R v MA; R v AD

1. [1]

   STERN JA: The central issue in this appeal, brought by the Crown under s 5F(2) of the Criminal Appeal Act 1912 (NSW), is whether the primary judge erred in making an order on 1 December 2023 (the “Order”), styled as a temporary stay, staying a criminal trial:

2. [2]

   As is immediately apparent from the terms of the Order, such order may be temporary or permanent in effect, depending upon whether or not the Crown indicates that Ms Anderson-James will be called or made available to give evidence at the trial. It is best described as a conditional stay of potentially permanent effect: see eg Leiper v R [2018] NSWCCA 117 at [14]; Marwan v Director of Public Prosecutions [2019] NSWCCA 161 at [42] (Leeming JA, R A Hulme J agreeing).

3. [3]

   The Order was made in proceedings involving two counts of aggravated sexual intercourse without consent in company, contrary to s 61J(1) the Crimes Act 1900 (NSW) (against the two respondents, “MA” and “AD”), and four counts of sexual intercourse without consent contrary to s 61I of the Crimes Act (against AD only). The offences are alleged to have occurred in the early hours of 3 March 2019 at the Skye Hotel in Parramatta. As the complainant, “CW”, and the two respondents were all under the age of 18 at the time of the alleged offences, their names have been anonymised pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). The respondents’ trial is now set down for November 2024 and the Court was informed that irrespective of the outcome of this appeal, there is no realistic prospect of an earlier listing.

4. [4]

   By way of background, it is common ground that on 15 April 2021 a conference took place between Ms Anderson-James, a solicitor in the Office of the Director of Public Prosecutions (“ODPP”), Thomas Buckingham, a solicitor advocate with the ODPP, and CW (the “April Conference”). The Crown now concedes that during the April Conference, Mr Buckingham improperly informed CW of evidentiary gaps in her witness statement made to police on 18 March 2019 and weaknesses in the prosecution case. Mr Buckingham then “coached” CW in relation to her evidence. Ms Anderson-James took a file note of that conference (the “File Note”) and the Court was informed that the Crown conceded that the File Note, whilst not verbatim, was “taken as accurately as [it] could be at the time”, and that it could be tendered by the respondents at trial if they wished with no point being taken as to its accuracy.

5. [5]

   Shortly following the April Conference, on 16 April 2019, Ms Anderson-James sent an email to Detective Senior Constable Elizabeth Hayes requesting that a further statement be taken from CW. Ms Anderson-James asked DSC Hayes to have CW “review her first statement and add to/clarify any portion as she sees fit.” DSC Hayes will be called as a witness at the trial.

6. [6]

   In this email, Ms Anderson-James also said that CW should be asked to comment upon why any new information was not contained in her first statement. Prompted by an email from Mr Buckingham dated 20 April 2019, Ms Anderson-James sent a further email to DSC Hayes requesting that she ask CW to explain what she meant when she said that AD “made” her perform oral sex. Those emails have been disclosed to the respondents, as have emails between Ms Anderson-James and Mr Buckingham following the April Conference. On 21 April 2021, CW made a further statement, which contained detail over and above what she had included in her first statement and which included details raised with her, and emphasised, during the April Conference. On 15 February 2022, Mr Buckingham completed a Charge Certification Report, relying upon CW’s second statement, certifying the charges against the respondents. The Charge Certification Report has also been disclosed to the respondents.

7. [7]

   Whilst CW’s statement of 21 April 2019 was disclosed to the respondents on 23 April 2021, the File Note was not disclosed until 9 August 2022, when it was disclosed in a redacted form (an unredacted version was served on 15 August 2022). That disclosure prompted an application on 11 August 2022 for a permanent stay of the criminal proceedings and which was refused on 23 February 2023. Both Mr Buckingham and Ms Anderson-James gave evidence on that application.

