AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 1 March 2023

BTU v R

[2023] NSWCCA 36

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW INTERLOCUTORY APPEAL REFUSAL OF STAY OF SPECIAL HEARING GROUNDS ABUSE OF PROCESS PROSECUTION FOREDOOMED TO FAIL

Citation: BTU v R [2023] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 1 March 2023
Judges: Basten AJA (primary reasons); Harrison J and Fagan J (agreeing)

Background

The appellant faced multiple firearms charges in the District Court. In November 2021, he was found unfit to be tried under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), and the matter was accordingly listed to proceed as a special hearing under that Act.

Before the special hearing commenced, the appellant applied for a permanent stay of proceedings on the ground that the prosecution constituted an abuse of process. His argument rested on evidence he had given that police officers had provided him assurances that his conduct was authorised. The District Court judge refused the stay application on 30 June 2022.

The appellant then sought leave to appeal that refusal under s 5F(3) of the Criminal Appeal Act 1912 (NSW), filing slightly out of time. The sole ground pressed on appeal was that the primary judge had failed to give adequate reasons for rejecting the stay application.

  • Whether the primary judge erred by failing to give adequate reasons for refusing the permanent stay application.
  • Whether the "foredoomed to fail" standard from Walton v Gardiner (1993) 177 CLR 378 applied to the stay application, and whether it was properly raised.
  • Whether leave to appeal under s 5F should be granted, and if so, whether the appeal should succeed.
  • Whether an order suppressing publication of evidence given at the hearing was appropriate.

Decision

The Court of Criminal Appeal unanimously refused the appeal, though it granted an extension of time and leave to appeal in order to address the merits.

On the "foredoomed to fail" ground, the Court identified two fatal problems. First, that standard had not been raised before the primary judge: counsel eventually conceded this during oral argument. It was therefore not appropriate to overturn an interlocutory decision on the basis of inadequate reasons where the claimed inadequacy concerned an issue the judge had never been asked to address. Second, the appellant's case depended on his own assertion that police had authorised his conduct. Because he bore the burden of proving the facts underlying the stay application, he could not simply assume his evidence would be accepted at the special hearing, and from that assumption conclude the prosecution was doomed.

On the adequacy of reasons, Basten AJA set out the applicable standard in some detail. The reasons required for an interlocutory decision subject to appeal under s 5F must show that the judge considered the evidence and submissions, identified the applicable legal test, and recorded the determination. The primary judge's reasons met that standard: they addressed the matters the parties had relied upon and explained why the applicant had not established the exceptional circumstances needed to warrant a stay. No error of law appeared.

The Court also observed that the "foredoomed to fail" ground was itself misconceived as a basis for a stay. Whether the appellant had authority for his conduct was precisely the question to be resolved at the special hearing. A stay application was not the proper vehicle for pre-empting that determination.

Orders Made

  • Leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) granted.
  • Appeal dismissed.
  • Judgment not to be published other than to the parties for 14 days from the date of decision.
  • Each party granted leave to file and serve submissions within 14 days if proposing that further publication of the judgment (or part thereof) be restricted.

Key Takeaways

  • A permanent stay application cannot succeed merely by asserting that a prosecution is "foredoomed to fail" where the applicant bears the burden of proving the underlying facts and cannot assume those facts will be found in their favour at the hearing itself.

  • The Court of Criminal Appeal confirmed that the "foredoomed to fail" standard from Walton v Gardiner will not be entertained on appeal if it was not raised before the primary judge, particularly where the only appeal ground is inadequacy of reasons.

  • Adequacy of reasons for refusing a permanent stay requires that the judge demonstrate engagement with the evidence and submissions, identify the applicable legal test, and record the determination. Reasons need not exhaustively analyse every possible argument, particularly one never put to the court.

  • Under the statutory special hearing scheme, the unfitness of an accused to stand trial does not by itself constitute a basis for a permanent stay; the legislation expressly contemplates that special hearings will proceed in precisely those circumstances.

  • Suppression orders under s 28(1)(a) of the Law Enforcement (Controlled Operations) Act 1997 (NSW) are available to protect the identity of participants in authorised controlled operations, and such orders made by the Court of Criminal Appeal operate throughout the Commonwealth until revoked by a judge.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Law Enforcement (Controlled Operations) Act 1997 (NSW), s 28
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 48
- Firearms Act 1996 (NSW)

Cases
- Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kitchingman v R [2023] NSWCCA 4
- Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51
- Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
- NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
- Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
- The Queen v Edwards [2009] HCA 20; (2009) 83 ALJR 717
- Madubuko v The Queen [2011] NSWCCA 135; 210 A Crim R 249
- Evans v The Queen [2006] NSWCCA 277; 164 A Crim R 489
- Ex parte Reid; Re Lynch (1943) SR (NSW) 207