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Local Court 12 July 2022

NSW Police v Mundall

[2022] NSWLC 4

Public order & justice offences
CRIMINAL PROCEDURE PERMANENT STAY OF PROCEEDINGS COSTS

Citation: NSW Police v Mundall [2022] NSWLC 4
Court: Local Court of New South Wales
Date: 12 July 2022
Judge(s): Nash LCM, Kempsey Local Court

Background

The accused faced 30 criminal charges, comprising three original sequences and 27 additional charges added shortly before what was intended to be the final hearing. The original three charges, relating to events alleged to have occurred in November 2020 at Kundabung, were first before the court in November 2020. The 27 additional charges arose from a 41-page complainant statement served on the accused on or around 3 June 2022, prepared under a new officer in charge after two previous officers had left the police force.

The proceedings had a prolonged history. Hearings were vacated on three occasions: first in May 2021 due to the officer in charge being on sick leave and outstanding tendency evidence issues, then in January 2022 due to the Covid-19 pandemic pursuant to a Chief Magistrate's Memorandum, and again in June 2022 following the laying of the 27 fresh charges. None of the delay was attributed to any action or inaction by the accused.

The accused applied for a permanent stay of all 30 charges on the basis of the delay, associated financial hardship, and other personal consequences flowing from the charges. He also separately sought dismissal of the original three sequences, and reserved a costs claim arising from the vacated hearings.

Legal Issues

  • Whether the original three charge sequences (sequences 1 to 3) should be dismissed independently of the permanent stay application
  • Whether the cumulative circumstances of the proceedings, including delay, financial hardship, personal consequences, and prosecutorial conduct, met the exceptional threshold required to justify a permanent stay of all 30 charges
  • Whether costs should be awarded to the accused in connection with the multiple vacated hearings, and which provisions of the Criminal Procedure Act 1986 applied

Decision

Dismissal of Sequences 1 to 3: The court declined to dismiss the first three charge sequences independently of the stay application. The accused's argument rested on the proposition that, but for the Covid-19 memorandum, the January 2022 hearing would have proceeded and would likely have been dismissed due to witness non-attendance. The court found this analysis to be hypothetical and rejected the suggestion that dismissal was inevitable, holding it inappropriate to speculate about what might have occurred at a hearing that never took place (at [19]-[20]).

Delay: The court accepted that approximately 557 days had elapsed between commencement of proceedings and service of the 41-page complainant statement, and that none of that delay was caused by the accused (at [27], [29]). Even setting aside the six months attributable to the pandemic, the remaining 18-month delay was characterised as excessive. The court nevertheless found the delay alone insufficient to justify a permanent stay, as it did not place the matter in a special or exceptional class relative to other pending matters (at [29]).

Other Factors Raised by the Accused: The court assessed each ground put forward individually. Financial hardship was accepted as relevant and given some weight, but was not determinative alone (at [33]). The complainant's alleged refusal to allow the accused access to his children was not a basis for a stay, given that legal avenues to address that issue remained available (at [34]). The effect on the accused's involvement with the Seventh Day Adventist Church and associated accommodation was characterised as a consequence of the charges themselves rather than a factor capable of justifying a stay (at [35]). The prosecutor's prospects, the nature of the offences, and the complainant's alleged motivations were all matters the court considered properly reserved for the final hearing and could be given no meaningful weight on the stay application (at [30]-[32]).

Permanent Stay Application Overall: The court conducted a balancing exercise, considering the grounds both individually and cumulatively (at [37]). It concluded that the matter came close to, but fell short of, the exceptional circumstances required to justify a permanent stay (at [38]). The continuation of proceedings was not found to be manifestly unfair or oppressive, nor would it bring the administration of justice into disrepute (at [39]). The public interest in resolving the charges on their merits weighed against granting the stay (at [40]). The application was dismissed (at [43]).

Costs: The costs question was reserved for further argument. The court indicated it would need submissions from the parties on the applicability of sections 214 and 216 of the Criminal Procedure Act 1986, as well as clarification of the quantum and precise scope of the accused's costs claim (at [47]).

Orders Made

  • The accused's application for a permanent stay of the proceedings is dismissed
  • Costs reserved

Key Takeaways

  • A permanent stay of criminal proceedings requires exceptional circumstances, and a high threshold applies: in this instance, even a combination of prolonged delay, financial hardship, lost employment and accommodation, and multiple vacated hearings fell just short of that threshold (at [37]-[39]).
  • Delay of approximately 18 to 24 months, while accepted as excessive and caused entirely by the prosecution side, was not in itself sufficient to justify a permanent stay where the matter did not stand in a clearly special or exceptional class relative to other pending proceedings (at [29]).
  • Grounds such as a complainant's alleged motivations, the prospects of the prosecution case, and the objective seriousness of the charges are matters reserved for the final hearing and carry no meaningful weight in a permanent stay application where the complainant's evidence remains untested (at [30]-[32]).
  • The Local Court confirmed it has the power to order a permanent stay of criminal proceedings, drawing on the established principle in DPP v Shirvanian and consistent with the court's general power to ensure fairness in proceedings (at [25]-[26]).
  • Refusing a permanent stay does not foreclose future applications: the court explicitly noted that its conclusions might differ if a further application to vacate the hearing were made, given the history of the matter, and that any such application would be assessed on its own merits including any changed circumstances (at [41]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Evidence Act 1995 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
- Calleija v Regina [2012] NSWCCA 37
- Darwiche v R [2011] NSWCCA 62
- DPP v Shirvanian (1998) 44 NSWLR 129
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Fields v Trustees of the Marist Brothers [2022] NSWSC 739
- Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
- Moevao v Department of Labour [1980] 1 NZLR 464
- Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
- Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
- Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32
- Petroulias v R [2007] NSWCCA 154
- Police v Rankin; Police v Roberts [2013] NSWLC 25
- R v Glennon (1992) 173 CLR 592; [1992] HCA 16
- Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
- Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34