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Court of Criminal Appeal 25 September 2023

MA v R; AD v R

[2023] NSWCCA 233

Sexual offences
EXERCISE DISCRETION TO GRANT STAY

Citation: MA v R; AD v R [2023] NSWCCA 233
Court: Court of Criminal Appeal (NSW)
Date: 25 September 2023
Judge(s): Bell CJ; Ward P; Sweeney J

Background

Two applicants, both juveniles at the time of the alleged offences, were charged with sexual assault offences arising from an incident at a hotel in Parramatta in March 2019. The complainant (identified as CW) provided an initial police statement shortly after the alleged events. In April 2021, a solicitor advocate for the prosecution conducted a conference with CW as part of the charge certification process.

During that conference, the solicitor advocate disclosed evidentiary gaps in CW's first statement, pointed out weaknesses in the prosecution case, and discussed how CW might handle cross-examination at trial. Shortly after the conference, CW made a second police statement containing additional recollections that closely tracked the matters raised and emphasised in the conference. The prosecution served the second statement but did not disclose the conference notes until August 2022, when a subpoena compelled their production.

The applicants applied for a permanent stay of the proceedings before Pickering SC DCJ in the District Court. The primary judge was sharply critical of the solicitor advocate's conduct and of certain DPP Guidelines he found responsible for systemic failures within the ODPP, but declined the stay. He concluded the applicants could still receive a fair trial, noting the jury could assess CW's credibility and that the conference notes provided powerful cross-examination material. The applicants appealed that refusal.

  • Whether the primary judge erred in concluding the applicants could receive a fair trial despite the coaching at the April Conference and the late disclosure of the notes (the fair trial issue).
  • Whether the primary judge failed to separately consider whether permitting the prosecutions to continue would bring the administration of justice into disrepute, irrespective of measures available to mitigate unfairness (the administration of justice issue).
  • Whether, if error was established, the Court of Criminal Appeal should re-exercise the discretion and grant a permanent stay.

Decision

On the fair trial issue, the Court of Criminal Appeal found no error of law or other basis to impugn the primary judge's exercise of discretion. While the April Conference may have altered the trajectory of the trial, that did not necessarily render the trial unfair. The Court noted the Crown's clear concession of impropriety (which it undertook to maintain at trial), its non-opposition to a direction under s 165 of the Evidence Act 1995 (NSW) about the reliability of evidence affected by improper conduct, and its indication that it would not seek a s 293A direction. The Court also observed that the differences between the two statements were not so substantial as to deprive the applicants of a fair trial.

On the administration of justice issue, the Court upheld this ground of appeal. The primary judge had not separately asked whether permitting the prosecution to continue would bring the administration of justice into disrepute, having conflated that question with the fair trial analysis. That was an error warranting appellate intervention.

Re-exercising the discretion, however, the Court declined to grant a stay. Bell CJ identified several factors pointing against a stay: the Crown's concession of improper conduct would be on the record; the applicants retained the ability to cross-examine CW using the conference notes; the differences between the two statements were available to be used in challenge; the impropriety was likely to be referred to relevant regulatory bodies; and the Court's reasons (though restricted pending trial) would publicly record the solicitor advocate's misconduct. Applying the principles from Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, the Court concluded this was not a case where a defect in process was so profound as to offend the integrity and functions of the Court, and that permitting the proceedings to continue would not undermine public confidence in the administration of justice.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Publication of reasons restricted to the parties and their legal advisers until completion of trial.
  • The Director of Public Prosecutions directed to notify the Associate to the Chief Justice upon completion of trial, so the publication restriction could be lifted.

Key Takeaways

  • A permanent stay of criminal proceedings remains an exceptional remedy. Even where serious prosecutorial misconduct is established, including coaching a complainant and failing to disclose conference notes, a stay will not automatically follow if measures exist to adequately address any unfairness at trial.
  • The administration of justice limb of the permanent stay jurisdiction requires separate consideration from the fair trial limb. A primary judge who addresses only whether the accused can receive a fair trial, without also asking whether continuing the proceedings would bring the administration of justice into disrepute, commits an error of principle.
  • Where the Crown makes and maintains clear concessions of impropriety, does not oppose adverse jury directions, and the defence retains access to material enabling effective cross-examination, those factors weigh against a finding that continuing proceedings would bring the administration of justice into disrepute.
  • In re-exercising the discretion after establishing error, the Court of Criminal Appeal applied the Strickland framework, asking whether the prosecutorial misconduct amounted to a defect in process so profound as to offend the integrity and functions of the court. The misconduct here, while serious, did not meet that threshold.
  • Solicitor advocates conducting pre-trial conferences with complainants carry obligations under both the Legal Profession Uniform Conduct (Barristers) Rules 2015 and the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015. Disclosure of evidentiary gaps and coaching on cross-examination responses represents conduct that can attract findings of significant impropriety and potential regulatory consequences, even where no deliberate intention to coach is found.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW) s 15A
- Crimes Act 1900 (NSW) ss 61I, 61J
- Criminal Appeal Act 1912 (NSW) s 5F(3)(a)
- Criminal Procedure Act 1986 (NSW) ss 64, 66, 293A
- Director of Public Prosecutions Act 1986 (NSW) s 13(1)
- Evidence Act 1995 (NSW) s 165(2)
- Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 69-70
- Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 rr 24, 29
- Victims Rights and Support Act 2013 (NSW) ss 5(1), 6.1, 6.5

Cases:
- Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
- Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
- R v Edwards (2009) 83 ALJR 717; [2009] HCA 20
- Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- La Rocca v R [2023] NSWCCA 45
- R v Momodou and Limani [2005] 2 Cr App R 6; [2005] EWCA Crim 177
- R v Yavuz (No 3) [2018] NSWSC 573
- Majinski v Western Australia [2013] WASCA 10; (2013) 226 A Crim R 552