MA v R; AD v R

BELL CJ: This is an application for leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) from an interlocutory judgment (the primary judgment) of Pickering SC DCJ (the primary judge) declining to grant a permanent stay of proceedings.

MA and AD (the Applicants) were charged with two counts of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW). AD was additionally charged with four counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). Because they were both under the age of 18 when they are alleged to have committed the offences, the names of the Applicants have been anonymised pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), as has the name of the complainant (CW).

The first two counts related to the alleged assault of CW by MA and AD effectively simultaneously in a bathroom of a suite at the Skye Hotel in Parramatta on 2 March 2019. The counts against AD were alleged to have occurred straight afterwards, also in (but after MA had left) the bathroom.

The application for a stay was brought on the basis that, during a conference on 15 April 2021 (the April Conference), the solicitor advocate for the prosecution, Mr Thomas Buckingham, had improperly informed the complainant, CW, of evidentiary gaps in her witness statement made to the police on 18 March 2019 (the first statement) and weaknesses in the prosecution case, and had ‘coached’ her in relation to her evidence and how to deal with challenges likely to be made to her evidence when under cross examination at trial.

Shortly following the April Conference, following an email from a solicitor in the Office of the Director of Public Prosecutions (ODPP) to police requesting that a “further clarification statement” be taken, CW made a second police statement (the second statement) which contained various further alleged recollections over and above those that had been recorded in the first statement. Notably, they picked up on matters that had been raised with CW and emphasised during the April Conference. The second statement was served on 23 April 2021. No disclosure was made of the notes of the April Conference at this time.

In circumstances described more fully below, it was not until August 2022 that a set of the April Conference notes was disclosed by the ODPP. Because of their centrality to this urgent appeal, a copy of those notes, redacted only to anonymise the identity of the complainant and other young persons, is annexed to this judgment. The many portions of the notes that have been italicised represent particularly problematic aspects of the April Conference although the notes must be read and considered as a whole, including in the context of the solicitor advocate seeking to discharge his statutory obligations of certification and compliance with the DDP’s Guidelines on prosecutorial conduct as well as objects under the Victims Rights and Support Act 2013 (NSW) (VRSA).

The notes as reproduced and annexed to these reasons contain numbered paragraphs for ease of reference and are divided into two columns: the first representing statements made by the solicitor advocate and the second containing, often in abbreviated form, the complainant’s response.

On appeal, although not necessarily before the primary judge, the Crown accepted that the manner in which the solicitor advocate conducted the April Conference was improper although it was not conceded that that conduct was deliberately improper. This qualification garners some support from a finding of the primary judge. Thus, having set out [43] of the April Conference notes, his Honour said:

In another passage of his reasons, the primary judge said:

Following the disclosure of the April Conference notes, the Applicants contended that the April Conference constituted impermissible coaching of a central prosecution witness, namely the complainant, with the consequence that the Applicants’ trial would be rendered unfair, and/or that to continue the prosecution would bring the administration of justice into disrepute.

The primary judge heard the stay application from 20-22 February 2023 and gave judgment on 23 February 2023. His Honour was profoundly critical of the conduct of the solicitor advocate, finding, amongst other matters, that he had “completely tipped off the complainant” as to evidentiary gaps in her first statement; “created a real deception” by the non-disclosure of the April Conference notes; and twice expressed the view that he did not think that there was a reasonable prospect of conviction of the Applicants in light of the conduct of the solicitor advocate.

It is relevant to note that his Honour was also profoundly critical of aspects of the practice of the ODPP and of aspects of the guidelines furnished by the Director of Public Prosecutions (the DPP) to Crown Prosecutors pursuant to s 13(1) of the Director of Public Prosecutions Act 1986 (NSW) (the Guidelines). I will return to these in more detail below. They provide important context to the present proceedings.

The primary judge also expressed the view on a number of occasions in his lengthy, ex tempore judgment, that there were “systematic” (by which it is assumed he meant “systemic”) problems in the ODPP. Although his Honour did not rely on this “finding” as part of his reasoning process, it will be necessary to make some observations in relation to these aspects of the primary judge’s reasons later in this judgment: see [100]-[101] below. The Applicants on appeal sought to marginalise the significance of the primary judge’s references to “systematic” problems with the DPP’s Guidelines whilst the Crown attacked the findings as unwarranted and not reasonably open on the evidence.

