that proceeding would be so fundamentally unfair or oppressive that no other remedy suffices; cost, stress, and the passage of time alone are insufficient to meet that threshold.
  • Where a jury in a prior trial has been unable to agree on certain counts, the Crown is not automatically precluded from proceeding to a further trial on those counts, even where the same jury returned not guilty verdicts on related counts.
  • Personal hardship factors such as legal costs incurred, age, good character, and the age of the alleged offences are relevant to the balancing exercise but must be weighed against the public interest in prosecution and the maintenance of confidence in the justice system.
  • The Court distinguished R v Lazarus [2017] NSWCCA 279, in which oppression was found partly because the accused had already served a custodial sentence after a successful appeal: that specific circumstance has no equivalent in the mere fact of prior aborted and hung-jury trials.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61E(1)
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 104
- Criminal Procedure Act 1986 (NSW), s 293
- Suitors' Fund Act 1951 (NSW), s 6A

Cases:
- Jago v District Court of NSW (1989) 168 CLR 23
- House v The King (1936) 55 CLR 499
- R v King (2003) 59 NSWLR 472
- Calleija v R [2012] NSWCCA 37
- R v Lazarus [2017] NSWCCA 279
- Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
- Barton v The Queen (1980) 147 CLR 75
- Dupas v The Queen (2010) 241 CLR 237
- R v Glennon (1992) 173 CLR 592
- Agius v The Queen (2011) 80 NSWLR 486
- R v Markuleski (2001) 52 NSWLR 82