Citation: Sayer-Jones v R [2025] NSWCCA 198
Court: Court of Criminal Appeal, NSW
Date: 19 November 2025
Judge(s): Harrison CJ at CL
Background
The appellant was convicted on 21 July 2023 of one count of perverting the course of justice under s 319 of the Crimes Act 1900 (NSW). His conviction appeal, reduced to a single ground, alleged a miscarriage of justice because the Crown allegedly departed at trial from a pre-trial position that certain civil proceedings were not a vexatious abuse of process. That appeal was listed to commence in the Court of Criminal Appeal on 26 November 2025.
On 17 November 2025, the day before his appeal was to be heard at first instance by the Acting Registrar, the appellant filed an application under s 12 of the Criminal Appeal Act 1912 (NSW) seeking production of six categories of documents from the respondent. Those documents included police statements, a disclosure affidavit, and correspondence relating to the Crown's alleged case theory at trial. The Acting Registrar declined the application on 18 November 2025, and the appellant sought review of that decision before Harrison CJ at CL.
Legal Issues
- Whether the Acting Registrar's refusal of an application to produce documents under s 12 of the Criminal Appeal Act 1912 should be confirmed on review.
- Whether the appellant's contention that a new "vexatious concoction theory" had emerged only from the respondent's submissions filed on 12 November 2025 was correct.
Decision
Harrison CJ at CL confirmed the Acting Registrar's decision, identifying at least three reasons for doing so.
First, the appeal had been the subject of thorough case management by the Acting Registrar for some time. The appellant had ample opportunity to seek production of documents he intended to rely on, and the late filing of the application was not adequately explained by the circumstances.
Second, the appellant himself conceded that a successful production order would have required the hearing to be vacated less than a week before it was due to begin. The history of case management in the Court of Criminal Appeal did not support an outcome that would produce that result.
Third, the primary factual premise of the application was rejected. The "vexatious concoction theory" was not a novel development arising from the respondent's recent submissions. On the contrary, it formed the very subject matter of the appellant's remaining ground of appeal, and it was unsurprising that the respondent's submissions addressed it given its prominence at the original trial.
Orders Made
• Acting Registrar Clayton's decision declining Mr Sayer-Jones' application for production of documents is confirmed
Key Takeaways
- The Court of Criminal Appeal confirmed the Acting Registrar's refusal to order production of documents sought less than a week before a listed appeal hearing, in circumstances where case management had been ongoing for a substantial period.
- A party's concession that a successful interlocutory application would necessitate vacation of a hearing weighed significantly against the application being granted.
- Late interlocutory applications in criminal appeals are assessed in the context of the full case management history, and unexplained delay in seeking relief can be fatal to such applications.
- Under s 12 of the Criminal Appeal Act 1912 (NSW), a Registrar's decision on document production applications is subject to review, but the reviewing court may confirm the decision where there is no proper basis to depart from it.
- Where a ground of appeal itself places a particular issue at the centre of the case, a respondent's submissions addressing that issue do not constitute a new or surprising development justifying late interlocutory relief.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice)
- Criminal Appeal Act 1912 (NSW), s 12 (production of documents)
Cases cited: None cited in the judgment.