Burton v R

1. [1]

   KIRK JA: The reasons for judgment of Yehia J capture my own reasons for concluding, at the end of the hearing of this matter, that leave to appeal should be refused.

2. [2]

   ROTHMAN J: I agree generally with the reasons for judgment of Yehia J. I agree with the orders her Honour proposes.

3. [3]

   I have some doubt on the accuracy of the authorities on the meaning of “interlocutory judgment or order”. There is authority for the proposition that an interlocutory order is any order that does not deal finally with the rights between the parties: see, amongst others, Gas and Fuel Corporation v Saunders (“Saunders”) (1994) 52 FCR 48. Further, an order or judgment is any practically operative or determinative adjudication of an issue in the proceedings: ABT v Bond (1990) 170 CLR 321; Onslow v Inland Revenue Commissioners (1890) 25 QBD 465; Maxwell v Keun [1928] KB 645; R v Ludeke, ex parte COA (1985) 155 CLR 513 at 526; Saunders, supra. A ruling on the admissibility of evidence, however, is not, in the context of s 5F an interlocutory order, otherwise s 5F(3A) would be otiose.

4. [4]

   Nevertheless, where, as here, the ruling or order is expressly temporary and does not disentitle a party from re-agitating the issue, leave should, almost invariably, be refused. As stated, I agree with the orders proposed by Yehia J and, other than to the extent inconsistent with the previous paragraph hereof, with her Honour’s reasons.

5. [5]

   YEHIA J: On 23 October 2023, this Court heard an urgent application for leave to appeal brought by Mr Paul Burton (“the applicant”), under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), against an order made by Harris DCJ (“the primary judge”) declining to permanently stay criminal proceedings against him. The applicant appeared unrepresented before the primary judge and before this Court.

6. [6]

   The grounds of appeal are not, however, limited to the primary judge’s order refusing the application for a permanent stay. They extend to an application for leave to appeal against the primary judge’s asserted rulings with respect to the availability of potential defences.

7. [7]

   At the conclusion of the hearing, the Court refused the applicant leave to appeal. What follows comprises my reasons for joining in that order.

Background

1. [8]

   The applicant is facing trial on an indictment alleging four offences of publish or broadcast the name of a child (referred to as “CWS”) with respect to whom proceedings had been brought before the Children’s Court of New South Wales, contrary to s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“CYPCP Act”). By way of indictment dated 14 October 2024, the applicant was charged with the following offences (which in each case were alleged to have occurred at Newcastle, in the State of New South Wales):

   1. (1)

      Count 1: On 4 July 2017, did publish the name of a child, CWS, with respect to whom proceedings have been brought before the Children’s Court of New South Wales.

   2. (2)

      Count 2: On 6 July 2017, did broadcast the name of a child, CWS, with respect to whom proceedings have been brought before the Children’s Court of New South Wales.

   3. (3)

      Count 3: On 11 July 2017, did publish the name of a child, CWS, with respect to whom proceedings have been brought before the Children’s Court of New South Wales.

   4. (4)

      Count 4: On 11 July 2017, did broadcast the name of a child, with respect to whom proceedings have been brought before the Children’s Court of New South Wales.

2. [9]

   The applicant is being tried jointly with a co-accused, Andrew John Katelaris who is facing a single charge contrary to s 105(2) of the CYPCP Act. Mr Katelaris is not joined in this appeal.

3. [10]

   The trial commenced before the primary judge on 14 October 2024 by way of pre-trial applications. At the time of hearing this appeal, a jury had not yet been empanelled. On 14 and 15 October 2024, various issues concerning the admissibility of evidence and the availability of potential defences, were ventilated before the primary judge. During the course of those pre-trial arguments, it became apparent that two Crown witnesses, namely Detective Senior Sergeant Catherine Turner and former Department of Family and Community Services (“FACS”) employee, Amanda Hills, were unavailable to give evidence in the trial due to ill health. The applicant indicated that he required both witnesses to be made available for cross-examination in order that he properly put his defences to the jury. The applicant asserted that the unavailability of these witnesses gave rise to irreparable prejudice to his case (“the witness unavailability ground”).

