AGOSTON v R [2008] NSWCCA 116

New South Wales Court of Criminal Appeal

CITATION: AGOSTON v R [2008] NSWCCA 116

HEARING DATE(S): 23 May 2008

JUDGMENT DATE: 18 July 2008

JUDGMENT OF: James J at 1; Hoeben J at 76; Hall J at 77

DECISION: Grant leave to appeal, dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - permanent stay of criminal proceedings - unfitness to be tried

Commonwealth Act Crimes Act (Cth) LEGISLATION CITED: Criminal Appeal Act Customs Act Mental Health (Criminal Procedure) Act (NSW) State Act

R v Hakim (1989) 41 A Crim R 372 CASES CITED : R v Sexton (2000) 77 SASR 405 R v WRC (2003) 59 NSWLR 273 Subramaniam v The Queen (2004) 211 ALR 1

PARTIES: AGOSTON, Peter Gabriel Commonwealth Director of Public Prosecutions

FILE NUMBER(S): CCA 2007/15098

COUNSEL: P Hastings QC / M Buscombe (Appellant) D Staehli SC / P McDonald (Crown)

SOLICITORS: MDA Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0808

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 18 February 2008

IN THE COURT OF CRIMINAL APPEAL 2007/15098

JAMES J HOEBEN J HALL J

FRIDAY 18 JULY 2008 AGOSTON, Peter Gabriel v R Judgment 1 JAMES J: Peter Gabriel Agoston applied for leave to appeal pursuant to s 5F of the Criminal Appeal Act against an interlocutory judgment of his Honour Judge Freeman of the District Court, refusing to grant a permanent stay of criminal proceedings against the applicant for five alleged offences of defrauding the Commonwealth under s 29D (since repealed) of the Crimes Act (Cth) ("the Act" or "the Commonwealth Act"). No certificate within s 5F(3)(a) of the Criminal Appeal Act was given by the primary judge and, accordingly, an appeal lies to this Court, only if this Court gives leave to appeal. However, no submission was made on behalf of the Crown that leave to appeal should not be granted.