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Local Court 2 May 2025

R v Michael FOXMAN

[2025] NSWLC 3

Public order & justice offences
STAY OF PROCEEDINGS CONDUCT OF HEARING DISCUSSION OF THE NOTION OF FAIRNESS EXAMINATION EXAMINATION EXAMINATION

Citation: R v Michael Foxman [2025] NSWLC 3
Court: Local Court of NSW
Date: 2 May 2025
Judge: Donnelly LCM

Background

The defendant faced three criminal charges: doing an act with intent to pervert the course of justice, doing an act with intent to influence a witness, and intimidating a person with intent to cause fear of physical or mental harm. He brought a second application seeking a permanent stay of the proceedings against him.

The application arose largely from events at two hearing dates: 24 June 2024 and 6 December 2024. On the first date, the defendant was represented by counsel but repeatedly interrupted the proceedings from the body of the court, talking over his lawyer and over a prosecution witness while evidence was being given. On the second date, the defendant appeared unrepresented and attended court with a dog; he was placed in a remote room with audio-visual facilities.

The defendant contended that placing him in the remote room, and later ceasing his cross-examination, amounted to judicial and procedural misconduct that rendered the proceedings an abuse of process. He also sought a stay to pursue civil claims in the Federal Court against judicial officers, and raised additional grounds including alleged human rights violations, want of jurisdiction, and malicious prosecution.

  • Whether placing the defendant in a remote room during the hearing constituted an abuse of process or a denial of procedural fairness
  • Whether ceasing the defendant's cross-examination was an abuse of process
  • Whether the proceedings should be stayed to allow the defendant to pursue civil claims against judicial officers in the Federal Court
  • Whether the prosecution was malicious, or whether any other asserted ground justified a permanent stay

Decision

Use of the remote room. The magistrate examined the transcript of 24 June 2024 in detail, identifying more than thirty instances where the defendant interrupted proceedings, including interrupting a witness mid-answer. The magistrate had given the defendant clear warnings, acknowledged a mental health context raised by counsel, and offered the defendant an opportunity to be heard before the remote room was used. The magistrate held that this approach was consistent with the Full Federal Court's reasoning in Eastman v The Queen (1997) 76 FCR 9 and did not constitute an abuse of process. Procedural fairness, the magistrate found, requires that the prosecution also receive a fair hearing; it does not entitle a defendant to talk over his or her lawyer or interrupt witnesses. The remote room allowed the defendant to see and hear proceedings and to communicate instructions to counsel, thereby preserving the substance of his right to participate.

Cessation of cross-examination. Courts have an inherent power and a duty to control and, where necessary, cease cross-examination. The magistrate found that the defendant persistently failed to comply with judicial directions about the permissible scope of cross-examination and continued to interrupt and commentate rather than frame proper questions. Relying on Let's Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 and Libke v The Queen (2007) 230 CLR 559, the magistrate held that the decision to cease cross-examination was consistent with appellate authority and did not constitute an abuse of process.

Civil claims against judicial officers. The defendant sought a stay to pursue claims in the Federal Court against judicial officers involved in the proceedings. The magistrate applied the High Court's recent decision in State of Queensland v Mr Stradford (a pseudonym) [2025] HCA 3 and held that judicial officers of courts established under section 77(iii) of the Commonwealth Constitution enjoy immunity from civil suit. The appropriate mechanisms for challenging judicial conduct are appeals, collateral challenge, and disciplinary or removal processes, not civil litigation against the officer personally.

Remaining grounds. The magistrate rejected the malicious prosecution claim, reaffirming that decisions about who to prosecute and for what offences rest with prosecuting authorities, not courts, and that the defendant had identified no prosecutorial conduct that could justify a stay. All other grounds, including alleged human rights violations and want of jurisdiction, were found to lack any factual or legal foundation and were characterised as bare assertions.

Orders Made

• The second application for a permanent stay of proceedings is refused and dismissed.

Key Takeaways

  • A defendant's right to procedural fairness does not extend to talking over counsel, interrupting witnesses, or commentating during proceedings; the obligation of fairness also runs to the prosecution, as confirmed by reference to DPP (NSW) v Chaouk [2010] NSWSC 1418 and The Queen v Lewis (1988) 165 CLR 12.
  • Placing a disruptive defendant in a remote room with audio-visual access to proceedings, where the defendant can still see, hear, and communicate with counsel, can be a lawful and appropriate exercise of the court's powers to manage proceedings, consistent with Eastman v The Queen (1997) 76 FCR 9.
  • Courts retain the power to cease cross-examination altogether where a defendant persistently defies judicial directions and fails to ask proper questions, as confirmed by the NSW Court of Appeal in Let's Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 and the High Court in Libke v The Queen (2007) 230 CLR 559.
  • Following State of Queensland v Mr Stradford (a pseudonym) [2025] HCA 3, judicial officers of courts established under s 77(iii) of the Commonwealth Constitution are immune from civil suit; a stay of criminal proceedings to pursue such claims is therefore not available.
  • Decisions to prosecute rest with prosecuting authorities rather than courts, and allegations of malicious prosecution will not support a permanent stay unless prosecutorial conduct of the requisite character is actually identified.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 11, 26
- Crimes Act 1900 (NSW), s 418 (referred to in proceedings)
- Commonwealth Constitution, s 77(iii)

Cases
- Dietrich v The Queen (1992) 177 CLR 292
- DPP (NSW) v Chaouk [2010] NSWSC 1418
- DPP v Hamzy [2019] NSWCA 314
- Eastman v The Queen (1997) 76 FCR 9
- Henskens v Rudd [2020] NSWSC 533
- Jago v The District Court of NSW (1989) 168 CLR 23
- Let's Go Adventures Pty Ltd v Barrett [2017] NSWCA 243
- Libke v The Queen (2007) 230 CLR 559
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Newson v Ly [2001] NSWSC 1117
- State of Queensland v Mr Stradford (a pseudonym) [2025] HCA 3
- Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325
- The Queen v Lewis (1988) 165 CLR 12