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9
Court of Criminal Appeal 26 February 2024

Koschier v R

[2024] NSWCCA 24

Also reported as (2024) 113 NSWLR 491
Sexual offences
CRIME APPEALS INTERLOCUTORY APPEAL DECISION TO REFUSE A PERMANENT STAY (2023) 97 ALJR 857 STAY OF PROCEEDINGS

Citation: Koschier v R [2024] NSWCCA 24
Court: Court of Criminal Appeal, New South Wales
Date: 26 February 2024
Judges: Bell CJ (primary reasons); Harrison CJ at CL and Chen J (agreeing)

Background

An 88-year-old man was charged in September 2021 with 12 counts of historical sexual offending against two complainants who were his nieces by marriage. The alleged offences occurred between 1961 and 1976. Both complainants had first reported the conduct to police in 1997, but the investigation was suspended in April 1998 and no charges were laid. Fresh reports in 2021 led to the prosecution being reopened.

In March 2023, a District Court judge found the applicant unfit to stand trial and ordered that he proceed by way of special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The applicant then applied for a permanent stay of proceedings, relying on his cognitive impairment, the length of the delay since the alleged offences, and the forensic disadvantages caused by the 1998 decision not to prosecute, including the loss or destruction of evidence.

The primary judge (Fitzsimmons SC DCJ) dismissed the stay application in August 2023. The applicant sought leave to appeal from that interlocutory decision under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether leave to appeal should be granted from the refusal of a permanent stay in criminal proceedings, and what threshold applies under s 5F of the Criminal Appeal Act 1912 (NSW).
  • Whether the "correctness standard" of appellate review, as applied to permanent stay applications in civil proceedings following GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, extends to criminal proceedings.
  • Whether the "common humanity" test from Subramaniam v R [2004] HCA 51 applies where a stay is sought on grounds of mental infirmity combined with other forms of prejudice such as delay.
  • Whether the primary judge gave insufficient weight to the applicant's mental impairment.
  • Whether the primary judge erred by weighing forensic disadvantage to the applicant arising from delay against corresponding forensic disadvantage to the Crown.
  • Whether the continuation of the proceedings was in the public interest, and whether that consideration formed a relevant criterion for granting a permanent stay.

Decision

Standard of review and leave threshold. Bell CJ held that there is no reason in principle why the correctness standard of appellate review, endorsed in GLJ for civil proceedings, should not also apply to criminal proceedings in which a permanent stay is sought. Because the applicable review standard is correctness rather than the House v The King discretionary error standard, an appeal following the grant of leave would proceed as a rehearing. However, the primary judge's reasoning retains its greatest significance at the leave stage. The Court confirmed that a "tight rein" should be kept on interlocutory appeals, and leave under s 5F should only be granted where an applicant demonstrates both an error of principle and the possibility or likelihood of substantial injustice.

Common humanity test and mental infirmity. Bell CJ confirmed that the common humanity test established in Subramaniam forms part of the analytical framework even where the stay application combines mental infirmity with other grounds such as delay prejudice. The weight assigned to the applicant's mental impairment was characterised as a matter presenting no issue of principle at the leave stage and as being of peripheral relevance on a correctness review.

Public interest and prognosis of outcome. The Court rejected the proposition that the likely outcome of the special hearing was a relevant consideration on a stay application. Prognostications about evidential strength are inappropriate unless the case is so hopeless as to constitute an abuse of process warranting summary dismissal. Similarly, the Court held that whether the continuation of proceedings serves the public interest has never been a recognised test or criterion for a permanent stay, and that framing it as one would improperly undermine the exceptional nature of the remedy.

Prejudice and balancing. The Court accepted the applicant's submission that prejudice to an accused arising from delay should not be neutralised or diminished by treating corresponding prejudice to the Crown as an offsetting factor. The two do not legitimately balance against each other. Nonetheless, the Court found that any error of this kind by the primary judge was not material. Many of the examples of specific prejudice relied upon by the applicant were speculative, and, as the primary judge noted, a fair trial does not require a perfect trial. Leave to appeal was refused on all five grounds.

Orders Made

  • Leave to appeal refused on all five proposed grounds.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the correctness standard of appellate review, as articulated in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, applies to decisions to refuse a permanent stay in criminal proceedings, not merely in civil proceedings.
  • Under s 5F of the Criminal Appeal Act 1912 (NSW), leave to appeal from an interlocutory decision should only be granted where the applicant demonstrates both an error of principle and the possibility or likelihood of substantial injustice; the primary judge's reasoning carries its greatest weight at this threshold stage.
  • The common humanity test from Subramaniam v R remains part of the framework where mental infirmity is relied upon in combination with other grounds, such as delay prejudice, to support a permanent stay application.
  • Delay prejudice to an accused is not to be offset or diminished by equivalent prejudice that delay may have caused to the Crown; those considerations do not legitimately cancel each other out for the purposes of a permanent stay analysis.
  • Assessment of the likely outcome of a special hearing, or whether continuation of proceedings serves the public interest, does not form part of the test for granting a permanent stay; such considerations are inconsistent with the exceptional and confined nature of the remedy.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 54, 56, 59, 62, 63
- Civil Procedure Act 2005 (NSW), ss 6A, 67

Key Cases:
- GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
- Subramaniam v R [2004] HCA 51
- Kitchingman v R [2023] NSWCCA 4
- BTU v R [2023] NSWCCA 36
- House v The King (1936) 55 CLR 499
- Fox v Percy (2003) 214 CLR 118
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256
- Barton v R (1980) 147 CLR 75
- DAO v The Queen (2011) 81 NSWLR 568
- Agius v The Queen (2011) 80 NSWLR 486
- Finniss v New South Wales [2023] NSWCA 292
- Gorman v McKnight [2020] NSWCA 20
- CBRE (V) Pty Limited v Trilogy Funds Management Limited (2021) 107 NSWLR 202
- Director of Public Prosecutions (Cth) v Knopp [2023] VSCA 315
- Dupas v R (2010) 241 CLR 237
- Derley v R [2016] NSWCCA 60