In relation to the broad complaint of witness coaching, the primary judge said:

Notwithstanding strong (and justified) criticisms of what transpired in the April Conference including having “completely tipped off the complainant” as to evidentiary gaps in her first statement, the primary judge refused the application for a permanent stay of proceedings on the basis that his Honour considered that the Applicants could still receive a fair trial, largely because, in his Honour’s view, the jury at any trial would be capable of determining the complainant’s credibility and reliability, and because the Applicants had in fact, as a result of the disclosure of the April Conference notes, been armed with material, namely the April Conference notes, with which they could powerfully attack the recollection of the complainant and introduce doubt as to whether her recollection of events had been contaminated by her conference with the solicitor advocate. The primary judge referred to the accused as having, as a result of the disclosure of the April Conference notes and the two statements of CW, “all the ammunition”.

The essence of the primary judge’s reasoning was as follows:

The primary judge did, however, grant a temporary stay, staying the matter until the Crown paid the Applicants’ costs thrown away by the Crown’s “behaviour in the trial”, pursuant to R v Yavuz (No 3) [2018] NSWSC 573.

By notices of appeal dated 9 March 2023, the Applicants seek leave to appeal, and ask this Court permanently to stay proceedings against them. Mr Walker SC, who appeared for AD, and whose oral submissions were adopted by Mr Wilson SC, who appeared for MA, accepted that the decision from which leave to appeal was sought involved the exercise of an ultimate discretion such that House v The King principles applied.

The following four grounds of appeal were advanced, with principal reliance in oral submissions being placed upon grounds 2 and 3:

It is convenient, first, to identify the principles relevant to a grant of a stay of criminal proceedings. These were not in dispute between the parties.

In La Rocca v R [2023] NSWCCA 45 (La Rocca) at [34], I summarised the principles relating to permanent stays of criminal proceedings. That summary was accepted by both parties and is as follows:

Proposition (viii) recognises that mitigatory measures may be taken by a judge to negative or at least reduce any unfair prejudice that may otherwise arise. Moreover, as we live and work in an imperfect world, perfect justice is not always and may rarely be attainable although judges strive conscientiously to ensure that all trials and other proceedings occur in as fair an environment as possible. The High Court has spoken of “whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness”: R v Edwards (2009) 83 ALJR 717; [2009] HCA 20 at [23]. The notion of “unacceptable injustice” recognises that a fair trial is not to be equated with a perfect trial: see also Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [89].

In X7 v R [2014] NSWCCA 273; (2014) 246 A Crim R 402 at [92] (X7), Bathurst CJ made the point that:

In Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti), the Court said at [57] (omitting footnotes):

In the course of argument, Mr Walker placed particular reliance upon the judgment of Keane J in Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 (Strickland) and the notion that the courts must be vigilant not to water down, permit or too readily seek to accommodate departures from rigorous standards of propriety that are expected of those who participate in our system of criminal justice. Such infractions, Mr Walker insisted, should not be “waved through”, using the language of Keane J at [107]:

The parties were agreed that, ultimately, a decision whether or not to grant a permanent stay of proceedings is heavily fact-specific. Not every prosecutorial impropriety will result in the drastic remedy of a permanent stay of a prosecution.

The parties were also broadly agreed as to the principles to be applied to determining whether the conduct of a lawyer, and in particular a prosecutor, had lapsed from permissible assistance into “coaching”. The starting point, in this regard, must be the rules regulating professional conduct.

Rules relating to the ethical and professional conduct of solicitors and barristers in terms of their interactions with witnesses or potential witnesses play an extremely important role in our legal system, and form part of the duties of legal professionals which are owed to the Court for the proper administration of justice in this State.

Thus, rule 24 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, entitled “Integrity of evidence—influencing evidence”, provides:

Rule 29 of the same rules relates specifically (and additionally) to prosecutors. That rule relevantly for present purposes requires a prosecutor fairly to assist the court to arrive at the truth, and to seek impartially to have the whole of the relevant evidence placed intelligibly before the court (r 29.1) and not to press the prosecution’s case for a conviction beyond a full and firm presentation of that case.

The Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers’ Rules) relevantly provide:

Rule 70 provides that:

Propositions taken from the case law in relation to the coaching of witnesses relied upon by the Applicants included that:

In Majinski, Martin CJ, with whom Buss JA and Mazza JA agreed, held that there was no evidence that any coaching had occurred, and rather it appeared that the complainant had simply volunteered particular information. Summarising relevant authorities, his Honour held (at [32]):

His Honour then held, applying those principles to the case before the Court, (at [40]):

His Honour then went on to hold that in showing the complainant a photograph of Mr Majinski, the prosecutor had acted inappropriately in circumstances where she ought to have been aware that the complainant had previously given a description of him that did not correspond with his true appearance. It was, to use Martin CJ’s words (at [41]), “fraught with the risk that the complainant would modify his description of the offender so as to correspond with that depicted in the photograph”, although that risk did not eventuate, and “the result [was] that defence counsel was able to take whatever advantage could be taken from the discrepancy between the complainant’s description of the offender, and the appearance of the appellant, in cross-examination and in submissions to the jury.”

