Citation: R v Camelo-Gomez [2022] NSWSC 136
Court: Supreme Court of New South Wales
Date: 21 February 2022
Judge: Wilson J
Background
The accused was charged in September 2019 with the murder of her mother, which occurred at a home in Lansvale on 2 November 2001. Police had interviewed and suspected the accused at the time of the killing but did not charge her. A coronial inquest was held in 2007, at which the coroner made no finding that a known person caused the death and referred the matter to the NSW Police Unsolved Homicide Team. The accused was not charged for nearly 18 years after the murder.
The Crown case alleged that the accused strangled and stabbed her mother, then reported an assault by an unknown male intruder. The prosecution relied on witness accounts describing the accused's violent and demanding behaviour towards the deceased in the lead-up to the killing, the deceased's expressed fear of her daughter, and statements reportedly made by the accused at her mother's funeral.
Before trial, the accused applied by Notice of Motion for a permanent stay of the proceedings. She argued the lengthy delay, the unavailability of key witnesses, the loss of evidence over time, alleged contamination of witness accounts through the coronial process, and the oppressive nature of living under suspicion for two decades all combined to constitute an abuse of process.
Legal Issues
- Whether the near-18-year delay between the murder and the charge was unreasonable and rendered the proceedings oppressive or vexatious.
- Whether the accused suffered forensic disadvantage from the unavailability of witnesses (particularly Carlos Camelo, who sustained a traumatic brain injury in 2013, and Cesar Camelo, who is overseas) and the loss of evidence over time.
- Whether the coronial inquest contaminated witness evidence in a way that prejudiced the accused's right to a fair trial.
- Whether the combined effect of all circumstances raised constituted an abuse of the Supreme Court's process sufficient to justify a permanent stay.
Decision
Wilson J applied the well-established principle that a permanent stay is an extreme remedy, available only where continuing the prosecution would compromise the administration of criminal justice. Her Honour confirmed that the question requires a balancing exercise: the court must weigh the accused's interests and the fairness of the trial against the strong public interest in bringing serious criminal charges to trial and maintaining public confidence in the justice system.
Her Honour accepted that the accused had suffered real disadvantage as a result of the passage of time. The unavailability of Carlos Camelo, whose deep retrograde amnesia from a 2013 car crash meant he could not give evidence about his whereabouts on the night of the murder, was a notable forensic loss. The absence of Cesar Camelo, located overseas and never interviewed by police, added further concern. Her Honour also accepted that the accused had been greatly distressed by living under suspicion for two decades and by the need to make arrangements for the care of her children in anticipation of being charged.
Despite these findings, Wilson J concluded that the trial would nonetheless be fair. The accumulated disadvantages, while real, did not reach the very high threshold required for a permanent stay. The public interest in the determination of a murder charge was, in her Honour's view, the consideration that must prevail. A permanent stay would have the practical effect of granting immunity from prosecution, leaving the accused under an irremovable cloud of suspicion and risking what the court described as "a festering sense of injustice" in the community.
The application was dismissed and the trial was to proceed.
Orders Made
- The Notice of Motion filed on 20 December 2021 seeking a permanent stay of the accused's trial was dismissed.
Key Takeaways
- A permanent stay of criminal proceedings requires an applicant to clear a very high bar: the continuation of the prosecution must be shown to compromise the administration of criminal justice and constitute an abuse of process, not merely cause disadvantage to the accused.
- Significant evidentiary disadvantage caused by delay, including the unavailability of witnesses and loss of evidence over time, does not automatically satisfy the test for a permanent stay where the trial can still be conducted fairly.
- Where an accused faces a murder charge, the public interest in bringing the matter to trial carries substantial weight in the balancing exercise and can outweigh forensic disadvantage and personal hardship suffered by the accused over a prolonged pre-charge period.
- Contamination of witness evidence through coronial proceedings, and distress arising from years of living under suspicion, are factors the court will take into account, but their combined weight may still fall short of what is required for a permanent stay.
- In refusing the application, the Supreme Court reinforced that a permanent stay has the practical effect of conferring immunity from prosecution, a consequence courts treat with considerable caution when serious charges are involved.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Coroners Act 1980 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Jago v The District Court of New South Wales (1989) 168 CLR 239
- Rogers v The Queen (1994) 181 CLR 251
- Barton v The Queen (1980) 147 CLR 75
- Ridgeway v The Queen (1995) 184 CLR 19
- Dupas v The Queen (2010) 241 CLR 237
- The Queen v Edwards (2009) 83 ALJR 717
- The Queen v Apostilides (1984) 154 CLR 563
- R v Kneebone (1999) 47 NSWLR 450
- Darwiche v R [2011] NSWCCA 62
- Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65
- R v Warwick (No 93) [2020] NSWSC 926; R v Warwick (No 94) [2020] NSWSC 1168
- Gill v Walton (1991) 25 NSWLR 190
- R v Nicholson (1998) 102 A Crim R 459