R.v. JOHNSON [2001] NSWCCA 465

Reported Decision : 125 A Crim R 564

New South Wales Court of Criminal Appeal

CITATION : R.v. JOHNSON [2001] NSWCCA 465 FILE NUMBER(S) : CCA 60247/01 HEARING DATE(S) : 23 October 2001 JUDGMENT DATE : 23 November 2001

PARTIES : Regina - Appellant Raymond Richard JOHNSON - Respondent JUDGMENT OF : Hodgson JA at 1; Simpson J at 2; Barr J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0577; 96/11/0679 LOWER COURT JUDICIAL Stewart DCJ OFFICER :

COUNSEL : Mr P.G. Berman SC for the Crown Mr C. Steirn SC for the respondent SOLICITORS : S.E. O'Connor for the Crown C.J. Ford for the respondent CATCHWORDS : Stay of proceedings on indictment - whether stay order justified LEGISLATION CITED : Criminal Appeal Act 1912 s5F(5) Legal Aid Commission Act 1979 s57 Jago v The District Court of New South Wales (1989) 168 CLR 23 CASES CITED: Moevao v The Department of Labour [1980] 1 NZLR at 482 Barton v The Queen (1980) 147 CLR 75 at 111 R v Nicholson (1998) 102 A Crim R 459 DECISION : See Judgment at Paragraph 46

IN THE COURT OF CRIMINAL APPEAL

60247/00 Hodgson JA Simpson J Barr J

23 November 2001 Regina v Raymond Richard Johnson

Judgment 1 HODGSON JA: I agree with Barr J. 2 SIMPSON J: I agree with Barr J. 3 BARR J: This is an appeal brought by the Crown under s.5F Criminal Appeal Act 1912 against an order made by Stewart ADCJ permanently staying criminal proceedings against the respondent, Raymond Richard Johnson. 4 It appears that the Crown case in the proceedings will be that during 1994 and 1995 the complainants, Vicki Robertson and Barry O'Donnell, had drug dealings with the respondent. On 28 June 1995 the respondent was arrested and held in custody. He sent a message to the complainants asking them to go to his house and "clean up" the premises. This, I take it, meant that they should remove anything the presence of which might incriminate the respondent. They went there as requested and under a large rock in the garden found the sum of $270,000 in cash, some jewellery and a handgun. They handed those things over to the police. The respondent was later released on bail and found out what the complainants had done. There was an arrangement whereby Robertson was to attend certain premises at Hoxton Park to deliver drugs. The respondent knew about the delivery and decided to attend as well. He also asked an acquaintance of his, one O'Brien, to attend at the same time and place. When Robertson arrived they were waiting for her. They were both carrying handguns. They demanded to know where O'Donnell was. Robertson refused to tell them and denied having handed anything to the police. They told her that they would hold her until she told them. They threatened to kill her. She named the motel where O'Donnell was staying. They took her there against her will, using her car. When they arrived there was a discussion between the respondent, O'Brien and O'Donnell about the missing property. O'Brien punched O'Donnell in the face and cut his lip. Robertson entered the premises shortly afterwards and saw blood on O'Donnell's face. She was put in fear. They tied O'Donnell to a chair and threatened violence if the money were not returned. They took Robertson to her house and there seized $16,000 in cash as well as a handgun. 5 The intention of the Crown was to have the respondent and O'Brien tried jointly. There were originally six counts against the respondent, namely a firearms offence concerned with the gun which was found in the garden, two kidnapping charges arising out of the detention of Robertson and O'Donnell respectively in the motel and the motor vehicle, a charge of assault occasioning actual bodily harm based on O'Brien's punching O'Donnell, a charge of assault which was concerned with the use by O'Brien of a firearm at the time of these events and a further firearms charge concerning the possession of a prohibited weapon. 6 The respondent was committed to the District Court for trial on 16 September 1996. Thereafter the trial was set down for hearing on no fewer that eight occasions, but for a multitude of reasons never started. The last such occasion was 9 April 2001. On that day the respondent and O'Brien were called on for trial and O'Brien's solicitor told the Court that he had been refused legal aid and had appealed against the refusal. That circumstance obliged the Court to postpone the commencement of O'Brien's trial pending the resolution of the appeal: Legal Aid Commission Act 1979 s.57. When the Court proposed that the respondent be tried alone his counsel, Mr Steirn S.C., informed the Court that the respondent had also been refused legal aid, though he had not appealed against the refusal. Mr Steirn told his Honour that he proposed to advise the respondent to appeal against the refusal and also to move the Court for an order permanently staying proceedings on the indictment. He said that the respondent would be ready to bring on such a motion on Wednesday 11 April 2001. After discussion, his Honour adjourned the matter to that day in anticipation of the respondent's filing such a notice of motion and evidence in support. 7 On 11 April Mr Steirn filed in Court a notice of motion seeking a permanent stay and read two affidavits sworn by his solicitor, Mr Christopher John Ford. In the first, dated 10 April 2001, Mr Ford swore that the basis of the application was that any continuation of the proceedings would be unfair and unjustifiably oppressive. He also swore on information and belief that the respondent had suffered prejudice as a result of matters beyond his control, that he had become impecunious as a consequence of legal costs thrown away, that the proceedings had been before the Court forty-four times, that the trial fixture had been vacated eight times, that the respondent would be forced to sell his house to repay debts, that his health had deteriorated since his arrest in 1995 and that he was suffering from depression, fatigue and long-term psychological stress. A chronology of the case was annexed to the affidavit. 8 In an affidavit sworn on 11 April 2001 Mr Ford said, among other things, that the respondent had twice applied for Legal Aid and had twice been refused. 9 Counsel also read an affidavit of the respondent dealing with his financial position and his state of health. 10 Also before his Honour were the District Court file, a transcript of certain earlier interlocutory proceedings before various District Court judges and a chronology prepared by the Crown. 11 The various dates on which the trial had been fixed to commence and the reasons why it did not may be summarised as follows - (i) On 23 February 1998 the Crown asked for an adjournment because O'Brien could not be tried jointly with the respondent. O'Brien was being tried or was about to be tried in an unrelated matter in Melbourne, also involving co-accused. The respondent did not oppose the application.