In the course of argument on appeal, Mr Walker accepted that improper prosecutorial conduct may operate differentially, impacting the putative future trial to different degrees, thereby opening up the possibility that only a partial stay of proceedings may be appropriate. This concession, rightly and appropriately made in my view, was reflected in the following exchange:

Mr Walker also accepted that there may be degrees of prosecutorial impropriety, and the extent of any impropriety needs to be carefully analysed and weighed in any application for a stay of proceedings, whether on fairness grounds or to prevent the administration of justice being brought into disrepute.

Before turning to a closer analysis of the relevant facts and primary judgment, there are certain matters of statutory context which must be noted.

The first relevant statutory provision concerns charge certification. Section 66 of the Criminal Procedure Act 1986 (NSW) provides as follows:

This procedure of charge certification replaced the previous procedure of committal by a Magistrate. That system, which operated until 30 April 2018, provided for a Magistrate to receive evidence and determine that there was a “a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence” (see s 64 of the Criminal Procedure Act 1986 as at 29 April 2018). If the Magistrate so determined, the Magistrate had to commit accused person for trial. Otherwise, the accused person was to be discharged.

Next, the VRSA contains, in Division 2 of Part 2, the Charter of Victims Rights. A “victim” is relevantly defined in s 5(1) as:

Section 6.1 of the VRSA provides:

Section 6.5(1) of the VRSA provides that:

Section 6.5(2) of the VRSA provides:

To be considered together with s 6.5 of the VRSA and s 66 of the Criminal Procedure Act are various prosecution guidelines issued by the Director of Public Prosecutions pursuant to s 13(1) of the Director of Public Prosecutions Act 1986 (NSW).

Guideline 5.4 provides that:

Guideline 5.6, headed “Consultation, resolving charges, and discontinuing prosecutions”, provides that:

Guideline 5.8, entitled “Conferences”, provides that:

Also to be noted is Guideline 13.4 which relevantly states that:

Pursuant to s 165(2) of the Evidence Act 1995 (NSW), it is open to a party to criminal proceedings to seek a warning to the jury from the trial judge as to the unreliability of certain evidence, informing the jury of why certain evidence may be unreliable. Subsections 165(2)-(5) provide that:

Section 293A of the Criminal Procedure Act 1986 (NSW) should also be noted. It provides:

As will be seen, the potential availability to the Applicants of a s 165 warning in respect of CW’s evidence and an undertaking by the Crown not to seek a s 293A direction in respect of CW’s evidence were advanced as potential mitigatory measures against any unfairness that may otherwise flow from the improper conduct of the solicitor advocate in coaching CW in the way that he did.

Against the background of this statutory context and legal principles, it is necessary to turn to the relevant forensic facts, namely the making of the first statement in March 2019, the April Conference in 2021, the making of the second statement and its ultimate disclosure.

The complainant’s first statement was made on 18 March 2019. It was relatively brief, running to 29 paragraphs in just over four pages.

In it, CW described how, on 2 March 2019, then aged 17, she attended the Sydney Mardi Gras together with two friends, before travelling back to Parramatta from where one of her friends was to be picked up by her parents. CW had intended, at this point, to go home, but instead attended a room at the Skye Hotel after one of her friends was informed that there were a group of people there, some of whom she knew. Both MA and AD were there when CW arrived although she did not know them.

The complainant’s first statement recorded that she drank three “Coronas from the bottle” over about four hours. At about 1am, the first statement records that the complainant lay down on the floor “as everyone else was laying on the bed and lounges that were in the room”. The complainant then recalled asking MA for a hug with him then lying down next to her. AD lay down thereafter on her other side, leaving her “sandwiched”. MA was then said to have “got up and pulled [CW] by [her] arms up off the ground using both [her] hands” and that AD also got off the floor and both “pulled [CW] using [her] arms towards the bathroom.” CW said that she “felt like I was being dragged to the bathroom by my arms but I did not try and pull back.”

