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Court of Criminal Appeal 28 February 2024

R v Abu-Mahmoud

[2024] NSWCCA 21

Public order & justice offences
APPEALS CRIMINAL PROCEDURE TEMPORARY STAY OF PROCEEDINGS

Citation: R v Abu-Mahmoud [2024] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 28 February 2024
Judges: Harrison CJ at CL (leading judgment); Dhanji J; Huggett J (both agreeing)

Background

The accused and his co-accused faced a judge-alone trial on a charge of doing an act intending to pervert the course of justice under s 319 of the Crimes Act 1900 (NSW). The Crown alleged that the accused, as part of a joint criminal enterprise, paid a third party (referred to as CC) to provide an affidavit falsely exonerating members of the accused's family in connection with a murder. Central to the Crown's case was Witness C, CC's former solicitor, whose witness statement annexed a number of conference notes and file notes that were potentially subject to legal professional privilege.

Shortly after the trial commenced in October 2023, the question of whether CC held a valid privilege claim over those annexed documents emerged as a live issue. CC initially failed to respond to communications from the Director of Public Prosecutions about privilege, then confirmed he wished to claim it. Securing legal representation for CC proved difficult, the DPP declined to fund it, and several adjournments followed. The privilege issue was not resolved until 22 November 2023, when the trial judge ruled CC had no valid claim.

On 28 November 2023, the District Court judge granted a temporary stay of the accused's trial until the Crown paid the costs thrown away as a result of the delay. The Crown appealed that stay to the Court of Criminal Appeal.

  • Whether the primary judge erred by treating the DPP's decision not to fund CC's legal representation as a relevant consideration in granting the temporary stay
  • Whether the primary judge erred in finding the Crown was at fault for the delay, such that the principles in R v Mosely (1992) 28 NSWLR 735 applied
  • Whether the primary judge erred in finding that the accused suffered unfairness as a result of the delays in Witness C being called

Decision

On all three grounds, the Court of Criminal Appeal dismissed the Crown's appeal, finding no error in the primary judge's reasoning or orders.

On the first ground, the Court held that the DPP's decision not to fund CC's legal representation was a relevant consideration. While the Crown had no legal obligation to provide or contribute to CC's representation, the primary judge's reference to the funding decision arose in the context of her broader conclusion that the accused had been unfairly required to deploy trial funds to deal with an avoidable problem. The Crown, which had evidence as early as 2020 that CC had irrevocably waived privilege, should have resolved or been prepared to address the privilege issue before the trial began.

On the second ground, the Court held that the Crown was properly found to be at fault. The Crown had always intended to call a solicitor who would give evidence of communications with his former client. The prospect of a privilege issue arising from such evidence was something the Crown ought reasonably to have anticipated. The responsibility for delays resulting from a witness of that kind fell on the party calling that witness.

On the third ground, the Court accepted that the accused had suffered real unfairness. The accused gave unchallenged evidence that he had been funding the trial through borrowed money and that those funds had been exhausted. The Court also noted that, given the ultimate futility of CC's privilege claim, the matter could and should have been addressed at a pre-trial stage.

Orders Made

  • The Crown's appeal was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where the Crown calls a witness whose evidence raises an obvious and foreseeable privilege issue, the Crown bears responsibility for delays arising from the resolution of that issue.
  • A temporary stay of proceedings pending payment of costs thrown away is an available remedy where Crown-caused delay has produced unfairness to an accused, consistent with the principles in R v Mosely (1992) 28 NSWLR 735.
  • The DPP's decision not to fund a third party's legal representation to resolve a privilege claim is a relevant consideration in assessing fault and granting a stay, even though the Crown carries no formal obligation to provide such funding.
  • Under s 132 of the Evidence Act 1995 (NSW), a court must satisfy itself that a potential privilege holder is aware of their right to make a claim once it appears they may have grounds to do so. The Crown's obligation to anticipate and address privilege issues is not displaced by the possibility that a claim may ultimately prove meritless.
  • Financial hardship suffered by an accused as a direct consequence of avoidable Crown-caused delay can constitute the kind of unfairness that justifies a temporary stay.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Evidence Act 1995 (NSW), ss 132, 133, Part 3.10

Cases:
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Petroulias v R [2007] NSWCCA 154
- R v Abbas; R v Abu-Mahmoud (District Court (NSW), 22 November 2023, unrep)
- R v Abu-Mahmoud (District Court (NSW), 28 November 2023, unrep)
- R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41
- R v Issakidis [2015] NSWSC 834
- R v Mosely (1992) 28 NSWLR 735