4. [11]

   On 16 October 2024, the applicant made an application for an order to permanently stay proceedings. The applicant also made an application, in the alternative, for a temporary stay of proceedings. The primary judge received written and oral submissions in respect of both applications. On 17 October 2024, the primary judge refused both applications and gave reasons for doing so (“the primary judgment”). The applicant seeks leave to appeal the order refusing a permanent stay of proceedings only.

The Primary Judgment

1. [12]

   The primary judge set out the background to the application. The applicant had previously made an application for a permanent stay before Ellis DCJ on 19 August 2024. That application was refused on 12 September 2024. As the applicant had previously made an application for a permanent stay, s 130A of the Criminal Procedure Act 1986 (NSW) was engaged. The Crown prosecutor in the Court below accepted, and the primary judge found, that it was not in the interests of justice for the earlier order to be binding.

2. [13]

   Her Honour briefly set out the principles relevant to a stay application referring to the following cases: Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77; Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34; Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50.

3. [14]

   The primary judgment included a summary of the Crown Case:

4. [15]

   The primary judge then turned to a consideration of the applicant’s primary submission that the unavailability of the Crown witnesses, Detective Senior Sergeant Turner and Ms Hills, gave rise to irreparable prejudice. As to the unavailability of Ms Hills, the primary judge concluded:

5. [16]

   As to the unavailability of Detective Senior Sergeant Turner, the primary judge noted that the applicant “identified as exceptional prejudice that he would be unable to cross-examine her about her perceived improper involvement in the preparation of the statement of another prosecution witness Ms Blair Collier.” Her Honour then continued:

6. [17]

   In addition to the witness unavailability ground, the applicant relied upon eight discrete arguments in support of the application for a permanent stay. The primary judge dealt with each of those arguments in the following way.

7. [18]

   In respect of the first argument, “that in refusing the application for a permanent stay, the community may take the view that the Court is facilitating a prosecution that is collaborating with witnesses who are avoiding court because of irregularities in their evidence”, the primary judge concluded that a wrongly held perception cannot add weight to the application for a permanent stay.

8. [19]

   In relation to arguments two to five – which inter alia asserted delay, the fact that others who had breached s 105 of the CYPCP Act had not been charged, that the likely penalty following a finding of guilt would not involve a conviction, and that purported evidence in the prosecution case supported the applicant’s belief that the child was removed illegally – the primary judge gave “considerable weight” to those matters. Her Honour concluded, however, that it is not for the Courts to limit or undermine what the Director of Public Prosecutions (“the Director”) determines appropriate to prosecute. The primary judge also noted that “it will only be in exceptional circumstances that a Court will order a stay of proceedings” and “that the interests of the accused and the public’s interest in the due administration of justice must be weighed in the balance.”

9. [20]

   Argument six asserted that any publishing or broadcasting of the child’s name ceased after at least 13 July 2017, at a time the applicant accepted “judicial oversight”. In that regard, the primary judge concluded that “is not a matter weighing in favour of the accused for a permanent stay” and “any defence of waiting for “judicial oversight”, that is an order or direction of the Supreme Court, is not a defence to the charges [the applicant] faces.”

10. [21]

    In respect of the seventh argument, that the charges were laid on the applicant by police assigned to the Child Abuse and Sex Crimes Squad, the primary judge considered this had to be a “red herring” which had no bearing “on the charges or evidence to be called in the trial, or the guilt or innocence of [the applicant].”

11. [22]

    The eighth and last argument related to the chronology of events resulting in the unavailability of Ms Hills, giving rise to concerns about the veracity of Ms Hills’ claim of unavailability. The primary judge noted that while the chronology of events resulting in the unavailability of Ms Hills “[gave] rise to suspicions” on the part of the applicant that she was simply avoiding cross-examination, there was evidence before the Court of Ms Hills’ treating doctor that she was so unwell, so as to be unavailable for a period of eight weeks.

