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Court of Criminal Appeal 22 November 2024

Burton v R

[2024] NSWCCA 213

Public order & justice offences
CRIME APPEALS INTERLOCUTORY APPEAL DECISION TO REFUSE A PERMANENT STAY LEAVE TO APPEAL REFUSED

Citation: Burton v R [2024] NSWCCA 213
Court: Court of Criminal Appeal, NSW
Date: 22 November 2024
Judges: Kirk JA; Rothman J; Yehia J (delivering the principal judgment, with Kirk JA and Rothman J agreeing)

Background

The applicant faced trial on four charges of publishing or broadcasting the name of a child subject to Children's Court proceedings, contrary to s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). The charges arose from publications made in July 2017 at Newcastle, and the applicant was being tried jointly with a co-accused. He appeared unrepresented both at trial and before the Court of Criminal Appeal.

At the commencement of pre-trial proceedings on 14 October 2024, it emerged that two Crown witnesses were unavailable due to ill health. The applicant argued their unavailability caused irreparable prejudice to his ability to cross-examine and present his defences. He applied for both a permanent and a temporary stay of proceedings. The primary judge, Harris DCJ, refused both applications.

The applicant then sought leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). His grounds extended beyond the stay refusal to challenge what he characterised as rulings by the primary judge on the availability of the defences of honest and reasonable mistake of fact and self-defence.

  • Whether the refusal of a permanent stay of criminal proceedings involved an error of principle carrying a possibility or likelihood of substantial injustice, warranting leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW)
  • Whether the unavailability of two Crown witnesses constituted irreparable prejudice amounting to an abuse of process
  • Whether the primary judge's remarks about the defences of honest and reasonable mistake of fact and self-defence constituted "interlocutory orders" capable of founding appellate jurisdiction under s 5F
  • Whether preliminary or indicative judicial remarks during pre-trial argument are distinguishable from enforceable interlocutory orders

Decision

Ground 1: Permanent stay refused

Yehia J (with Kirk JA and Rothman J agreeing) found no error of principle in the primary judge's refusal to permanently stay the proceedings. The unavailability of witnesses does not automatically render proceedings unfair or constitute an abuse of process. Any prejudice arising from the witnesses' unavailability could, in the circumstances of this case, be addressed through judicial direction. The Court reviewed all eight bases advanced by the applicant in support of the stay application and concluded that none established an abuse of process.

The applicant's further arguments, including that many others had published the child's name without being charged, that a guilty verdict might not result in a conviction, and that there had been collusion between investigators and prosecutors, were each considered and rejected. The Court found no evidentiary foundation for the collusion allegation and concluded that prosecutorial discretion was a matter for the Director of Public Prosecutions. There was no error of principle carrying a possibility or likelihood of substantial injustice, and leave to appeal on Ground 1 was refused.

Grounds 2 and 3: Asserted rulings on defences

Yehia J held that the primary judge's remarks about the defences of honest and reasonable mistake of fact and self-defence were preliminary indications only, not interlocutory orders. They were not commands directing that something be done or not done, and they were not enforceable by the Court in the event of non-compliance. Because s 5F of the Criminal Appeal Act confers jurisdiction only in respect of interlocutory orders, the Court's jurisdiction was not enlivened by Grounds 2 and 3. Leave was refused on that basis.

Rothman J agreed with the orders but expressed some reservation about the precise scope of "interlocutory order" in the authorities. His Honour noted that where a ruling is expressly temporary and does not prevent a party from re-agitating the issue, leave to appeal should almost invariably be refused, regardless of how the definitional question is resolved.

Orders Made

  • Leave to appeal is refused.

Key Takeaways

  • Witness unavailability does not automatically warrant a permanent stay of criminal proceedings. Other remedies, including judicial direction or the exclusion of evidence, may adequately address any resulting prejudice, and the appropriateness of a stay turns on the facts of each case.

  • A preliminary or indicative remark made by a trial judge during pre-trial argument does not constitute an "interlocutory order" for the purposes of s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). The Court of Criminal Appeal's interlocutory appeal jurisdiction is not enlivened unless the ruling is an enforceable adjudication, not merely a provisional indication subject to revision.

  • Rothman J confirmed that an order or ruling that is expressly temporary and does not prevent re-agitation of an issue is one where leave to appeal should almost invariably be refused, even if the ruling might otherwise satisfy a broad definition of "interlocutory order."

  • The test for granting leave to appeal from an interlocutory decision in criminal proceedings requires both an error of principle and the possibility or likelihood of substantial injustice. Neither limb was satisfied here on any of the three grounds advanced.

  • Arguments based on selective prosecution, the potential outcome of sentencing, and unsubstantiated allegations of collusion between investigators and prosecutors did not advance an abuse of process claim in circumstances where there was no evidentiary foundation for those contentions.

Legislation and Cases Referenced

Legislation
- Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105(2)
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Evidence Act 1995 (NSW), s 97
- Criminal Procedure Act 1986 (NSW), s 130A
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 7(1)(a)
- Crimes Act 1900 (NSW), s 192E

Key Cases
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Boulos v R [2008] NSWCCA 119
- AF v R [2015] NSWCCA 35
- KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249
- BM v R [2017] NSWCCA 253
- R v Matthews [2018] NSWCCA 7
- GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32
- Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
- ABT v Bond (1990) 170 CLR 321
- Gas and Fuel Corporation v Saunders (1994) 52 FCR 48
- Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24