CW’s statement then recorded in four paragraphs that, once in the bathroom, she was subjected to a sustained course of sexual intercourse by MA and that “AD made me give him head”. It was these acts which gave rise to the two charges against each applicant of aggravated sexual assault. The first statement recorded CW’s feelings of being “panicked”, “very scared” and being “frozen”. She said:

CW recounted that after he had ejaculated, MA left the bathroom and that she was “allowed to stop performing head on AD”.

The statement then continued by describing what transpired between AD and the complainant after MA had left the bathroom. It is necessary to set that evidence out:

These alleged assaults formed the basis of the second set of counts made only against AD. One significant difference between CW’s account of her alleged assaults by AD after MA had left the bathroom, and the account of events before he had done so, is that it was only in the case of the former that, on her account, CW articulated verbally her opposition to what was occurring: “No that hurts, don’t do that”; “I… kept saying “No, no”; “I’m tired I want to go to sleep.”

The first statement did not record the communication of such verbal opposition to what had occurred when MA, AD and CW were in the bathroom together. As shall be seen, this was a difference of evident forensic concern to the solicitor advocate when he came to speak to CW more than 2 years later in April 2021, in particular in relation to the prosecution’s need to prove beyond reasonable doubt that not only was CW not consenting to the assaults but that this was known to the accused.

On the other hand, the first statement did record CW’s evidence that, after the alleged incidents, MA said, in the presence of CW and her friend who I will refer to as G, “Don’t report us, cause it’s six years in gaol”, to which CW says she said “It’s fine. Don’t worry.”

On 17 October 2020, MA and AD were arrested and charged with one count each of aggravated sexual assault in company (contrary to s 61J of the Crimes Act).

On 11 January 2021, a partial brief of evidence was served on MA’s and AD’s respective representatives. The matter was adjourned in the Children’s Court on 15 January 2021 and 26 February 2021, and was listed for Charge Certification on 9 April 2021.

On 22 March 2021, a solicitor within the ODPP held a conference with CW, her support person, and a Witness Assistance Service Officer. A contemporaneous note records that the attendees discussed the DPP’s role, the nature of the criminal process generally, the giving of evidence, the role of cross-examination and the need to be prepared for it. The note also recorded the discussion of trial procedure, such as jury empanelment, directions and similar procedural matters, as well as what the complainant could expect in the lead-up to trial. The solicitor also foreshadowed that there would be likely to be further charges filed against both MA and AD.

In a question of some relevance, at the end of the meeting, CW’s support person (her boyfriend) asked a question, which is recorded, together with the answer, in the following terms:

On 9 April 2021, the matter was adjourned to 23 April 2021.

The April Conference took place on 15 April 2021 and must be understood in the context of the statutory provisions set out at [40]-[50] above, and the obligations of charge certification and interactions with the victims of crimes or apparent crimes required by the Charter of Victims Rights. As the solicitor advocate said in evidence in chief on the application for a permanent stay of proceedings:

The solicitor advocate also expressed his understanding in his evidence in chief that “victims/complainants should be appraised of the charges that are being prosecuted and any decision or possible decision that charges may be changed or withdrawn. Also pursuant to the guidelines and pursuant to the delegations instrument - the DPP’s delegations instrument.”

Key features of the April Conference have been italicised in the record of the conference annexed to these reasons although the conference notes must be read as a whole. They disclose, and the primary judge accepted, that there was nothing objectionable about the way in which the Conference commenced and continued for some time. That is particularly so when the statutory context and associated obligations imposed on a charge certifier are appreciated.

However, as the Conference progressed, and no doubt in an attempt to respond meaningfully to CW’s questions, the bounds of propriety were crossed to some extent although, with one exception, no specific words were advanced by the solicitor advocate (SA) as to what CW could say. That exception is seen in [86]-[88] of the April Conference notes (with emphasis added):

Although not a suggestion as to the use of actual words, the solicitor advocate’s suggestion that there “could be more physicality involved” and his suggestion that there “there might be more to it” ([56]-[57]) was powerful in the context of his discussion of evidentiary deficits. In that context, and without reproducing them but providing cross references to particular numbered paragraphs in the April Conference notes, the notes disclose the solicitor advocate explicitly explained to CW his concern about the prosecution’s ability (or inability) to prove that MA and AD knew that CW was not consenting from the outset ([45]; [51]; [52]; [55]; [79]; [82]; [83]; [85]-[86]) and that CW appreciated this: [52].