12. [23]

    The primary judge ultimately concluded:

Grounds of Appeal

1. [24]

   By way of submissions dated 20 October 2024, the applicant sought leave to appeal from the primary judgment on the following grounds:

Standard of Appellate Review

1. [25]

   In Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24 (“Koschier”), Bell CJ (Harrison CJ at CL and Chen J agreeing) noted that there is a line of authority which describes the Court’s power to permanently stay criminal proceedings as “discretionary” with the applicable standard of appellate review being that stated in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ; (1936) HCA 40 (“House v The King”). However, Bell CJ held that there is no reason in principle why the “correctness standard” of appellate review, that was endorsed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32 (“GLJ”), cannot also apply to criminal proceedings: Koschier at [33] per Bell CJ (Harrison CJ at CL and Chen J agreeing). In GLJ at [26] the majority, comprising Kiefel CJ, Gageler and Jagot JJ (Steward and Gleeson JJ relevantly agreeing) said:

2. [26]

   Identification of the “correctness standard” as the applicable standard for review means that any appeal following a grant of leave proceeds by way of rehearing; as such an appellate court is required to decide the case for itself, with “limited deference” to the reasons of the trial judge: Koschier at [35]-[36] per Bell CJ (Harrison CJ at CL and Chen J agreeing) citing Warren v Coombes (1979) 142 CLR 531 at 552 (per Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9. Where the primary judge’s reasoning is “most significant”, in the case of an appeal from an interlocutory decision, is in the context of the threshold consideration of whether leave to appeal should be granted: Koschier at [43] per Bell CJ (Harrison CJ at CL and Chen J agreeing).

3. [27]

   In Koschier, the Chief Justice observed at [43], referring to Jordan CJ’s observations in The Will of Gilbert (1946) 46 SR (NSW) 318 at 323, that a “tight rein” ought to be kept upon interference with interlocutory orders of Judges of first instance. His Honour later observed, that “where interlocutory decisions are concerned, the ‘correctness standard’ of appellate review is not engaged unless, and until, leave to appeal has been granted”; and in that regard, the requirement of leave to appeal operates as an important filter: Koschier at [45] per Bell CJ (Harrison CJ at CL and Chen J agreeing).

The Question of Leave

1. [28]

   Various tests have been formulated for the grant of leave to appeal in the context of an interlocutory decision in criminal proceedings. In Koschier at [49] Bell CJ (Harrison CJ at CL and Chen J agreeing) held that the test to be applied in applications for leave to appeal pursuant to s 5F ought to be formulated in the ways set out in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 (“DAO”), O’Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2020] NSWCCA 19 (“O’Haire”), Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 (“Queanbeyan City Council”), and Rosamond v R [2022] NSWCCA 251 (“Rosamond”).

2. [29]

   The formulations referred to in Koschier at [49] namely, the need for a demonstration of error of principle (with a sufficient degree of clarity) and the possibility or likelihood of substantial injustice, were applied to the determination to refuse leave to appeal in Sayer-Jones v R [2024] NSWCCA 73 at [83] per N Adams J (Campbell J agreeing), which concerned an appeal of a decision to set aside two subpoenas in District Court criminal proceedings.

3. [30]

   In DAO, the applicant was charged with 18 sexual offences against six different complainants. Prior to the commencement of the trial, the applicant sought orders for a separate trial of the counts that related to each complainant. The Office of the Director of Public Prosecutions (“ODPP”) gave notice of its intention to adduce tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW) and proposed to rely on the evidence of each complainant, in respect of the counts pertaining to each other complainant. The trial judge ordered separate trials in respect of three of the complainants but declined to do so in respect of the remaining three, which were to proceed as a joint trial. The applicant sought leave to appeal against that decision pursuant to s 5F(3) of the Criminal Appeal Act. Ultimately, leave to appeal was granted, and the appeal dismissed. It was accepted on the hearing of the appeal that the trial judge’s decision, in substance, incorporated an evidentiary ruling that the evidence of three complainants was admissible as tendency evidence against the allegations of each other complainant. In DAO, the test for leave to appeal from an interlocutory decision in the context of criminal proceedings was considered by Allsop P at [74]-[76] in the following manner:

4. [31]

   Queanbeyan City Council related to an appeal from an interlocutory judgment of the Land and Environment Court. Queanbeyan City Council had been charged with an environmental offence of polluting waters and sought a permanent stay of the prosecution, which was refused for reasons including that there was a public interest in allowing the trial to continue. The applicant made an application for leave to appeal the primary judge’s refusal to stay the trial, under s 5F(3)(a). Leave to appeal was refused.

