Citation: Regina v Joyce [2003] NSWCCA 84
Court: Court of Criminal Appeal, New South Wales
Date: 8 April 2003
Judge(s): Dunford J, Simpson J, Hidden J (Hidden J delivering the leading judgment)
Background
The applicant, a medical practitioner, faced retrial on two charges of dangerous driving causing grievous bodily harm following a collision on the Princes Highway in February 2001. The applicant had completed a twelve-hour hospital shift before the drive, and his vehicle crossed onto the wrong side of the road, injuring two people in an oncoming car. At the first trial in May 2002, the central issue was whether the applicant's driving was voluntary: the Crown contended he was dangerously fatigued, while the defence argued he had been in a dissociative "fugue" state. The jury could not reach a verdict on either charge.
An application to the Director of Public Prosecutions (DPP) to discontinue proceedings was refused. The applicant then applied to the District Court for a permanent stay of the retrial, arguing the DPP had failed to follow its own prosecution guidelines in deciding to proceed. That application was refused, as was a related application to compel production of internal DPP documents via subpoena.
The applicant sought leave to appeal against both interlocutory decisions under s 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether the District Court erred in refusing to order production of internal DPP documents sought by subpoena, which had been resisted on the ground of legal professional privilege.
- Whether the District Court erred in refusing to permanently stay the retrial as an abuse of process, based on the alleged failure by the DPP to properly apply its prosecution guidelines.
- Whether fresh evidence about the applicant's financial position and inability to fund the retrial, raised for the first time on appeal, warranted the grant of a stay on Dietrich principles (the right not to be tried without legal representation in serious criminal matters).
Decision
On the subpoena issue, the Court found no error in Dodd DCJ's refusal to order production of the internal DPP documents. His Honour had upheld the Crown's claim of legal professional privilege (described in the judgment as now more accurately termed "client legal privilege" under the Evidence Act), and the applicant had also failed to demonstrate any legitimate forensic purpose for seeking the documents.
On the permanent stay application, the Court applied the principles from Jago v District Court of NSW (1989) and Walton v Gardiner (1993), summarised through the earlier decision in R v H [2002] NSWCCA 355. The Court found that nothing before Dodd DCJ established that the retrial would be unfair or that the prosecution was bound to fail. The existence of conflicting expert evidence on automatism was characterised as precisely the kind of contested factual issue a properly directed jury should resolve. No error was demonstrated in the primary judge's reasoning.
On the Dietrich question, the Court received fresh evidence on appeal, including an affidavit deposing that the applicant had spent in excess of $80,000 on legal costs, could not fund the retrial, and had been refused legal aid. The Court declined to determine this issue, however, because it had not been argued before the District Court, the evidence was inadequate, and the Crown had not had the opportunity to respond. The Court noted it remained open to the applicant to bring a fresh stay application in the District Court on this basis, supported by full evidence of his financial position.
Orders Made
- Leave to appeal refused.
Key Takeaways
- A permanent stay of criminal proceedings is not available merely because a prosecuting authority's internal guidelines may not have been followed; an applicant must demonstrate that the retrial will be unfair or that the prosecution is necessarily destined to fail.
- The existence of conflicting expert evidence on a contested issue such as automatism is not a basis for a permanent stay: the Court of Criminal Appeal confirmed such disputes are properly matters for a jury, appropriately directed.
- Legal professional privilege (client legal privilege under the Evidence Act) can protect internal DPP documents from production on subpoena, particularly where no legitimate forensic purpose for their production has been shown.
- Refusing to determine a fresh Dietrich argument raised for the first time on appeal, the Court left open the prospect of a fresh stay application in the District Court, noting such an application might have "considerable merit" if the applicant would be forced to trial unrepresented, but emphasised that adequate supporting evidence and an opportunity for the Crown to respond were prerequisites.
- Under s 5F(4) of the Criminal Appeal Act 1912, the Court of Criminal Appeal has power to receive fresh evidence on an application for leave to appeal against interlocutory orders, though the relevance of that evidence must be established.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), Part 3.10 (client legal privilege)
Cases:
- Dietrich v The Queen (1992) 177 CLR 292
- Jago v District Court of NSW (1989) 168 CLR 23
- Walton v Gardiner (1993) 177 CLR 378
- R v H [2002] NSWCCA 355
- R v Crisologo (1997) 99 A Crim R 178
- Nye v State of NSW [2002] NSWSC 1267