The solicitor advocate sought confirmation that there was no verbal communication as to lack of consent in relation to the events whilst all three were in the bathroom: [72]-[75]. The following exchange occurred:

The vice in the solicitor advocate’s words - “If you don’t remember for example saying ‘no’ or ‘I don’t want this’” – is that, in the context of his repeated statements of concern about an evidentiary deficit in relation to the events in the bathroom involving both MA and AD, his question was necessarily suggestive of words which might fill the critical evidentiary gap. It should be noted that the solicitor advocate, in fairness to him, said that he “didn’t want” her to be saying a particular matter and that he was “not here to fill gaps”. This was consistent with other aspects of the Conference where he said that he could not put words into CW’s mouth (eg [55]) and these references probably provide the basis for the primary judge’s finding that the solicitor advocate’s interaction with CW did not amount to intentional coaching: see [8]-[9] above.

Following the April Conference, on 16 April 2021, the solicitor who attended the April Conference sent an email to the police officer in charge of the investigation requesting that a further statement be taken from the complainant. That email was sent on 16 April 2021 in the following terms:

This was followed by a further email sent on 20 April 2021 to the police:

A further four page statement by CW was prepared and signed on 21 April 2021.

The second statement indicated that CW wished to “change some things in it and add some details that I could not verbalise at the time.” It continued:

In relation to that aspect of her first statement (para [14]) that involved MA, AD and the complainant, CW proffered the following additional information:

Significantly, this information addressed the important evidentiary gap about which the solicitor advocate had expressed concern in the April Conference. This is seen in two ways. The description of the move to the bathroom involves evidence of physical resistance which was not present in the first statement. It also includes CW saying: “I am tired, I want to stay on the ground” – words of opposition to being moved of a kind that did not appear in the first statement.

The second statement also described CW as having wet herself when standing up in the bathroom prior to the alleged assaults commencing, and this eliciting the comment from MA saying that that was “gross”. It was an added detail, however, that did not appear in the first statement and which was certainly capable of conveying fear and lack of consent to the circumstances in which CW found herself. It was capable of calling into question whether MA and AD could believe, on reasonable grounds, that CW was consenting.

The next aspect of the second statement involved CW elaborating on her statement that AD “made me give him head” which contained greater descriptive detail of AD’s physical and forceful movements of CW’s head in this context as well as the manner in which MA was assaulting her at the same time. CW also volunteered that she didn’t remember MA having a condom on which was in direct contradiction of something she had said in her first statement.

In relation to what transpired after MA had left the bathroom and AD and the complainant were alone, it will be recalled that the first statement did include CW stating on a number of occasions her opposition to anal sex: see [60] above. That statement had also included her recollection that AD had said “Anal” prior to CW saying “No that hurts. Don’t do that.” Her second statement contained an apparent inconsistency in that she said “I don’t recall AD asking for anal”. The full context of her expanded account in the second statement should be set out:

An important aspect of this account is the intensification of CW’s verbal protest as compared to the first statement: see “I screamed”; “I remember finding my voice and screamed out “Stop” and “No”.”

The second statement also added detail about what transpired in the aftermath of the events in the bathroom. That account included the following additional detail:

On 23 April 2021, the complainant’s second statement was served on both Applicants without any mention of the April Conference.

On 23 April 2021, the matter was adjourned to 30 April 2021, and the second statement was served on both MA and AD.

Also, on or about 23 April 2021, further counts were added to the existing single count against each applicant. Each separately alleged sexual act became the subject of a separate count, such that one further count (of aggravated sexual assault) was alleged against MA, while a further five counts were alleged against AD (one of which was of aggravated sexual assault, and four of which were of sexual assault), as noted at [2] above.

On 29 April 2021, the solicitor advocate certified the six counts specified on the indictment.

On 30 April 2021, the Children’s Court further adjourned proceedings so a case conference could occur. That was held on 9 June 2021, and on 9 July 2021, the matter was committed for trial to the District Court at Parramatta. On 6 August 2021, the matter was listed for trial on 15 August 2022.

On 9 August 2022, following a subpoena issued on behalf of AD, a redacted set of notes for the April Conference (redacted in part for asserted privilege) was served.

On 11 August 2022, the notice of motion seeking a permanent stay of proceedings was filed.

On 12 August 2022, a second version of the redacted notes of the April Conference was served on the Applicants. There were no changes to the redactions but a different method was used to identify the redactions.

On 15 August 2022, an unredacted copy of the notes of the April Conference was served on the Applicants.

As noted earlier in these reasons, the primary judge found that the solicitor advocate had “tipped off” CW as to evidentiary gaps in her statement. The primary judgment was strongly critical of the manner in which the April Conference had been conducted and the subsequent delay in disclosure of the notes of the April Conference. That last point, had, however, been rectified by the time of the hearing of the stay application.