5. [32]

   In coming to that conclusion, Whealy JA (Hall and McCallum JJ (as her Honour then was) agreeing) set out the principles applicable to granting leave to appeal at [25]-[29]:

6. [33]

   In O’Haire the applicant informed the Land and Environment Court that he would enter a plea of guilty to eight environmental offences. Those pleas were formally noted and the matter was set down for a sentence hearing. Mr O’Haire filed a Notice of Motion seeking an order to correct the recording of guilty pleas pursuant to the “slip rule” on the basis that they had been mistakenly entered. The Notice of Motion was dismissed and the applicant filed an application for leave to appeal to the Court of Criminal Appeal pursuant to s 5F(3).

7. [34]

   On appeal, N Adams J noted that prior to the enactment of s 5F, the Supreme Court Act 1970 (NSW) allowed for interlocutory judgments and orders made in the District Court relating to criminal offences to be appealed to the Court of Appeal. That provision was repealed when s 5F was introduced. Her Honour referred to the second reading speech relating to the introduction of s 5F which referred to the rationale for the change (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 March 1987 at 16087):

8. [35]

   Her Honour considered the decision of R v Matovski (1989) 15 NSWLR 720 which related to an application for leave to appeal against a decision of a District Court judge’s refusal to stay a prosecution. In that decision, Gleeson CJ remarked at 723 (Lee CJ at CL and Grove J agreeing):

9. [36]

   Her Honour also considered the decision in R v Van Phu Ho (Court of Criminal Appeal (NSW), 18 July 1994, unrep) (“Van Phu Ho”), cited with approval by Ipp AJA in R v Chami; R v Sheikh [2002] NSWCCA 136 (Sully and Bell JJ agreeing as to the relevant principles) at [13]:

10. [37]

    In Rosamond, the accused was arraigned on 23 counts of dishonestly obtaining a financial benefit by deception contrary to s 192E of the Crimes Act. During the applicant’s trial, an application to discharge the jury and vacate the trial was made, on the basis that the Crown had unfairly expanded the scope of expert evidence adduced. The application was refused, and a subsequent application for a temporary stay was made on the basis that the applicant was “not in a position to meet” the expert’s evidence: Rosamond at [34]. The application for leave to appeal was refused.

11. [38]

    The Court observed that in determining whether or not to grant leave the Court ought to have “regard to the fact that one of the principal reasons for subjecting appeals from interlocutory orders in criminal cases to the requirement to obtain leave is to prevent, or minimise, the fragmentation of the process of criminal justice”: Rosamond at [8] per Garling J (Button and Wilson JJ agreeing), citing R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215 (“Einfeld”) at [23] per the Court.

12. [39]

    In addition to the cases identified by Bell CJ in Koschier, this Court has also considered the test for granting leave to appeal under s 5F in Hammoud v R [2020] NSWCCA 339 (“Hammoud”). In Hammoud, the applicant was charged with six sexual offences against two complainants. The trials were joint and the cross-admissibility of the complainants’ evidence was sought to be relied upon at trial. The applicant made an application for a separate trial in respect of the counts relating to each complainant, which was refused. The applicant subsequently sought leave to appeal that decision pursuant to s 5F(3)(a).

