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Court of Criminal Appeal 15 May 2024

Sayer-Jones v R

[2024] NSWCCA 73

Fraud & dishonesty
CRIMINAL LAW RELEVANCE OF DELAY ON SENTENCE DELAY AS A MITIGATING FACTOR NO ERROR ESTABLISHED APPLICATION REFUSED

Citation: Sayer-Jones v R [2024] NSWCCA 73
Court: Court of Criminal Appeal
Date: 15 May 2024
Judge(s): Leeming JA at [1]; Campbell J at [7]; N Adams J at [13]

Background

The applicant, a self-represented accused with a law degree, was convicted by jury of one count of perverting the course of justice under s 319 of the Crimes Act 1900 (NSW) on 21 July 2023. His sentencing proceedings were pending before Harris DCJ in the District Court.

The applicant sought to subpoena two solicitors from the Office of the Director of Public Prosecutions and a sitting District Court judge (who had previously acted as an Acting Deputy Director of Public Prosecutions) to give evidence at his sentencing hearing. His stated aim was to establish that the ODPP had acted "unconscionably" and with "moral delinquency" during a period of unexplained delay between November 2019 and February 2021, and that this should attract additional mitigation, including a reduction in sentence to punish the prosecuting authority.

Harris DCJ set aside the two subpoenas directed to the ODPP solicitors and refused leave to issue a subpoena to the judicial officer. The applicant sought leave under s 5F of the Criminal Appeal Act 1912 (NSW) to appeal those interlocutory orders.

Legal Issues

  • Whether the subpoenas to the ODPP solicitors and the judicial officer had a legitimate forensic purpose
  • Whether the trial judge erred in denying the applicant the opportunity to present evidence about the reasons for delay between 2017 and 2023 (Ground 1)
  • Whether the trial judge failed to have proper regard to the need to ascertain the reasons for delay in a careful chronological way (Ground 2)
  • Whether delay in prosecution can attract additional mitigation specifically to punish the prosecuting authority, and whether that principle required the subpoena evidence
  • Whether the decisions in Alexandroaia and ex parte Polemis established an unbridled right to call whatever evidence a party considers necessary

Decision

Threshold question: Leave to appeal

The court applied the established test that leave under s 5F requires the applicant to demonstrate an error of principle and the possibility of substantial injustice. N Adams J (with Leeming JA and Campbell J agreeing) was not satisfied that either element was established (at [83]). The court found that the trial judge had not acted on any wrong principle, had not had regard to irrelevant considerations, had not failed to take into account any material consideration, and had not mistaken the facts (at [83]).

Ground 1: Denial of opportunity to present evidence about delay

The court found this ground misconceived. The applicant was not being prevented from presenting evidence about the reasons for delay: court records and other documents were available to establish the delay, and the applicant himself proposed to give evidence about its impact (at [84]). Critically, the Crown had already conceded that the second period of delay was unexplained, and the trial judge had expressly indicated she intended to find that period unreasonable and would take it into account at sentencing (at [86]). The three prospective witnesses could only give direct evidence about that second period, which was already effectively conceded against the Crown (at [86]). The applicant's contention that the interlocutory decision rendered delay irrelevant was inconsistent with the trial judge's own findings (at [88]).

The applicant's underlying argument was that a sentence should be reduced beyond what delay normally warrants, to punish the ODPP for its conduct. The court noted that this proposition, associated with the seventh factor identified in Scook v R [2008] WASCA 114, has not been followed in NSW: both R v Donald [2013] NSWCCA 238 and Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194 rejected it (at [49]-[51]). The applicant accepted that it was not necessary for the court to resolve whether R v Donald was plainly wrong at this interlocutory stage (at [87]).

Ground 2: Failure to have proper regard to chronology of delay

The court dismissed this ground as misconceived and substantially overlapping with Ground 1 (at [90]). Once no error was established in the trial judge's approach to the significance of delay, the reasons for the delay did not advance the matter on sentence. The trial judge had properly identified the relevant sentencing principles for the purpose of the subpoena issue (at [91]).

Misapprehension about cross-examination

All three judges noted a separate difficulty with the applicant's position. He repeatedly asserted a right to cross-examine the subpoenaed witnesses, not appreciating that they would be his own witnesses and that he would be bound by their answers to non-leading questions (at [2]-[3]). Leeming JA observed that, given this misapprehension, the applicant's repeatedly stated forensic purpose could not be achieved even if the subpoenas were permitted (at [4], [6]).