His Honour was particularly critical of certain of the DPP guidelines which the solicitor advocate had purported to follow and apply in his conference with CW. Thus his Honour said:

Although the primary judge in terms found that Guideline 5.6 does not encourage coaching, he offered the strong view that it was responsible for what he described and found to be “systematic problems” within the ODPP, following a submission to this effect by Mr Wilson. He expressed the view that there was “a system that actually encourages tipping off of complainants who are the main witnesses to legal issues in the case”. Examples of his extended discussion of this matter included the following:

Notwithstanding his Honour’s strong conclusions in this respect, he went on to say:

Given his Honour’s (correct) conclusion in this last respect, the hyperbolic tone and wide ranging assertions about practice and systemic problems within the ODPP and the drafting of the Guidelines was, in my view, excessive and unhelpful. No doubt the Director will give careful attention to both this judgment and the Guidelines issued by Director Babb and, as his Honour subsequently noted, the issues he raised were “really more of a role for discussions by the Bar Association, the Public Defenders”.

There may be scope for some clarification and an injunction as to the need for special care to be taken when discharging a certifier’s statutory duty in accordance with the Guidelines. To express, however and as the primary judge did, broad ranging and sweeping conclusions as to the existence of systemic problems within the ODPP in this State on the basis of inference and extrapolation from one case and not on the basis of evidence or proper investigation, especially in circumstances where such a conclusion was not necessary (and as his Honour recognised, ultimately not relevant) for the purposes of the decision before him, was inappropriate.

After the primary judge had put this issue to one side, he properly turned to a consideration of the facts of the particular case before him in order to consider “whether in the circumstance of this particular matter things are so significantly distorted by what has occurred that the two accused cannot get a fair trial that it cannot be solved at the trial that a jury cannot see this matter for a lack of a better expression, warts and all and make sure a fair trial occurs”.

His Honour’s judgment proceeded on the basis that the Crown would not seek to endorse the propriety of the solicitor advocate’s pre-trial conduct in the course of the prosecution nor would a direction be sought pursuant to s 293A of the Criminal Procedure Act. That section, as has been seen, provides for a trial judge to direct a jury in relation to differences in a complainant’s account of events that may be relevant to the complainant’s truthfulness or reliability, in particular that experience shows that:

Key aspects of his Honour’s dispositive reasoning were as follows:

Notwithstanding the primary judge’s finding that that he did not think that there was a reasonable prospect of conviction of the Applicants (see [11] above), Mr Walker eschewed any reliance upon an argument that a permanent stay should be granted because the prosecutions were bound to fail. Rather, his very strong emphasis in oral submissions was on the fact that, to permit the trial of the Applicants to proceed would bring the administration of justice into disrepute because of the direct impact of the solicitor advocate’s coaching on the central prosecution witness, CW, coupled with the strong reliance on and trust reposed by the criminal justice system in prosecutors as critical agents in the fair and impartial administration of justice.

In this respect, the Applicants referred to Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13 at [63], as well as to Deane J’s well-known observations in Whitehorn v The Queen (1983) 152 CLR 657 at 663-664; [1983] HCA 42 about the special role of prosecutors in the administration of justice whereby a prosecutor:

Deane J went on to note that some failures by prosecutors to meet proper standards will be insignificant; however, “on occasion”, a prosecutor’s failure to perform their function in accordance with the procedures and standards that the law requires may “so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial”.

On no view was the failure by the solicitor advocate to meet proper standards “insignificant” in the present case and there is obviously some correlation between the degree of egregiousness and centrality of the professional or ethical infraction and the impact on the fairness of any prosecution. The examination of the impact of the impropriety on the fairness of the proceedings is a necessarily nuanced exercise in every case. Some but not all infractions may be able to be mitigated, but the availability and efficacy of mitigatory measures will vary with the particular case.

At least in the context of assessing whether an accused will be deprived of a fair trial, considerations of whether a prosecutor’s misstep was deliberate, intentional or negligent or reckless are not so much to the point because the Court will look to the likely impact on the accused’s ability to obtain a fair trial. As explored below, questions of intentional or deliberate breach of prosecutorial standards may have a greater role to play when considering whether permitting a prosecution to go ahead would bring the administration of justice into disrepute. So much is consistent with the observations of Kiefel CJ, Bell and Nettle JJ in Strickland at [100], namely that, as a rule, “instances of deliberate or advertent reckless disregard of a duty or obligation … are conceived of as entailing greater moral culpability and for that reason their condonation is conceived of as more likely to bring the administration of justice into disrepute”.

The Applicants also invoked the observations of Finch J in Re Eldridge (1880) 82 NY 161 at 171 that:

Broadly speaking, the Applicants emphasised the centrality of CW’s evidence in the forthcoming prosecution, pointed to the force and potency, explicit and implicit, in the observations of the solicitor advocate to CW in the course of the April Conference; the primary judge’s finding that, even if not intentional or deliberate in any malign sense, the solicitor advocate’s conduct was at the very least reckless; stressed the discernible links or gap-filling in CW’s second statement which were referable to the April Conference; and noted the great difficulty that the Applicants would face in “unscrambling the egg” in any ultimate prosecution.

In answer, the Crown relied upon the primary judge’s reasoning as reproduced at [104] above and pointed to a number of mitigatory measures that could be taken by the ultimate trial judge to redress any unfairness to the Applicants.

On appeal, Mr Game SC, appearing for the Crown, made it clear that the Crown accepted (and would continue to accept for the purposes of any trial) that the solicitor advocate’s conduct during the April Conference had been improper, that the Crown would not seek a s 293A direction and would not resist a s 165(2) Evidence Act warning by the trial judge as to the possible unreliability of CW’s evidence in light of the admitted improper conduct. His only qualification in that regard was that the necessity for such a warning would depend upon the evidence CW ultimately gave. If it did not go beyond her first statement, it could not be said that her evidence had been contaminated by the interactions during the April Conference and thus no s 165 warning would be necessary. On the other hand, it seemed to be accepted that a warning would be appropriate if CW’s evidence at trial reflected any possible ‘contamination’ from the April Conference.

All of these matters relied upon by the Applicants in support of the stay of the prosecutions were powerful considerations but it was not suggested that the primary judge failed to take them into account in his assessment of whether or not the prosecution should be stayed because of the inability to obtain a fair trial. It remained necessary for the Applicants to demonstrate House v The King error.

The first ground of appeal was that the trial judge erred in concluding that the Applicants could have a fair trial by taking a wrongly confined view of unfairness, it being submitted that the primary judge focussed on the question whether the evidence, in its final presentation, could be evaluated fairly by the jury to the exclusion of “intrinsic procedural unfairness that resulted from the circumstances of the prosecution”. In short it was put that the conduct of the solicitor advocate was “so incompatible with the role and duties of an independent prosecutor in our adversarial system of justice that it has altered the nature of the trial”.

The April Conference may have altered the way the trial was likely to proceed in a number of ways but that is not necessarily with the consequence that the trial will be rendered unfair: for example, the Crown indicated before the primary judge (and confirmed on appeal) that it would not seek a direction under s 293A of the Criminal Procedure Act during the trial, a matter that will only redound to the advantage of the Applicants; the solicitor advocate will not appear as counsel in the proceedings; defence counsel will have a basis in the April Conference notes to cross examine and attack the credibility and reliability of CW’s account of events that they would not otherwise have had. That also is a matter that will redound to the advantage rather than the disadvantage of the Applicants.

Mr Walker described this last matter as a “spurious advantage” in oral address but, with respect, it is difficult to accept this characterisation. In the event that CW goes beyond her first witness statement in her evidence in chief, the April Conference notes provide a basis for defence counsel to suggest to her that she was told about the weaknesses in her original statement on repeated occasions and has tailored her evidence as a result of the April Conference and the solicitor advocate’s suggestion to emphasise physicality and communicated opposition to what had (allegedly) transpired. Counsel would also be likely to draw upon and challenge CW with her statement that she wanted both of the Applicants to be charged and that, even if a verdict were to come in as a not guilty verdict, she wanted them to be charged with aggravated sexual assault: see April Conference notes [91]-[92]. Further, as pointed out at [83]-[84] above, aspects of CW’s second statement contradicted or arguably contradicted aspects of her first statement.

To the extent that the Applicants submitted that there was or would be “no forensic capacity to test [CW’s] evidence against other evidence”, this overlooked the fact that police also obtained a witness statement from CW’s friend, G, to whom she said certain things on coming out of the bathroom: see [121] below. To the extent that the Applicants criticised the primary judge for not formulating any judicial direction that could ameliorate the unfairness created by the solicitor advocate’s conduct, this is and would be a matter for the trial judge, with any direction to be crafted in light of the actual evidence that CW gave.

