R v HOULTON [1999] NSWCCA 100

New South Wales Court of Criminal Appeal CITATION : R v HOULTON [1999] NSWCCA 100 FILE NUMBER(S) : CCA 60493/98 HEARING DATE(S) : 18 May 1999 JUDGMENT DATE : 18 May 1999

REGINA (Crown)

PARTIES : v

Edward Joseph Curtis HOULTON (Applicant) JUDGMENT OF : James J at 31; Barr J at 2; Carruthers AJ at 32

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 94/51/0236 LOWER COURT JUDICIAL OFFICER : Bell DCJ

DN Howard (Crown) COUNSEL : SE Loomes (Applicant) CK Smith (Crown) SOLICITORS : H Schleiger & Associates (Applicant) CATCHWORDS : Criminal Law - indictment - application for permanent stay of proceedings refused - whether leave to appeal should be granted ACTS CITED : s 5F Criminal Appeal Act R v Carter, Court of Criminal Appeal 5.9.95 unrep R v Steffan (1993) 30 NSWLR 633 CASES CITED: R v Matovski (1989) 14 NSWLR 720 Jago v District Court (1989) 169 CLR 123 Walton v Gardiner (1992-1993) 177 CLR 378 R v Nicholson, Court of Criminal Appeal 22.7.98 unrep DECISION : Leave to appeal refused

IN THE COURT OF CRIMINAL APPEAL 60493/98

JAMES J BARR J CARRUTHERS AJ

Tuesday, 18 May 1999 REGINA v Edward Joseph Curtis HOULTON JUDGMENT

1 JAMES J: I will call upon Barr J to give the first judgment. 2 BARR J: This is an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act against an order made by his Honour Judge Bell in the District Court on 12 August 1998 refusing a permanent stay of proceedings on an indictment charging the applicant with eighty-five counts of fraudulent misappropriation. The acts constituting the offences are said to have been committed between August 1989 and September 1992, when the applicant was practising as a solicitor. The total sum involved exceeds $400,000. 3 His Honour's order was an interlocutory judgment or order for the purposes of s 5F, but since his Honour has not certified that it is a proper one for determination on appeal the applicant may not proceed with the appeal without the leave of this Court. Leave will be granted only where the decision the subject of the application is attended by sufficient doubt as to warrant the matter being argued on appeal, or where the interests of justice otherwise require the intervention of the Court at the interlocutory stage. R v Carter, Court of Criminal Appeal, 5 September 1995, unreported; R v Steffan (1993) 30 NSWLR 633; R v Matovski (1989) 14 NSWLR 720. 4 The principles to be applied in an application for a permanent stay of proceedings may be found in Jago v District Court (1989) 169 CLR 123 and Walton v Gardiner (1992-1993) 177 CLR 378. The summary of Deane J in Jago v District Court at 60 will suffice for present purposes. His Honour there said: An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process. 5 The broad history of this matter may be summarised as follows. In August 1994 the applicant was charged. On 20 October 1994 he was committed to the District Court for trial. On 3 April 1995 a draft indictment was served. On 26 February 1996 the applicant was arraigned at Coffs Harbour and pleaded not guilty to the charges. On 20 May 1996 the trial was due to commence at Coffs Harbour but a misunderstanding had occurred about whether the trial should be by jury or by judge alone. The Crown required a trial by jury but the hearing time had apparently been estimated as appropriate for a judge alone trial. It appears as though the Court had insufficient time to hear the trial. As well, the applicant served medical evidence on the Crown, some of which was fresh, disclosing an intended defence of non-insane automatism. The trial date was vacated. The revised estimate was up to one month of hearing time. 6 The trial was fixed to commence on 21 July 1997 but in May 1997 the fixture was vacated because it was realised that there would be insufficient time to hear the trial at the forthcoming sittings. This is unfortunate because a special request had previously been made by counsel for the applicant on the occasion of the vacation of the first hearing date that a special fixture be arranged. 7 On 23 June 1997 the applicant wrote a letter to the Attorney-General raising a number of matters, particularly the applicant's financial condition and the fact that he had been advised that his grant of legal aid was about to be terminated. The letter was treated as a no bill application and in a reply dated 4 November 1997 the Director of Public Prosecutions informed the applicant that it was intended to proceed with the trial. Insofar as that circumstance delayed the setting down of a hearing, therefore, there was a delay of a little over five months. 8 On 18 May 1998 there was a third trial date. In view of the estimated hearing time, namely about a month, and of the risk that there might be insufficient time for the case to be heard at Coffs Harbour in ordinary sittings, a judge made a special visit to that city intending to hear the matter, no matter how long it took. Unfortunately, the fixture had to be vacated, this time by consent, because of new material which emerged in a report of a psychiatrist, Dr Rickarby, bearing on the health of the applicant and his ability to cope with a trial. 9 Judge Bell heard the application which resulted in the order against which leave is now sought to appeal on 11 August 1998 and delivered judgment on the following day. He received an affidavit from the applicant, who was cross-examined. Documents were tendered, including a statement of facts. Some of the documents have been put before this Court and the Court has a transcript of the evidence and a copy of his Honour's reasons for judgment. 10 As appears from his Honour's reasons for judgment, the applicant's principal grounds in support of the application were as follows: