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Court of Criminal Appeal 5 February 2019

R v Nash

[2019] NSWCCA 14

Public order & justice offences
CRIMINAL LAW PROCEDURE TEMPORARY STAY GRANTED

Citation: R v Nash [2019] NSWCCA 14
Court: Court of Criminal Appeal, NSW
Date: 5 February 2019
Judges: Simpson AJA; Button J; Lonergan J

Background

The applicant had been arrested in October 2011 and charged with driving under the influence of alcohol and resisting arrest. At a Local Court hearing in May 2012, he gave evidence that he had consumed no more than three schooners of light beer before the arrest. The magistrate acquitted him of both charges.

The applicant later sued the State for unlawful arrest, assault, and malicious prosecution in the District Court. He again gave evidence about his alcohol consumption that day, and the District Court found in his favour, awarding substantial damages.

Following further investigation, the applicant was charged on a four-count indictment: two counts of perjury (one relating to evidence given in the Local Court criminal proceedings, the other to evidence given in the civil proceedings), one count of tampering with evidence, and one count of perverting the course of justice. The latter two counts concerned CCTV footage from the golf club. The trial was set to commence on 29 January 2019. The applicant applied for a permanent stay of the first perjury count, arguing that prosecuting him for evidence given in the very proceedings in which he was acquitted would impermissibly call that acquittal into question. The District Court rejected both the permanent stay application and a subsequent application for a temporary stay. The applicant then sought a temporary stay from the Court of Criminal Appeal while his leave to appeal application was determined.

  • Whether the Court of Criminal Appeal had jurisdiction to grant a temporary stay of District Court proceedings pending the determination of a leave to appeal application under s 5F(3) of the Criminal Appeal Act 1912 (NSW).
  • Whether the applicant had a sufficiently arguable case that prosecuting him on the first perjury count would breach double jeopardy principles by calling into question his earlier acquittal, as established in Garrett v The Queen and affirmed in The Queen v Carroll.
  • Whether the possibility of appealing any future conviction was an adequate alternative remedy that weighed against granting the temporary stay.

Decision

The Court confirmed its inherent power to grant a temporary stay to prevent injustice, drawing on the principles affirmed in Macdonald v R; Maitland v R [2016] NSWCCA 306. That power exists to avoid unfairness to an accused, and a stay will only be granted to the extent necessary to relieve against unfair consequences.

The Court accepted that the applicant had an arguable case. The double jeopardy principle, as stated in Garrett, holds that an acquittal cannot be called into question by evidence that would, if accepted, overturn or tend to overturn that verdict. The precise boundaries of that principle remain unsettled, as acknowledged in Carroll, and the Court found that the interaction between a perjury prosecution and a prior acquittal raised genuinely complex questions warranting proper appellate consideration.

The Crown's argument that the applicant could simply appeal any eventual conviction was rejected. The Court reasoned that proceeding to trial on all four counts carried a strong likelihood that any conviction on counts two to four would be contaminated by evidence relevant to the first count, regardless of the outcome on that count. The risk of that taint arising was itself sufficient to justify a temporary stay across the entire indictment.

The Court granted the temporary stay, staying all further proceedings on the indictment until further order of the Court of Criminal Appeal.

Orders Made

  • Further proceedings on the indictment be stayed until further order of the Court of Criminal Appeal.

Key Takeaways

  • The Court of Criminal Appeal confirmed its inherent power to grant a temporary stay of District Court proceedings to prevent injustice, including where a leave to appeal application under s 5F(3) of the Criminal Appeal Act 1912 raises complex and unresolved legal questions.
  • A temporary stay of the whole indictment may be warranted where proceeding to trial on some counts risks tainting any conviction on other counts, even if the contested count itself does not result in conviction.
  • The availability of appeal after conviction is not automatically sufficient reason to refuse a temporary stay, particularly where the unfairness may arise from the trial process itself rather than its outcome.
  • Under the principle in Garrett v The Queen, an acquittal cannot be called into question by evidence that would overturn or tend to overturn the verdict; the Court of Criminal Appeal found that a perjury charge based on evidence given in criminal proceedings that resulted in an acquittal raises at least an arguable case that this principle would be breached.
  • The boundaries of the Garrett double jeopardy principle remain unsettled following The Queen v Carroll, reinforcing that prosecutions touching on prior acquittals can raise sufficiently complex questions to justify temporary intervention by an appellate court.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Crimes Act 1900 (NSW), ss 317(a), 319, 327(1)

Cases
- Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67
- The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
- Macdonald v R; Maitland v R [2016] NSWCCA 306