13. [40]

    In refusing leave to appeal, Hoeben CJ at CL (Bathurst CJ and Bellew J agreeing) referred to BM v R [2017] NSWCCA 253 at [9] in which Bathurst CJ (McCallum and Bellew JJ (as her Honour then was) agreeing) set out the principles relevant to a grant of leave to appeal in a case involving an application for separate trials. Relevantly, Hoeben CJ at CL affirmed at [56] (Bathurst CJ and Bellew J agreeing) that it is not open to an applicant to challenge a primary judge’s evidentiary findings pursuant to s 5F(3)(a), such not being interlocutory judgments or orders. His Honour noted at [57] that there is a "strong consideration against the grant of leave in respect of an order refusing separate trials where a ruling on the admissibility of evidence is a central issue" citing DAO at [16] per Spigelman CJ, at [106] per Allsop P and at [208] per Simpson J (Kirby and Schmidt JJ agreeing). It was held there was no error by the primary judge in allowing the Crown to rely on tendency evidence and ultimately leave to appeal was refused: Hammoud at [58] per Hoeben CJ at CL (Bathurst CJ and Bellew J agreeing).

14. [41]

    A number of principles can be distilled from the foregoing analysis of the previous cases:

    1. (1)

       A demonstration of an error of principle (with a sufficient degree of clarity) and the possibility or likelihood of substantial injustice in respect of an interlocutory decision, may give rise to a grant of leave to appeal: DAO at [76] per Allsop P; Koschier at [47] per Bell CJ (Harrison CJ at CL and Chen J agreeing).

    2. (2)

       Leave should not readily be granted pursuant to s 5F of the Criminal Appeal Act unless an appropriate case is made out, showing an error of principle apt to cause irregularity or injustice: O’Haire at [48] per N Adams J citing Van Phu Ho at 4 per Mahoney JA (Gleeson CJ and Dunford J agreeing); Queanbeyan City Council at [25] per Whealey JA (Hall and McCallum JJ (as her Honour then was) agreeing); Rosamond at [7] per Garling J (Button and Wilson JJ agreeing).

    3. (3)

       The Court should have regard to whether a grant of leave to appeal an interlocutory decision will prevent, or minimise, or fragment the process of criminal justice: Rosamond at [8] per Garling J (Button and Wilson JJ agreeing), citing Einfeld at [23] per the Court.

    4. (4)

       Where an interlocutory decision arises in criminal proceedings which involves a matter of public importance or an issue or issues where there are conflicting decisions at either first instance or appellate levels, an appellate court may be more inclined to grant an application for leave to appeal under s 5F of the Act: Koschier at [50] per Bell CJ (Harrison CJ at CL and Chen J agreeing).

    5. (5)

       A strong consideration against the grant of leave to appeal against an interlocutory order is where the admissibility of evidence is a central issue in the interlocutory decision. Findings as to the admissibility of evidence do not fall within the ambit of s 5F: Hammoud at [56]-[57] per Hoeben CJ at CL (Bathurst CJ and Bellew J agreeing); DAO at [16] per Spigelman CJ, at [74], [106] per Allsop P and at [208] per Simpson J (Kirby and Schmidt JJ agreeing).

Reasons for Refusing Leave to Appeal

1. [42]

   It is convenient to deal with Grounds 2 and 3 first because a threshold question arises as to whether this Court’s jurisdiction is enlivened under s 5F of the Criminal Appeal Act. Section 5F relevantly provides:

2. [43]

   It is clear that the jurisdiction of this Court to grant leave to appeal under s 5F(3)(a) is limited to interlocutory judgments or orders. The complaints the applicant raises in Grounds 2 and 3 do not involve an interlocutory judgment. The preliminary issue, therefore, is whether the primary judge made an “interlocutory order” (or orders) with respect to the defences available to the applicant at his trial. In order to amount to an “interlocutory order” within the meaning of s 5F(3), it must be established that the Court has made a command that something be done (or not be done), which is enforceable by the Court should there be non-compliance: R v Matthews [2018] NSWCCA 7 at [31] per the Court; KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249 at [55]-[56] per the Court; AF v R [2015] NSWCCA 35 (“AF”) at [32] per R A Hulme J (Hoeben CJ at CL and Harrison J (as his Honour then was) agreeing).

3. [44]

   Although it has been acknowledged that there is no “bright line test” for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other hand (see AF at [31] per R A Hulme J (Hoeben CJ at CL and Harrison J (as his Honour then was) agreeing)), it is readily apparent in this case that the primary judge did not make an “interlocutory order” with respect to the defences available to the applicant at trial. The applicant’s complaints, in this regard, are misconceived.

