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Court of Criminal Appeal 1 June 2022

Camelo-Gomez v R

[2022] NSWCCA 108

Homicide
CRIME APPEALS INTERLOCUTORY APPEAL S 5F OF THE CRIMINAL APPEAL ACT WHETHER DELAY WAS UNREASONABLE WHERE DELAY WAS NOT UNREASONABLE

Citation: Camelo-Gomez v R [2022] NSWCCA 108
Court: Court of Criminal Appeal, New South Wales
Date: 1 June 2022
Judge(s): Davies J (with Bellew J and Fagan J agreeing)

Background

The applicant was charged in September 2019 with the murder of her mother at Lansvale on 2 November 2001 — nearly 18 years after the killing. Police had focused on the applicant early in the investigation, and a coronial inquest in 2007 found a violent homicide but could not identify the perpetrator to the criminal standard. The Crown case is largely circumstantial, relying on evidence of financial motive, a romantic relationship the deceased disapproved of, alleged inconsistencies in the applicant's account to police, and conduct said to indicate consciousness of guilt.

Before her trial was due to commence in March 2022, the applicant applied to the trial judge, Wilson J, for a permanent stay of proceedings. She argued that the lengthy delay in charging her was unreasonable, that the proceedings had become oppressive and vexatious, and that continuing them would amount to an abuse of process. Wilson J refused the stay in February 2022.

The applicant sought leave to appeal that refusal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW). The Court granted leave but dismissed the appeal on 4 March 2022. The published judgment sets out the reasons for that dismissal.

  • Whether the nearly two-decade delay between the murder and the laying of charges was unreasonable in the relevant legal sense.
  • Whether the delay caused actual, irremediable prejudice to the applicant's ability to mount a fair defence at trial.
  • Whether aspects of unfairness arising from the delay could be addressed by remedies short of a permanent stay.
  • Whether continuation of the proceedings amounted to an abuse of the court's process such as to warrant a permanent stay.

Decision

Unreasonableness of delay. The Court found that the delay, while lengthy, was not unreasonable in the legal sense required to found a permanent stay. The primary judge had assessed the history of the investigation and concluded that the delay did not reflect mere neglect or improper inaction. The Court of Criminal Appeal found no error in that assessment.

Actual prejudice to the defence. The applicant's arguments focused heavily on alleged police neglect and the personal burden of living under suspicion for years. The Court held, consistent with the High Court's statements in Jago v The District Court of New South Wales (1989) 168 CLR 239, that this focus missed the critical requirement: the applicant needed to demonstrate actual, irremediable prejudice to the conduct of her defence at trial caused by the delay. That had not been established.

Remedies short of a permanent stay. The Court noted that aspects of unfairness identified by the applicant could be addressed at trial through, for example, the use of s 38 of the Evidence Act 1995 (NSW) (which allows a party to cross-examine their own witness in certain circumstances) and appropriate directions. A permanent stay is a remedy of last resort, not a response to difficulties that can be managed within the trial process itself.

Abuse of process. Weighing all relevant factors, including that murder is the most serious offence in the criminal calendar, the Court found the evidence did not establish that continuing the proceedings amounted to an abuse of process. All six grounds of appeal were dismissed.

Orders Made

• Appeal dismissed on 4 March 2022

Key Takeaways

  • A permanent stay of criminal proceedings for delay requires proof of actual, irremediable prejudice to the accused's ability to conduct their defence at trial — personal hardship and alleged investigative neglect alone are not sufficient.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the framework from Jago v The District Court of New South Wales remains the governing authority: the focus must be on concrete unfairness in the trial itself, not the experience of prolonged investigation.
  • The gravity of the offence charged is a relevant consideration in the balancing exercise. The Court noted that murder is the most serious crime in the criminal calendar, a factor that weighs heavily against granting a stay.
  • Where aspects of unfairness arising from delay can be remedied through trial management tools — such as treating witnesses as unfavourable under s 38 of the Evidence Act 1995 or giving appropriate directions — a permanent stay is not warranted.
  • Unreasonableness of delay, for the purposes of a stay application, requires more than a showing that the Crown had substantially the same evidence many years before it laid charges. The applicant must also demonstrate that the delay actually prejudiced the defence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 38

Cases
- Barton v The Queen (1980) 147 CLR 75
- Dawson v R [2021] NSWCCA 117
- Jago v The District Court of New South Wales (1989) 168 CLR 239
- Moti v The Queen (2011) 245 CLR 456
- R v Camelo-Gomez [2022] NSWSC 136 (decision under appeal)
- R v Tolmie (7 December 1994, NSWCCA, Unreported)
- Rogers v The Queen (1994) 181 CLR 251
- Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325
- The Queen v Glennon (1992) 173 CLR 592
- Walton v Gardiner (1993) 177 CLR 3
- Williams v Spautz (1992) 174 CLR 509