8. [8]

   The respondents unsuccessfully sought to appeal from this decision: MA v R; AD v R [2023] NSWCCA 233 (Bell CJ, Ward P and Sweeney J agreeing) (“MA v R; AD v R”). During that appeal proceeding, the Crown accepted, and indicated that it would continue to accept for the purposes of any trial, that:

   1. (1)

      The manner in which Mr Buckingham conducted the April Conference was improper although it was not conceded that it was deliberately improper: at [8] and [113];

   2. (2)

      The Crown would not endorse the conduct of Mr Buckingham at trial nor would it seek a direction pursuant to s 293A of the Criminal Procedure Act 1986 (NSW) to the effect that it is common for there to be differences in accounts of a sexual offence: at [103] and [113]; and

   3. (3)

      Depending on whether CW’s evidence strayed beyond the matters in her first statement, the Crown would not resist a warning by the trial judge under s 165(2) of the Evidence Act 1995 (NSW) as to the possible unreliability of CW’s evidence in light of the admitted improper conduct: at [113].

9. [9]

   The Court in MA v R; AD v R annexed a copy of the File Note to its judgment, with key features italicised: at [71]. That copy of the File Note is also annexed to these reasons.

10. [10]

    The matter was then relisted for joint trial commencing 27 November 2023. In emails of 6 and 7 November 2023 the Crown advised that Mr Buckingham would be called to give evidence at trial but that Ms Anderson-James would not be called. The reasons given were that:

    1. (1)

       The relevant evidence that Ms Anderson-James could give relates only to her email correspondence with DSC Hayes and this could be adequately established by evidence from DSC Hayes and other evidence such as the File Note; and

    2. (2)

       In addition, there was medical evidence which showed that it would be “fundamentally detrimental” to Ms Anderson-James’ wellbeing to be called to give evidence and “in circumstances where the relevant evidence that Ms Anderson-James could offer can be adequately established by other means, the interests of justice would in turn be harmed.”

11. [11]

    On the first day of trial MA and AD applied for orders either vacating the trial and listing the matter for mention on a suitable date or granting a temporary stay until Mr Buckingham and Ms Anderson-James were available to give evidence. In response to those applications, the primary judge made the Order from which the Crown now appeals.

12. [12]

    For the reasons that follow, this appeal should be allowed.

Non-publication

1. [13]

   The Court in MA v R; AD v R made orders restricting the publication of the reasons for judgment to the parties and their legal advisers until completion of trial. An order to similar effect should be made as regards these reasons, including because they include extracts from the reasons in MA v R; AD v R.

2. [14]

   Moreover, given that the identities of both Ms Anderson-James and Mr Buckingham are the subject of orders made under the Court Suppression and Non-publication Orders Act, within 14 days of the publication of this Court’s orders, the Crown should make such application as it considers appropriate for an order restricting publication or disclosure of these reasons for judgment, if it considers that any part of these reasons for judgment would tend to reveal the identity of Ms Anderson-James or Mr Buckingham.

Standard of appellate review

1. [15]

   During the hearing of this appeal the Court sought submissions from counsel as to whether the appropriate standard of appellate review was the correctness standard, held to apply where the issue was as to whether a permanent stay should be ordered on the grounds of abuse of process: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (“GLJ”), including in criminal proceedings: Koschier v R [2024] NSWCCA 24 at [33]-[34] (Bell CJ, Harrison CJ at CL and Chen J agreeing), or the House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 standard applicable to discretionary decisions. Both parties responded to this request by providing helpful supplementary written submissions.

2. [16]

   The Crown contends that, given the potentially permanent effect of the stay and the well-established principle that it is for the Crown to decide which witnesses are to be called: Whitehorn v The Queen (1983) 152 CLR 657 at 663; [1983] HCA 42 (Deane J), the only proper basis for making such an order would be that the trial would otherwise be an abuse of process as being either necessarily unfair, or involving such unfairness as to constitute an abuse of process, relying upon GLJ at [24] (Kiefel CJ, Gageler and Jagot JJ, Steward and Gleeson JJ agreeing at [96] and [161] as regards the standard of appellate review). Thus, the Crown contends, consistent with GLJ and Koschier, that this Court should approach its task on appeal by reference to the correctness standard of review.

