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Court of Criminal Appeal 22 April 2024

Sayer-Jones v R

[2024] NSWCCA 54

Fraud & dishonestyPublic order & justice offences
CRIME APPEALS INTERLOCUTORY APPEAL

Citation: Sayer-Jones v R [2024] NSWCCA 54
Court: Court of Criminal Appeal, NSW
Date: 22 April 2024
Judge(s): Ward P and Kirk JA (joint judgment); Garling J (dissenting on the extension of time)

Background

The applicant was a director of two debt collection companies. Police investigated him following allegations that civil proceedings commenced by those companies had been used to garnish moneys based on false representations to courts. He was initially charged in the Local Court with offences under s 192G(b) of the Crimes Act 1900 (NSW), to which he pleaded guilty pursuant to a plea agreement with the Office of the Director of Public Prosecutions (ODPP).

The applicant then successfully applied to have those convictions set aside, arguing the charges were legally defective. The ODPP responded by filing an ex officio indictment in the District Court charging him with two more serious offences under s 319 of the Crimes Act (perverting the course of justice). The two counts were severed into separate trials. The applicant was convicted at the first trial in June-July 2023, and acquitted at the second in November 2023.

During the first trial, the applicant applied for a permanent stay of the proceedings on the basis that the ODPP was acting oppressively and that continuing the prosecution would bring the administration of justice into disrepute. The primary judge refused the stay. After conviction but before sentencing, the applicant sought leave in the Court of Criminal Appeal to appeal that interlocutory ruling under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the doctrine of merger operated to extinguish the interlocutory stay decision once the applicant was convicted, thereby depriving the Court of Criminal Appeal of jurisdiction to hear the appeal.
  • Whether an extension of time should be granted, given the application was filed well outside the 14-day time limit prescribed for s 5F appeals.
  • Whether the primary judge erred in finding that the plea bargain was unenforceable in a way that rendered the subsequent prosecution oppressive.
  • Whether the Crown's decision to reinstate fraud charges after the applicant's original convictions were set aside constituted an abuse of process.

Decision

On merger and jurisdiction: The majority (Ward P and Kirk JA) rejected the Crown's submission that the interlocutory stay decision had "merged" into the conviction, leaving the Court without jurisdiction. The doctrine of merger operates to extinguish an underlying legal liability once a court of record gives judgment on it. It does not extend to interlocutory decisions made during the course of a trial. To apply merger in that way would misread the doctrine's foundation: it is the underlying liability that merges into the conviction, not procedural rulings made along the way. Garling J agreed with this conclusion.

On the extension of time: The majority granted the extension of time, but Garling J dissented on this point. Garling J held that no adequate explanation had been given for the six-month delay. His Honour identified several reasons why the interests of justice did not favour an extension: the relief sought was effectively futile (the trial had concluded), extending time would fragment the criminal process unnecessarily, and any grounds could still be raised on a conviction appeal under s 5F(6).

On leave to appeal: Despite granting the extension, Ward P and Kirk JA refused leave to appeal. The applicant had made a deliberate forensic choice not to challenge the stay ruling until after conviction. He retained the ability to raise the same arguments on a conviction and sentence appeal. The Court confirmed it has jurisdiction to entertain a conviction appeal before sentencing, but discouraged that course absent compelling reason.

On the substantive grounds: The majority found no error in the primary judge's reasoning. The primary judge had not held the plea bargain was simply unenforceable; rather, her Honour correctly observed that ordinary contractual analysis does not apply to plea agreements. The applicant had himself departed from the plea agreement by seeking to have his convictions set aside. The majority noted that accepting the applicant's argument on this point would itself risk bringing the administration of justice into disrepute. On the second ground, the majority found the Crown's decision to reinstate more serious charges was not an abuse of process in the circumstances, and the primary judge's examination of those circumstances was sufficient.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The doctrine of merger does not cause an interlocutory ruling made during a criminal trial to merge into the subsequent conviction. Merger operates on the underlying liability, not on procedural steps taken in the course of reaching a verdict.
  • Under s 5F of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal retains jurisdiction to hear an interlocutory appeal after conviction, but declining to challenge an interlocutory ruling until after conviction is a forensic choice that weighs against the grant of leave.
  • A permanent stay of criminal proceedings is not available as relief once a trial has concluded and a verdict has been entered; any remaining challenge can be directed to the sentencing phase or raised on a conviction appeal.
  • Ordinary contractual principles do not govern plea agreements. Where an accused departs from a plea bargain by successfully challenging the agreed convictions, that departure affects any later claim that the Crown acted oppressively by bringing more serious charges.
  • Reinstating charges following the setting aside of convictions under a defective plea agreement does not, without more, constitute an abuse of process, particularly where the underlying conduct is serious and there is a compelling public interest in prosecution.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), ss 192E, 192G, 319
- Criminal Procedure Act 1987 (NSW), s 208
- Crimes (Appeal and Review) Act 2001 (NSW), s 52
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases:
- [SJ] v Director of Public Prosecutions (NSW) [2019] NSWSC 1615
- Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
- Dawson v R [2021] NSWCCA 117
- Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
- R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520
- Davis v Gell (1924) 35 CLR 275; [1924] HCA 56
- Adler v Director of Public Prosecutions (Cth) [2004] NSWCCA 352
- Einfeld v The Queen [2010] NSWCCA 87
- DSJ v The Queen; NS v The Queen [2014] NSWCCA 77