4. [45]

   The issue as to the available defences at trial arose during a voir dire on the admissibility of discrete pieces of evidence. The voir dire was conducted over three days between 14 and 16 October 2024, during which time the primary judge had to determine the admissibility of evidence including appropriate edits to various social media posts and interviews involving the applicant. It was in that context that there was discussion about the potential availability of defences including a defence of honest and reasonable mistake of fact, self-defence, duress, and necessity.

5. [46]

   That exercise was necessary because the primary judge had to determine the scope of the issues raised in the applicant’s opening address. Understandably, her Honour wanted to avoid having matters raised in the applicant’s opening address for which there was no evidentiary basis. The transcript of proceedings, as well as the primary judgment, is replete with references to the fact that the primary judge would not make final rulings until the evidence was adduced.

6. [47]

   Insofar as the primary judge limits the availability of the defence of honest and reasonable mistake of fact, that ruling was indicative only. Her Honour repeatedly explained (with the applicant acknowledging that he understood) that she was obliged to consider the evidence to determine whether it was capable of providing an evidentiary basis for each defence.

7. [48]

   In respect to the defence of honest and reasonable mistake of fact, the primary judge made a preliminary ruling that the defence was available in two ways:

8. [49]

   The primary judge did not make an interlocutory order with respect to the availability of self-defence (understood in this case as defence of another). The primary judge told the applicant:

9. [50]

   In answer to a complaint made by the applicant that the primary judge did not have the “right” to remove defences from the jury’s consideration, her Honour again emphasised:

10. [51]

    In addition to the multiple references in the transcript which clearly reveal that the primary judge did not make “interlocutory orders” with respect to the availability of defences, her Honour, in the primary judgment, emphasised that the limitations on the defence of honest and reasonable mistake of fact was by way of “a preliminary indication” only. The primary judge made no determination as to the availability of self-defence. Furthermore, for the purpose of determining the application for a permanent stay, the primary judge assumed that those defences may be available to the applicant.

11. [52]

    In the event that the primary judge limits the defences available for the jury’s consideration, that would be a matter properly left to consideration on appeal after trial (if a conviction resulted).

12. [53]

    I am comfortably of the view that the primary judge did not make “interlocutory orders” with respect to the availability of defences. This Court’s jurisdiction is not enlivened in relation to Grounds 2 and 3 and it is on that basis that leave to appeal was refused. I turn to consider the refusal of leave, in relation to Ground 1.

13. [54]

    An order refusing to permanently stay the proceedings, is an interlocutory order pursuant to s 5F(3) of the Criminal Appeal Act. Given the nature of that interlocutory decision, it is necessary to set out the principles relevant to a grant of a permanent stay of criminal proceedings, which were helpfully summarised by Bell CJ (Davies and N Adams JJ agreeing) in La Rocca v R [2023] NSWCCA 45 at [34]:

14. [55]

    It is important to note at the outset that there is no challenge to the legal principles applied by the primary judge in refusing the application to stay the proceedings. Instead, the applicant’s submissions in support of Ground 1 can be separated into two general categories. The first is the asserted irreparable prejudice arising from the unavailability of Detective Senior Sergeant Turner and Ms Hills. The second category relates to an asserted abuse of process. With respect to this second category the applicant relied upon the same combination of factors that were relied upon before the primary judge set out at [17]-[21].

15. [56]

    Witness unavailability has not ordinarily been sufficient for the grant of an order to permanently stay proceedings: see R v VPN (Court of Criminal Appeal (NSW), 4 March 1994, unrep); R v Fleming [2007] NSWSC 337 at [12]-[17] per Studdert J; Boulos v R [2008] NSWCCA 119 at [49]-[52] per James J (Hoeben and Hall JJ agreeing); R v Smith [No 1] [2011] NSWSC 725 at [93] per Buddin J; Webb v R (2012) 225 A Crim R 550; [2012] NSWCCA 216 at [68], [73] per Johnson J (Macfarlan JA and Beech-Jones J agreeing); JD v R [2013] NSWCCA 198 at [22] per the Court. The death or unavailability of witnesses may present obstacles to a fair trial, but they do not necessarily cause proceedings to be permanently stayed. There may be other ways in which the prejudice can be cured, for instance, by excluding evidence or by way of judicial direction. Each case must be determined on its own facts.