3. [17]

   By contrast, the respondents contend that the Order was made in the exercise of the primary judge’s discretion. Thus, they contend, the House v The King standard is appropriate. In support of this contention, the respondents say that the Order is not akin to a decision with the consequence that the Court has refused to exercise jurisdiction, as was the case with the permanent stay ordered in GLJ: at [26] (Kiefel CJ, Gageler and Jagot JJ, Steward and Gleeson JJ agreeing at [96] and [161] as regards the standard of appellate review). Rather, the respondents contend that in making the Order, the primary judge was considering the risk of unfairness and what could be done to address that unfairness: see eg R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 at [128] (Bathurst CJ, Fullerton and Bellew JJ agreeing) (“Seller”).

4. [18]

   For the reasons set out below, I have concluded that in the circumstances of this case, the Order is, in substance, more akin to a permanent stay than a temporary stay. Moreover, given that the resumption of trial was made conditional upon the Crown calling or making Ms Anderson-James available, consistent with Whitehorn, the stay should not have been ordered unless the Court was satisfied that the failure to call Ms Anderson-James was such that the respondents would have been denied their fundamental right to a fair trial. Such a finding would be analytically similar to the juridical basis identified for a permanent stay in GLJ, being that there was “such unfairness or oppression to a defendant as to amount to an abuse of process”: at [24] (Kiefel CJ, Gageler and Jagot JJ, see also Gleeson J at [161] and Steward J at [95]). Thus, consistent with GLJ and Koschier, I would accept the Crown’s submission that, on appeal, a correctness standard applies.

5. [19]

   That is so notwithstanding that the primary judge plainly was not purporting to order a permanent stay and was purporting to put in place measures more akin to case management than a refusal to exercise jurisdiction.

6. [20]

   In any event, as is apparent from my analysis below, the same result would flow had I applied the House v The King standard of review.

Threshold for the grant of a temporary stay

1. [21]

   During the hearing of this appeal the Court also sought submissions from counsel as to the threshold for the grant of a temporary stay, having regard to the judgment of Leeming JA (R A Hulme J agreeing) in Marwan, identifying that there is “arguably some divergence in the authorities which formulate the test to be applied” for the grant of a temporary stay: at [22].

2. [22]

   In Dietrich v The Queen (1992) 177 CLR 292 at 311; [1992] HCA 57, in the context of the issue of unfairness arising from the unavailability of counsel, Mason CJ and McHugh J explained:

3. [23]

   Subsequently, in Re K [2002] NSWCCA 374 at [9]-[10], this Court (Beazley JA as her Excellency then was, Sully and Simpson JJ) agreed that the correct test to apply where an application is made for a temporary stay is whether there is a “risk” that the accused would not have a fair trial.

4. [24]

   In Seller (at [128]), Bathurst CJ (Fullerton and Bellew JJ agreeing) held:

5. [25]

   Bathurst CJ (Fullerton and Bellew JJ agreeing) found (at [218]) that the “possibility” relied upon in that case in support of a temporary stay was not such as to warrant such an order.

6. [26]

   In Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 at [64], Basten JA (Johnson and Adamson JJ agreeing), having referred to the extract from the judgment of Mason CJ and McHugh J in Dietrich set out above, refused a temporary stay, observing:

7. [27]

   In HO v R [2023] NSWCCA 245 at [91], Wilson J (Beech-Jones CJ at CL and R A Hulme AJ) agreeing, held:

8. [28]

   It is apparent that the Court in HO did not identify any divergence between the test derived from Dietrich and that applied by the Court in Gould.

9. [29]

   Having regard to this authority, the Crown submitted that the preferred formulation is that derived from Gould, and consistent with Dietrich and Seller, namely, whether there is reason to believe that the trial of the accused is otherwise likely to be unfair. The respondents submit that there is “no substantive difference” between the various formulations of the test, observing that no divergence was identified by this Court in HO.

10. [30]

    In my judgment, the Crown’s submission should be accepted. Consistent with the judgment of Mason CJ and McHugh J in Dietrich (at 311), some likely unfairness is required to warrant the grant of a temporary stay. Those cases in which the threshold has been phrased in terms of “risk” rather than “likelihood” are not inconsistent with that position.

Threshold for the conditional stay imposed in this case

1. [31]

   As is probably unsurprising, there is no body of case law as to the requisite unfairness which would justify the grant of a conditional stay of a criminal trial.

2. [32]

   Such an order is not uncommon where the relevant “condition” is the payment of costs: see eg R v Petroulias (No 19) [2007] NSWSC 536. Such a condition is far removed from that reflected in the Order in this case. In Leiper, the application made was for a stay until the Crown provided transcripts of surveillance device material: at [13]. The Court (Leeming JA, Bellew and Wilson JJ) observed (at [14]) of that application that:

3. [33]

   Given that in Leiper the Crown conceded (at [15]) that the primary judge had made a House v The King error, the Court considered for itself whether such a stay should be ordered. The Court recorded (at [42]) that the parties accepted the applicability of the threshold as stated by Bathurst CJ (Fullerton and Bellew JJ agreeing) in Seller (at [128]), and said that whether a stay in the terms sought should be made required “an assessment of the fairness of the applicant’s trial if no orders are made”: at [43]. Noting that the case for a stay was, “at best, weak”, the Court refused leave to appeal. It is apparent that, consistent with the agreed position of the parties in Leiper, the Court did not approach the application on the basis that, to succeed, it was necessary to show that the trial would be so unfair as to amount to an abuse of process.

4. [34]

   The respondents on this appeal contend that the appropriate threshold to apply in this case is that applicable to a temporary stay, observing that they are not aware of any authority for the imposition of a more demanding threshold for a conditional, as opposed to a temporary, stay.

5. [35]

   In my judgment, for the reasons set out below, the conditional stay ordered by the primary judge in the present case is in a somewhat different category to that sought in Leiper. In the particular circumstances of this case, such an order should not have been made unless the Court was satisfied that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial.

6. [36]

   First, the Order was made in circumstances in which it was clear that the Crown had made a decision not to call Ms Anderson-James to give evidence at the trial of the respondents. The primary judge’s understanding, as set out in his Honour’s ex tempore judgment, was that the Crown had “declined to call or make available the witness Ms Anderson-James at the present trial, or indeed at any trial”. The primary judge understood the Crown’s position to be both that Ms Anderson-James was not able “at present” to be called because of certain health issues, and that in any event, the Crown declined to call Ms Anderson-James or make Ms Anderson-James available in any trial because her evidence was irrelevant to the facts in issue or was otherwise available to the respondents. That is consistent with the Crown’s position as set out in the emails of 6 and 7 November 2023 (above at [9]). Thus, the factual premise for the Order was that the Crown would not satisfy the condition to which the stay was subject.

7. [37]

   Second, as is clear from the judgment of Deane J in Whitehorn (at 663), in a criminal trial it is for the Crown and not the judge to determine what witnesses will be called. However, in presenting its case, the Crown is required to comply with standards of fairness. As Deane J held (at 664):

8. [38]

   Consistent with this, in The Queen v Apostilides (1984) 154 CLR 563 at 575; [1984] HCA 38, the Court (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ) identified the following general propositions applicable to the conduct of criminal trials in Australia:

9. [39]

   More recently, in HO, this Court summarised (at [89]) the applicable principles as follows:

10. [40]

    Having regard to the principles derived from these cases, it would only be where there would be such unfairness as to deny to an accused the right to a fair trial that a court would be justified staying proceedings unless the Crown were to call, or make available for cross-examination, a particular witness.

11. [41]

    Third, and related to the first reason set out above, the position of the Crown before the primary judge was that EAJ [Ms Anderson-James] would not be called irrespective of whether her medical issues had improved before the respondents’ trial was listed to be heard. During the hearing of the respondents’ application for an adjournment or a temporary stay, the following exchange took place between the primary judge and the Crown after discussion as to the medical evidence:

12. [42]

    As is apparent from this passage, this was not a case where the Crown’s decision not to call Ms Anderson-James or make her available ultimately turned upon Ms Anderson-James’ medical condition. The clearly stated submission of the Crown was that Ms Anderson-James would not be called or made available in any event. It was thus clear that the Order made resumption of the criminal proceedings conditional upon the Crown reversing what it told the Court was its considered decision in the exercise of its prosecutorial discretion.

13. [43]

    Fourth, and of far less significance than the matters set out above, the medical evidence did not support a conclusion that Ms Anderson-James would not suffer from psychological distress were she required to give evidence at the respondents’ trial at a date in the future. That evidence comprised:

    1. (1)

       A certificate of capacity/fitness dated 23 May 2023 completed by Dr Phipps, a general practitioner, certifying that Ms Anderson-James had no current capacity for work on the basis of anxiety (against a background of pre-existing anxiety) until 23 June 2023;

    2. (2)

       A report dated 26 June 2023 from Ms Daly, a forensic psychologist, which appears to have been prepared for the purpose of an application for suppression orders over Ms Anderson-James’ identity; and

    3. (3)

       A letter dated 29 October 2023 from Dr Phipps.

14. [44]

    The certificate of capacity/fitness dated 23 May 2023 was of no real significance to the issues on the application.

15. [45]

    The report of Ms Daly contained the following:

16. [46]

    It is apparent that Ms Daly envisaged that Ms Anderson-James’ symptoms would reduce after a permanent suppression order was made (and it is common ground that a permanent suppression order was made before the hearing before the primary judge). As the respondents submit, the evidence of Ms Daly does not establish that Ms Anderson-James was suffering from an adjustment disorder in November 2023. Nor does it establish that Ms Anderson-James will suffer from psychological symptoms associated with the stress of giving evidence in the respondents’ trial. Conversely, as the Crown submits, Ms Daly’s report does suggest that the stress associated with these proceedings are likely to have caused Ms Anderson-James’ psychological symptoms, and that it was the removal or resolution of that “stressor” that was predicted to lead to her symptoms subsiding.

17. [47]

    This evidence did not support Ms Anderson-James being “unavailable” to give evidence in the respondents’ trial, as was conceded by the Crown during the hearing of the appeal. However, nor did it support a conclusion that Ms Anderson-James would not suffer from psychological symptoms were she required to give evidence in these proceedings at some date in the future.

18. [48]

    Dr Phipps’ letter was in the following terms:

19. [49]

    As with Ms Daly’s report, the Crown conceded that that evidence did not support Ms Anderson-James being “unavailable” to give evidence in the respondents’ trial. To the extent that Dr Phipps’ opinion was based upon Ms Anderson-James having recently given birth, that circumstance would be expected not to impact her were the respondents’ trial to take place at a date later than 27 November 2023. However, as the Crown submitted, Dr Phipps’ letter again draws a link between Ms Anderson-James suffering symptoms of psychological distress and her being requested to give evidence in court. Again, this evidence does not support a conclusion that Ms Anderson-James would not suffer from symptoms of psychological distress were she required to give evidence at the respondents’ trial at some date in the future (albeit without the complication of what Dr Phipps termed as Ms Anderson-James’ “vulnerable” postpartum state).

