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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
Date: 22 April 2024
Judge(s): Ward P and Kirk JA (joint judgment); Garling J (dissenting on extension of time)

Background

The applicant was a director of two debt collection companies who was charged in 2018 with dishonestly obtaining an advantage by deception under s 192E of the Crimes Act 1900 (NSW). He had filed false representations in Local Court civil proceedings to obtain default judgments, then obtained garnishee orders against defendants who had never been served with the originating process.

From the outset, the applicant argued that the conduct was immune from prosecution under the principle in Jamieson v The Queen (1993), which recognises immunity for statements made in the course of civil proceedings. After negotiations, the prosecution offered a plea deal in September 2018, under which reformulated charges under s 192G(b) of the Crimes Act (dishonestly making or publishing a false statement) would be substituted for more serious perverting-the-course-of-justice charges under s 319. The applicant pleaded guilty in October 2018, and the s 319 charges were withdrawn. He was convicted and sentenced to an intensive corrections order.

The applicant then successfully appealed his convictions to the Supreme Court, which set them aside on the basis that the Jamieson immunity applied to the s 192G charges. The Director of Public Prosecutions subsequently filed an ex officio indictment in the District Court charging the applicant with the s 319 offences. The applicant sought a permanent stay of those proceedings on the basis that re-prosecution was oppressive and brought the administration of justice into disrepute by departing from the plea bargain. The stay was refused. Following conviction on one s 319 count (and acquittal on the other), the applicant sought leave to appeal the refusal of the stay under s 5F of the Criminal Appeal Act 1912 (NSW).

Legal Issues

  • Whether the doctrine of merger operated to deprive the Court of Criminal Appeal of jurisdiction to hear an appeal under s 5F against a refusal to stay proceedings, given that a conviction had subsequently been entered.
  • Whether an extension of time should be granted to file the s 5F application, which was lodged approximately six months out of time.
  • Whether leave to appeal should be granted where the applicant had made a deliberate forensic decision to wait until after both trials had concluded before seeking to appeal the stay refusal.
  • Whether the trial judge erred in finding that the re-prosecution on s 319 charges was not an abuse of process, having regard to the plea bargain and the conduct of the prosecution.
  • Whether the re-prosecution was oppressive, including by reason of delay.

Decision

Issue 1: Jurisdiction and the doctrine of merger

The majority (Ward P and Kirk JA) held that the Court retained jurisdiction to hear a s 5F appeal notwithstanding the subsequent conviction. The Crown argued that the refusal of the permanent stay had merged into the conviction and thus had no extant legal effect. The majority rejected this. The doctrine of merger, as articulated by the High Court in cases such as Pearce v The Queen and Island Maritime Ltd v Filipowski, is concerned with the substitution of a final judgment for a party's liability, not with the fate of interlocutory decisions made in the course of proceedings (at [93]-[97]). Garling J agreed on this point (at [152]).

Issue 2: Extension of time

The majority granted an extension of time, but only because the application raised a question of principle as to whether the merger doctrine deprives the Court of jurisdiction in cases of this kind (at [55]). The majority was otherwise critical of the delay, finding that the applicant had made a deliberate forensic decision to wait until both trials were complete before bringing the application, which weighed heavily against him (at [54]). Garling J dissented on this point, finding no satisfactory explanation for the delay and no basis in the interests of justice for granting the extension (at [165]-[168]).

Issue 3: Leave to appeal

The majority refused leave to appeal. The applicant had made a forensic choice not to challenge the stay refusal until after both trials were concluded, and a conviction appeal remained available to him. The majority found it would be inappropriate to grant leave under s 5F in circumstances where there was no utility in relation to the stay, the trial having proceeded to conviction (at [134]). The majority also rejected the applicant's argument that no conviction appeal could be brought until after sentence, noting that a jury verdict of guilty constitutes a conviction, and that the Court has jurisdiction to hear a conviction appeal before sentencing, though the ordinary course is to await sentence to avoid fragmentation (at [137]-[141]).

Issue 4: Merits of the proposed appeal grounds

Although leave was refused, the majority assessed the merits in case they were relevant to the leave question. On the plea bargain ground, the majority found that the trial judge did not err. The parties were not ad idem as to the bargain: the applicant intended throughout to appeal his convictions while concealing that intention from the prosecution (at [59]-[61]). The applicant's challenge to the s 192G convictions was tantamount to seeking withdrawal of the guilty pleas, and the suggestion that the plea bargain permitted such a course while preventing re-prosecution was artificial (at [144]-[147]). On the oppression ground, the majority found that the trial judge correctly concluded that re-prosecution was not an abuse of process. The prosecution's ultimately unsuccessful submission on Jamieson immunity was not without a proper basis and did not constitute evidence of mala fides (at [148]-[150]).

Orders Made

  • Time for the filing of the notice of appeal is extended to the date of the filing of the notice of appeal.
  • Leave to appeal is refused.

Key Takeaways

  • The Court of Criminal Appeal held that the doctrine of merger does not deprive the court of jurisdiction under s 5F of the Criminal Appeal Act 1912 (NSW) to consider an appeal against an interlocutory stay refusal after a conviction has been entered. Merger operates to substitute a final judgment for a party's criminal liability; it does not operate to extinguish interlocutory decisions made in the course of those proceedings (at [93]-[97]).