16. [57]

    In this case, the unavailability of Amanda Hills does not give rise to irreparable prejudice. Ms Hills made a statement, dated 27 October 2017, in which she explained that her role included the delegation to sign removal papers, on behalf of the Secretary of FACS, when a child or young person is to be removed without a warrant pursuant to s 43 of the CYPCP Act. On 19 May 2017, Ms Hills was managing the triage team at Charlestown Community Services Centre. On that date it was determined that CWS was at immediate risk of harm. Ms Hills prepared and signed the order for his removal. She attached a copy of that order as an annexure to her statement of 27 October 2017.

17. [58]

    The applicant submitted that it was crucial to his case to adduce evidence from Ms Hills that the child had been illegally removed by cross-examining the witness and having the opportunity to challenge her delegation. The applicant placed some reliance upon the fact that Ms Hills was not present when the child was removed. The applicant conceded however, during the voir dire, that he did not become aware of Ms Hills’ absence until sometime after the alleged breaches of s 105, and therefore it was not a factor that could have operated on his state of mind at the relevant time:

18. [59]

    Detective Senior Sergeant Catherine Turner was the original Officer in Charge of the investigation. In that capacity, she communicated with a prosecution witness, Blair Collier, to arrange the preparation of her police statement. At the relevant time, Ms Collier was the Executive Officer in the Office of the Secretary of FACS. Ms Collier’s statement of 27 November 2017 sets out a chronology with respect to the removal of CWS and related care proceedings. Ms Collier gives an account of accessing the applicant’s Facebook page and observing the posts that constitute the allegations. The statement also outlines the contact that Catherine Samuels, Director of Child Protection within FACS Legal, had with the applicant requesting that he remove Facebook posts which were in breach of s 105 of the CYPCP Act (and non-publication orders which had also been made pursuant to s 7(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of the Children’s Court proceedings).

19. [60]

    Ms Collier will be called to give evidence in the Crown case. Also available, is evidence of email communications between Detective Senior Sergeant Turner and Ms Collier between 13 and 28 November 2017. The email exchanges demonstrate Detective Senior Sergeant Turner’s efforts to compile Ms Collier’s statement. These communications disclose efforts on the part of Detective Senior Sergeant Turner to elicit affidavit material from Ms Collier, informing the latter that she would adjust her affidavit in accordance with the requirements of the ODPP and requesting an electronic version of the affidavit for “cut and paste” purposes and to “remove the bits not required.” In an email dated 14 November 2017, Detective Senior Sergeant Turner offered to send Ms Collier “examples of the other statements already supplied in this matter to assist [her] in preparing the statement quickly.”

20. [61]

    The applicant contends that the inability to cross-examine Detective Senior Sergeant Turner about these communications and other communications that may have taken place between them by putting to her the suggestion that they deliberately colluded to tailor evidence, significantly impairs his ability to challenge their credibility. The unavailability of Detective Senior Sergeant Turner is said to give rise to irreparable prejudice to the applicant.

21. [62]

    There are at least two difficulties with that contention. The first, is that it ignores the availability of the evidence of email communication between the two witnesses, which can be used to cross-examine Ms Collier, who will be called as a witness. The second difficulty is that the question of whether or not there may have been conversations between the two witnesses (other than the email communications) that may potentially go to the credibility of Ms Collier, is highly speculative.

22. [63]

    Furthermore, much of the evidence to be given by Ms Collier relates to accessing the applicant’s Facebook posts and observing the material that allegedly constitutes the offences. Her evidence relates to the communications sent to the applicant which put him on notice that he was in breach of s 105 of the CYPCP Act and requesting that he take down the relevant posts. Much, if not all, of that evidence is supported by the various exhibits referred to in the statement of Ms Collier.