The reasons of the primary judge

1. [50]

   The primary judge, having summarised the medical evidence relied upon by the Crown, said:

2. [51]

   His Honour then directed himself by reference to the principles governing temporary stays, including by reference to the judgment of Bathurst CJ (Fullerton and Bellew JJ agreeing) in Seller (at [128]), set out above at [23].

3. [52]

   The primary judge then noted that:

   1. (1)

      The Crown will concede impropriety in the trial of the respondents;

   2. (2)

      The Crown had agreed to call Mr Buckingham and DSC Hayes at the trial; and

   3. (3)

      It seemed that CW would also be made available for cross-examination at the trial.

4. [53]

   His Honour found, however, that:

5. [54]

   Moreover, his Honour observed that when giving evidence on the voir dire during the hearing of the permanent stay application, Mr Buckingham did not accept that there was any impropriety on his part during the April Conference, including matters which are subject to the Crown’s concessions on impropriety. His Honour continued that whilst the Court cannot definitively know what a witness will say, “[Mr Buckingham] might well maintain a similar response to matters put to him at trial, whether on the voir dire or in his evidence before the jury.” The primary judge noted that Ms Anderson-James’ evidence on the voir dire during the hearing of the permanent stay application as to this was:

6. [55]

   His Honour found:

7. [56]

   As to the timing of the trial, the primary judge said:

Notice of appeal

1. [57]

   On 8 December 2023, the Crown filed a notice of appeal contending that the primary judge erred in granting a temporary stay of the proceedings until such time as Ms Anderson-James is available to give evidence. On 23 February 2024, the Crown sought to rely upon an amended notice of appeal, described by Senior Counsel for the Crown as “particulars” and to which there was no objection. The amended notice of appeal is in the following terms:

Consideration

1. [58]

   Ultimately, having regard to my conclusion, having considered the parties’ supplementary submissions as to the applicable threshold for the making of a conditional stay such as that effected by the Order, it is unnecessary to deal with the matters raised in the amended notice of appeal. This is because, as set out above, I have found that such an order should not have been made unless the Court was satisfied that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial. As is apparent from the primary judge’s reasons, as summarised above, the primary judge did not address that threshold. Rather, the primary judge addressed the significantly lower threshold applicable to the making of a temporary stay. In that way, his Honour erred. His Honour addressed the wrong question. Had it been necessary to do so, I would have found that that error was an error which merited appellate intervention having regard to the principles in House v The King.

2. [59]

   Nor did the circumstances justify the making of an order with the potentially permanent effect of the Order. I would reject the submission of Senior Counsel for AD that the inability of the respondents to cross-examine Ms Anderson-James during their trial would lead to the trial being unfair. For the purposes of this appeal, each of the submissions advanced by Senior Counsel for AD were adopted by MA.

3. [60]

   It may be, as Senior Counsel for AD submitted, there could be some forensic advantage to the respondents being able to cross-examine Ms Anderson-James before the jury, rather than relying upon the File Note and other documents. However, as against that, given the Crown’s concessions (set out above at [51]) and that Mr Buckingham, DSC Hayes and CW would be available for cross-examination, any such advantage is unlikely to be significant.

4. [61]

   There is also a possibility that, as submitted by Senior Counsel for AD, Ms Anderson-James, who was cross-examined on 21 February 2023 on the voir dire during the application for a permanent stay, may have some recollection of circumstantial matters which in some way shed additional light on the issues arising from what occurred during the April Conference. However, given that the Crown will not take any issue with the accuracy of the File Note and that Ms Anderson-James explained in her oral evidence on 21 February 2023 that her role during the April Conference was “to take the notes”, that is no more than speculation. Moreover, the extent or characterisation of the impropriety that occurred during the April Conference is not to the point. The point is as to the reliability of CW’s evidence bearing in mind what occurred during the April Conference. The material that goes to that issue is amply disclosed by the File Note.