Rejection of the "unbridled right" argument

Campbell J addressed the applicant's reliance on Alexandroaia and ex parte Polemis as authority for an unrestricted right to call any evidence. The court found this reading of those cases plainly wrong: both decisions concerned the interplay between natural justice and the power to grant an adjournment, not any right to compel witnesses by subpoena (at [11]-[15]). The concept of legitimate forensic purpose operates precisely to limit unbridled use of the court's compulsory processes (at [9]-[10]).

Orders Made

  • Leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) is refused.

Key Takeaways

  • No error was established in the trial judge's decision to set aside subpoenas directed to ODPP solicitors and to refuse leave to subpoena a sitting judge, where the only stated purpose was to elicit evidence about the reasons for a discrete period of delay that the Crown had already conceded was unexplained and that the trial judge had already indicated she would treat as unreasonable (at [83], [86]-[88]).

  • A self-represented accused issuing subpoenas to attend and give evidence at a sentencing hearing cannot cross-examine those witnesses: they are the accused's own witnesses, and the accused is bound by answers to non-leading questions (at [2]-[4]).

  • Delay can be a mitigating factor on sentencing where an offender has been left in uncertain suspense, but the proposition that a sentence should be additionally reduced to punish a prosecuting authority for delay has not been followed in NSW, as confirmed by R v Donald and Director of Public Prosecutions (Cth) v Pratten (No 2) (at [49]-[51]).

  • The decisions in Alexandroaia v R and R v Thames Magistrates' Court ex parte Polemis do not establish any unbridled right to call whatever evidence a party considers necessary: both concern the refusal of adjournments and the requirements of natural justice, not the scope of compulsory process by subpoena (at [11]-[15]).

  • In refusing leave under s 5F of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal confirmed the established threshold: the applicant must demonstrate an error of principle and the possibility of substantial injustice, and courts exercise considerable restraint before interfering with interlocutory decisions on practice and procedure (at [80]-[83]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 192E(1)( b), 192G, 319
- Crimes (Appeal and Review) Act 2001 (NSW), s 52 (1)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 ( NSW), Ch 4 Pt 3, s 298
- Prevention of Oil Pollution Act 1971 (UK), s 2(1)
- Uniform Civil Procedure Rules 2005 (NSW), r 7.3(1)

Cases
- Alexandroaia v R (1995) 81 A Crim R 286
- Coles v R [2016] NSWCCA 32
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Sayer-Jones v The Director of Public Prosecutions (NSW) [2019] NSWSC 1615
- Decision Restricted [2022] NSWCCA 99
- Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42
- FT (a pseudonym) v The King [2024] VSCA 90
- GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857
- Diocese of Lismore [2023] HCA 32; 97 ALJR 857
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jamieson v The Queen (1993) 177 CLR 574; [1993] HCA 48
- Khanna v Woolworths Group Ltd [2022] NSWCA 94
- King v R (1998) 99 A Crim R 288
- Koschier v R [2024] NSWCCA 24
- Mill v R (1988) 166 CLR 59; [1988] HCA 70
- R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303
- R v Carpenter [2022] ACTSC 6
- R v DK [2023] NSWCCA 281
- R v Donald [2013] NSWCCA 238
- R v Gay [2002] NSWCCA 6; (2002) 49 ATR 78
- R v Haque [2022] ACTSC 10
- R v Karageorge (1998) 146 FLR 100; (1998) 103 A Crim R 157
- R v Obeid [2018] NSWSC 1024
- R v Schwabegger [1998] 4 VR 649; (1997) 38 ATR 30
- R v Thames Magistrates’ Court; ex parte Polemis [1974] 2 All ER 1219
- R v Todd [1982] 2 NSWLR 517
- R v Wong [2002] NSWCCA 527; (2002) 137 A Crim R 120
- Re Will of Gilbert (1946) 46 SR (NSW) 318
- Rohan v R [2018] NSWCCA 89
- Sabra v R [2015] NSWCCA 38; (2015) 257 A Crim R 33
- Sayer-Jones v R [2024] NSWCCA 54
- Sayer-Jones v The Director of Public Prosecutions [2019] NSWSC 1615
- Scook v R [2008] WASCA 114; (2008) 185 A Crim R 164
- Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145