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Court of Criminal Appeal 14 May 2024

R v MA; R v AD

[2024] NSWCCA 69

Sexual offences
CRIME APPEALS INTERLOCUTORY APPEAL

Citation: R v MA; R v AD [2024] NSWCCA 69
Court: Court of Criminal Appeal, New South Wales
Date: 14 May 2024
Judge(s): Stern JA; Rothman J; Button J

Background

Two respondents, identified as MA and AD, faced charges of aggravated sexual intercourse without consent in company, with AD facing additional charges of sexual intercourse without consent. The alleged offences occurred in early 2019, and all parties were under 18 at the time, resulting in the use of anonymised names throughout proceedings.

A central concern in the prosecution was a conference held in April 2021 between the complainant and two ODPP solicitors. The Crown later conceded that one solicitor, Mr Buckingham, improperly disclosed evidentiary weaknesses in the prosecution case to the complainant and coached her on her evidence. A file note of that conference was taken by the second solicitor, Ms Anderson-James, and was later disclosed to the defence.

Shortly before the trial was set to commence in November 2023, the Crown informed the respondents that Mr Buckingham would give evidence but that Ms Anderson-James would not, citing medical evidence that doing so would be fundamentally detrimental to her wellbeing. The respondents applied to vacate the trial or obtain a stay until both were available to give evidence. The primary judge granted a stay "until such time as the Crown indicates that Ms Anderson-James will be called at the trial or made available to give evidence at the trial." The Crown appealed that order.

  • Whether the primary judge's order, though framed as a temporary stay, was in substance a conditional stay of potentially permanent effect.
  • Whether the appropriate standard of appellate review was correctness (rather than the more deferential discretionary standard from House v The King).
  • Whether the threshold for granting such an order required the court to be satisfied that the trial would otherwise be so unfair as to amount to an abuse of process.
  • Whether, on the facts, the circumstances justified an order with potentially permanent effect.

Decision

The Court of Criminal Appeal, in a unanimous decision, allowed the Crown's appeal and set aside the primary judge's order.

Stern JA (with Rothman and Button JJ agreeing) held that the order was best characterised not as a temporary stay but as a conditional stay of potentially permanent effect. Its duration depended entirely on whether the Crown chose to call or make available Ms Anderson-James, something entirely within the Crown's control. Given the well-established principle that it is for the Crown, not the court, to decide which witnesses to call, the order effectively conditioned the resumption of the trial on a decision that the Crown was entitled to make for itself.

Because of that potentially permanent character, the Court held that the only proper basis for making such an order was satisfaction that the trial would otherwise involve such unfairness as to amount to an abuse of process. This is the same high threshold applicable to permanent stays. Applying a correctness standard of review on appeal, the Court found that the primary judge had addressed the significantly lower threshold applicable to an ordinary temporary stay, and in doing so had asked the wrong question.

The Court went on to find that the circumstances did not justify an order of potentially permanent effect. The file note of the April Conference had been disclosed and could be tendered by the defence. Mr Buckingham would give evidence and be available for cross-examination. DSC Hayes, who was sent the follow-up emails by Ms Anderson-James requesting a further statement, would also give evidence. The defence had access to the relevant emails and the charge certification report. In those circumstances, the respondents had not established that the absence of Ms Anderson-James as a live witness would render the trial so unfair as to constitute an abuse of process.

Orders Made

The orders section of the provided text does not reproduce a formal orders list, but the Court's conclusions are clear from the judgment:

  • The appeal was allowed.
  • The primary judge's stay order of 1 December 2023 was set aside.
  • The trial was to proceed (relisted for November 2024).

Key Takeaways

  • A stay framed as "temporary" but conditioned on the Crown calling a particular witness is properly characterised as a conditional stay of potentially permanent effect, because its duration depends on a decision that rests with the Crown alone.
  • Where a stay order has potentially permanent effect, the applicable threshold is whether the trial would otherwise be so unfair as to constitute an abuse of process, consistent with the principles in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857.
  • The Court of Criminal Appeal confirmed that a correctness standard of appellate review applies to such an order, notwithstanding that the primary judge characterised it as a temporary measure rather than a permanent stay.
  • Addressing the wrong legal threshold, even in a procedural or case management context, constitutes an appealable error when the practical effect of the order is potentially permanent.
  • The existence of a detailed file note, to be admitted without objection, combined with the availability of other witnesses with direct knowledge of the relevant events, was insufficient to establish the level of unfairness required to justify a stay of potentially permanent effect.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 10
- Crimes Act 1900 (NSW), ss 61I, 61J(1)
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Criminal Procedure Act 1986 (NSW), s 293A; Div 4 of Pt 2 of Ch 3
- Evidence Act 1995 (NSW), ss 38, 165(2)

Cases
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
- Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109
- HO v R [2023] NSWCCA 245
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Koschier v R [2024] NSWCCA 24
- Leiper v R [2018] NSWCCA 117
- MA v R; AD v R [2023] NSWCCA 233
- Marwan v Director of Public Prosecutions [2019] NSWCCA 161
- R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
- Re K [2002] NSWCCA 374
- The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42