23. [64]

    This is not a case where the unavailability of Detective Senior Sergeant Turner and Ms Hills results in irreparable prejudice to the applicant. To the extent that the applicant demonstrates a forensic disadvantage, judicial direction can adequately cure any resulting prejudice.

24. [65]

    In addition to the unavailability of Detective Senior Sergeant Turner and Ms Hills, the applicant relies upon a number of factors, as he did in the Court below, in support of the contention that the proceedings constitute an abuse of process.

25. [66]

    The applicant relies upon the delay in the proceedings and the related financial and psychological cost to him by reason of that delay. The applicant was charged on 21 December 2017. The applicant’s trial was listed to commence on 14 October 2024.

26. [67]

    An offence contrary to s 105(2) of the CYPCP Act, is an indictable offence that is to be dealt with summarily unless a prosecutor or charged person elects otherwise: Criminal Procedure Act Sch 1, Table 1, s 18. The applicant elected, as was his right, to have the matter determined by way of a jury trial. The delay in the proceedings coming to trial has not been occasioned as a result of delays in listings. The history of the litigation that has extended over many years was referred to by Button J in Burton v The Director of Public Prosecutions [2024] NSWSC 863. The background of the matter is, as his Honour noted at [6], recounted in many judgments of many courts including Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21; Burton v Local Court of New South Wales [2019] NSWSC 191; Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120; Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245; Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68; Burton v Babb [2020] NSWCA 331; Secretary, Department of Communities and Justice v Paul Robert Burton [2021] NSWSC 1285; Burton v Director of Public Prosecutions (NSW) (2021) 361 FLR 432; [2021] NSWSC 1230; Burton v Secretary, Department of Communities & Justice (formerly Family and Community Services) [2022] NSWCA 7; Burton v Director of Public Prosecutions (2022) 110 NSWLR 145; [2022] NSWCA 242; Burton v Babb [2023] NSWDC 103; and Burton v Babb [2023] NSWCA 242.

27. [68]

    The applicant was entitled to raise issues and initiate proceedings as he saw fit. However, it is somewhat ironic that the applicant now relies upon the delay in coming to trial, as one of the reasons asserting an abuse of process. This is not a case where evidence has been lost, or some other forensic disadvantage has been occasioned, because of the delay. As indicated above, the unavailability of two Crown witnesses, does not amount to irreparable or significant prejudice in this case. To the extent that any prejudice is occasioned to the applicant arising from the witnesses unavailability, it can be cured by judicial direction.

28. [69]

    The applicant’s contention that “literally millions of people everywhere” have breached s 105 by publishing the name of CWS, but have not been themselves charged, does little to advance the applicant’s case. The exercise of prosecutorial discretion is a matter for the Director.

29. [70]

    Similarly, the contention that even if found guilty, the penalty would not involve a conviction, does little to advance the abuse of process argument. For my part, that assertion is questionable, notwithstanding remarks made by previous judicial officers.

30. [71]

    The applicant also relies on “apprehended bias”, in support of the contention that the proceedings constitute an abuse of process. It is not entirely clear as to how the applicant relies upon “apprehended bias” in support of the abuse of process argument. The applicant appears to be asserting that there was collusion between Detective Senior Sergeant Turner, Ms Collier and a solicitor from the ODPP, to have the applicant charged by a member of the Child Abuse and Sex Crimes Squad and to tailor the statement of Ms Collier so as to exclude exculpatory material.

31. [72]

    There is no evidentiary basis, in my view, to support an assertion that there was collusion between these individuals and their respective Organisations to cause detriment to the applicant. In any case, to the extent that communications between these individuals is relevant to an issue at trial, the evidence is available by way of relevant email communications.

32. [73]

    The applicant does not challenge the legal principles applied by the primary judge in refusing to stay the proceedings. Not only is there no issue of principle raised by Ground 1, but there is no issue or error of principle that carries with it the possibility or likelihood of substantial injustice.

33. [74]

    It is for these reasons that I joined with the order refusing leave to appeal with respect to Ground 1.

    1. (1)

       Leave to appeal is refused.