The key point to be noted, however, in relation to the first ground of appeal is that the primary judge did not take an unduly narrow view of conceptions of fairness or what was required in a fair trial. No error of law was established, and no other basis was established to impugn the primary judge’s exercise of discretion or to attack his Honour’s assessment that the Applicants would not be subjected to unacceptable unfairness in any trial, notwithstanding the solicitor advocate’s conduct. The first ground of appeal is not made out.

Even if there were some issue with the primary judge’s assessment in this regard, I would not have granted leave to appeal on this ground in light of Mr Game’s clear concession (which would be continued at trial) as to the impropriety of the solicitor advocate’s conduct, non-opposition to a s 165 warning being given (see [113] above) and indication that the Crown itself would not seek a s 293A direction from the trial judge. The particular significance of the first two matters is that the trial judge could provide reasons referable to the solicitor-advocate’s conceded improper conduct for any s 165 warning. It would then be for the jury, on a properly informed basis, to make an assessment to the criminal standard of the credibility and reliability of CW’s account of the events in question. The mitigatory effect of a s 165 warning would be reinforced, moreover, by the Crown agreeing not to seek any s 293A direction.

It should also be borne in mind that this is not a case where CW’s second statement was so different from her first as to work unfairness to the Applicants, and to deprive them of enjoying a fair trial. A number of points may be made. In her first statement, CW had said that, after she came from the bathroom, MA said to her in the presence of CW’s friend G, who had confronted him, “Don’t report us, cause it’s six years in gaol”, to which CW says she said “It’s fine. Don’t worry.” It would be open to the jury to consider whether, if accepted as having been made, this statement by MA provided a basis for concluding that he was conscious that he had committed an unlawful sexual assault to which CW had not consented. So also, CW said in her first statement that she had said to AD “No that hurts, don’t do that”; “I… kept saying “No, no”; “I’m tired I want to go to sleep.” This was evidence that a jury would need to assess in its deliberations even if CW’s evidence from her second statement was assessed as an unreliable amplification, encouraged by the solicitor advocate, and was the subject of a s 165 unreliability warning by the trial judge.

These two grounds were related. In effect, Mr Walker complained that the primary judge had not focussed sufficiently or at all on the alternative basis for the stay application, namely that to permit the prosecutions to proceed in light of the contamination of the complainant’s evidence would bring the administration of justice into disrepute.

Implicit in his argument was the proposition that, while permitting an unfair trial to go ahead would be an example of bringing the administration of justice into disrepute, the administration of justice could still be brought into disrepute even if measures were available to the trial judge to mitigate any degree of unfairness to a satisfactory extent. This point was made in Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42 and Moti at [10], as noted by Bathurst CJ in X7 at [93].

Mr Walker submitted that the primary judge failed to appreciate that arguments made (and accepted by him) as to “systematic” issues in the ODPP flowing principally from guideline 5.6 were deployed as a basis for showing that the administration of justice would be brought into disrepute on the facts of the present case, as opposed to more generally. As has been noted, the primary judge took the view that what he considered to be “systematic” issues in practice within the ODPP could not be used by him to found a stay of proceedings. It was submitted that this was to fail to apply his conclusions to the facts of the present case. There was force, in my view, in this criticism.

The primary judge did not separately consider whether to permit the prosecutions to proceed would bring the administration of justice into disrepute in light of the conduct of the solicitor advocate, and the likely contamination of CW’s evidence. Not to stay proceedings in the face of this conduct would be, in Mr Walker’s language, borrowing from that of Keane J in Strickland, to “wave through” the ethical infraction by the solicitor advocate in a way that would bring the administration of justice into disrepute.

While I would grant leave to appeal on these grounds and uphold them, in re-exercising the discretion of the Court, I do not consider that a stay should be granted on this separate, independent basis.

The reasons why, in my opinion, the administration of justice would not, in my opinion, be brought into disrepute if the prosecution of the Applicants were permitted to continue are as follows:

Bearing in mind these considerations and noting that a permanent stay of criminal proceedings is an exceptional remedy, I would not grant a stay of the proceedings on the basis that their continuation would bring the administration of justice into disrepute. I borrow the language of Gageler J in Strickland at [163] (albeit dissenting in the result):

To pick up the language of Kiefel CJ, Bell and Nettle JJ in Strickland at [106], this is not a case in which there is a defect in process so profound as to offend the integrity and functions of the Court.

Having re-exercised the discretion, it is not necessary to address this ground.

The orders of the Court should be:

WARD P: I agree with Bell CJ.

SWEENEY J: I agree with the orders proposed by the Chief Justice, and with his Honour’s reasons for those orders.