  • An extension of time to bring a s 5F application will rarely be granted where the point raised could instead be agitated as part of a conviction or sentence appeal, and where the applicant made a deliberate forensic decision to delay filing. The majority extended time in this case only because the merger jurisdictional question was one of broader principle (at [53]-[55]).

  • A guilty plea entered with a covert intention to appeal the conviction, without disclosing that intention to the prosecution, was characterised by the majority as undermining the integrity of the plea bargain. The subsequent challenge to the conviction was treated as tantamount to seeking withdrawal of the pleas (at [144]-[145]).

  • Where a prosecution's submission on a legal question was arguable, even if ultimately unsuccessful, that does not constitute evidence of mala fides or malpractice sufficient to support a permanent stay on the ground of oppression (at [150]).

  • A jury verdict of guilty constitutes a conviction for the purposes of the Criminal Appeal Act, and the Court of Criminal Appeal has jurisdiction to hear a conviction appeal before sentencing, though the ordinary and appropriate course remains to await sentence in order to avoid fragmentation of the criminal trial and appellate process (at [137]-[141]).

Legislation and Cases Referenced

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

Cases
- [SJ] v Director of Public Prosecutions (NSW) [2019] NSWSC 1615
- Adler v Director of Public Prosecutions (Cth) [2004] NSWCCA 352
- Barac v Director of Public Prosecutions [2007] QCA 112
- Beattie v R [2020] NSWCCA 334
- Bebbington v The Queen (unreported, Court of Criminal Appeal Western Australia, 11 January 1990)
- Blacker v Parnell [1978] 1 NSWLR 616
- Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
- Brennan v Comcare (1994) 50 FCR 555
- Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
- Cabot (a pseudonym) v R [2018] NSWCCA 265
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86
- Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220; [1935] HCA 45
- Davis v Gell (1924) 35 CLR 275; [1924] HCA 56
- Dawson v R [2021] NSWCCA 117
- Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520
- DSJ v The Queen; NS v The Queen [2014] NSWCCA 77
- Einfeld v The Queen [2010] NSWCCA 87
- Federated Engine Drivers Association of Australasia v Broken Hill Pty Ltd (1911) 12 CLR 398; [1911] HCA 31
- Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
- GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 2
- GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
- Griffiths v The Queen (177) 137 CLR 293; [1977] HCA 44
- Group Seven Ltd v Nasir; Equity Trading Systems Ltd (formerly Lam Ltd) v Notabie Services LLP [2020] Ch 129; [2019] EWCA Civ 614
- India v India Steamship Co [1993] AC 410
- Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30
- Jamieson v The Queen (1993) 177 CLR 574; [1993] HCA 48
- Jenkins v Director of Public Prosecutions [2013] NSWCA 406
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kite v R (1992) 60 A Crim R 226
- Koschier v R [2024] NSWCCA 24
- LJW v Western Australia (No 2) [2007] WASCA 275
- Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
- Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- Meakes v Dignan (1932) 46 CLR 73; [1932] HCA 7
- Nand v Director of Public Prosecutions (NSW) [2016] NSWSC 85
- Natoli v R [2005] NSWCCA 292
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Price v Spoor (2021) 270 CLR 450; [2021] HCA 20
- Protheroe v Protheroe [2023] NSWCA 328
- R v Brightwell [1995] 2 NZLR 435
- R v BWM (1997) 91 A Crim R 260
- R v Carroll (2002) 213 CLR 635; [2002] HCA 55
- R v Curtis (No 3) [2016] NSWSC 866
- R v Edwards [2009] HCA 20
- R v Georgiadis [1984] VR 1030
- R v Hamza [2007] QB 659
- R v Jurca (1986) 6 NSWLR 491
- R v Karageorge (1998) 103 A Crim R 157
- R v Lewandowski (2003) 32 SR (WA) 247
- R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247
- R v MAJW (2007) 171 A Crim R 407; [2007] NSWCCA 145
- R v Maxwell (1994) 34 NSWLR 606
- R v Nwanokwu [2015] 2 Cr App R (S) 33; [2015] EWCA Crim 81
- R v O’Meara [2003] NSWCCA 206
- R v Pearce [2020] NSWCCA 61
- R v Petroulias (No 1) [2006] NSWSC 788
- R v Robert Thomas [1995] Crim LR 938
- R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
- R v [SJ] [2023] NSWDC
- R v Swingler [1996] 1 VR 257
- R v Townsend [1997] 2 Cr App Rep 540; [1998] Crim LR 126
- R v Trainor [1992] 2 Qd R 572
- R v Unger [1977] 2 NSWLR 990
- R v Van Phu Ho (Court of Criminal Appeal, unreported, 18 July 1994)
- Re Culleton (2017) 91 ALJR 302; [2017] HCA 3
- RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305
- Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
- Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
- Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
- Thalari v The Queen (2009) 75 NSWLR 307; [2009] NSWCCA 170
- The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
- The Queen v Latf [1996] 1 All ER 353
- Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
- Tonari v The Queen (2013) 237 A Crim R 490; [2013] NSWCCA 232
- Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2023] HCA 11
- Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
- Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8