5. [62]

   Whilst Senior Counsel for AD submitted that Ms Anderson-James had particular significance as being “the conduit” through whom contact was made with CW, the evidence does not go beyond the fact that Ms Anderson-James had one prior telephone conference with CW on 22 March 2021. In considering this submission, it is of some significance that in advance of giving evidence on 21 February 2023, Ms Anderson-James had been provided with the File Note and she also had had access to the emails she sent to DSC Hayes following on from the April Conference (described above at [4]-[5]). Whilst Ms Anderson-James did not have access to the notes of her telephone conference with CW on 22 March 2021, those notes do not suggest that there was any discussion of CW’s substantive evidence during that telephone conference. In those circumstances, it is nothing more than speculation to suggest that access to that document (or other surrounding emails, or the Charge Certification Report) might prompt some relevant additional evidence from Ms Anderson-James.

6. [63]

   Senior Counsel for AD submitted further that Ms Anderson-James may have recollection of other matters that occurred during the April Conference, such as demeanour or body language, which could be of relevance to the reliability of CW’s evidence. In my judgment, given how fully the exchanges are set out in the File Note (the accuracy of which will apparently not be disputed by the Crown), that the respondents can rely upon this document, and that Mr Buckingham will be made available to give evidence, again it is speculative to suggest that such matters would be of relevance to the issues at trial.

7. [64]

   I would add, as raised during the hearing of the appeal, that if there is any material change in circumstances, nothing I have said would prevent the respondents making such application as they think fit. In that regard, Senior Counsel for the Crown candidly submitted that if an issue arose as to the accuracy of the File Note at the respondents’ trial which impacted the Crown’s judgment as to the relevance of Ms Anderson-James’ evidence, it might reconsider its position and adopt a different position as to whether Ms Anderson-James would be called or made available to give evidence at the trial.

Conclusion

1. [65]

   It follows that the appeal should be allowed.

2. [66]

   The following orders should be made:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the order of the primary judge.

   3. (3)

      Restrict publication of reasons for judgment to the parties and their legal advisers until completion of trial.

   4. (4)

      Direct that the Crown should, within 14 days of the publication of these orders, make such application as it considers appropriate for an order restricting publication or disclosure of these reasons for judgment, beyond the completion of trial, if it considers that any part of these reasons for judgment would tend to reveal the identity of EAJ or TB.

   5. (5)

      Direct the Director of Public Prosecutions to notify the Associate to the presiding judge when the trial has been completed in order that restrictions of the publication of the reasons for judgment may be lifted.

3. [67]

   ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Stern JA. I agree with the orders proposed by her Honour and her Honour’s reasons for those orders. I would add the following comments, which I clarify, would not, in any way, detract from the reasons for judgment of her Honour.

4. [68]

   It seems clear to me that the trial judge considered that the terms of the order provided for a temporary stay. Unfortunately, the effect of the orders made is not temporary. It is an order that is a permanent conditional stay. It requires the Crown to call a witness, in default of which the trial would be stayed indefinitely (subject, of course, to any subsequent order).

5. [69]

   As has been pointed out by Stern JA, it is for the Crown to determine the witnesses that it will call. A failure to call an essential witness may result in an unfair trial and a miscarriage of justice.

6. [70]

   The learned trial judge was seeking to avoid any unfairness. Such a purpose is commendable. Nevertheless, the result could have been achieved by vacating the trial dates and listing it for some time after 12 months, which seemed to be the period after which the trial judge considered the witness would be more readily available.

7. [71]

   The other aspect, which the courts need now to consider, is the operation of s 38 of the Evidence Act 1995 (NSW). The effect of s 38 is that, if the witness were essential, the accused could call the witness and, assuming the witness is unfavourable, could obtain leave from the trial court to cross-examine the witness. The utilisation of s 38 has disadvantages, but they may, in this case, be more theoretical than practical.

8. [72]

   I reiterate that I agree with the orders proposed by Stern JA and with her Honour’s reasons.

9. [73]

   BUTTON J: I agree with Stern JA.