Kitchingman v R [2023] NSWCCA 4

Kitchingman v R [2023] NSWCCA 4

Leave to appeal was granted, but the appeal was dismissed because the primary judge did not err in refusing a permanent stay. The loss of medical records created some forensic disadvantage, but the primary judge permissibly found it was not of the magnitude claimed and could be considered at the special hearing. The applicant's inability to give evidence or instruct lawyers was acknowledged, but it was the reason the statutory special hearing process was engaged and could not by itself justify a stay. The evidence did not establish that a special hearing would be an affront to common humanity or that the refusal of a stay was manifestly unreasonable or plainly unjust.

Jurisdiction
Australia
Judgment Date
03 February 2023
Procedural Posture
Interlocutory Appeal Under Criminal Appeal Act 1912 (nsw), S 5 F(3)(a) From Refusal of a Permanent Stay of a Special Hearing in Criminal Proceedings / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['permanent Stay' 'special Hearing' 'unfitness to Stand Trial' 'delay' 'forensic Disadvantage' 'cognitive Impairment' 'physical Infirmity' 'interlocutory Appeal']
['criminal Law' 'criminal Procedure' 'mental Health and Cognitive Impairment Forensic Provisions'] ['permanent Stay' 'special Hearing' 'unfitness to Stand Trial' 'delay' 'forensic Disadvantage' 'cognitive Impairment' 'physical Infirmity' 'interlocutory Appeal']

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Procedural Posture

Interlocutory Appeal Under Criminal Appeal Act 1912 (nsw), S 5 F(3)(a) From Refusal of a Permanent Stay of a Special Hearing in Criminal Proceedings / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether a special hearing in the District Court is a proceeding on indictment for the purposes of Criminal Appeal Act 1912 (NSW), s 5F.' 'Whether refusal of a permanent stay of a special hearing is an interlocutory judgment or order for the purposes of Criminal Appeal Act 1912 (NSW), s 5F(3).' 'Whether the primary judge erred in assessing the forensic disadvantage caused by missing medical records.' "Whether the primary judge failed to give proper weight to the applicant's inability to participate in the hearing by giving evidence or instructions because of dementia." "Whether refusal of a permanent stay was unreasonable, plainly unjust, or contrary to common humanity in light of the applicant's deteriorating condition."]

Ratio Decidendi

Leave to appeal was granted, but the appeal was dismissed because the primary judge did not err in refusing a permanent stay. The loss of medical records created some forensic disadvantage, but the primary judge permissibly found it was not of the magnitude claimed and could be considered at the special hearing. The applicant's inability to give evidence or instruct lawyers was acknowledged, but it was the reason the statutory special hearing process was engaged and could not by itself justify a stay. The evidence did not establish that a special hearing would be an affront to common humanity or that the refusal of a stay was manifestly unreasonable or plainly unjust.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant the applicant leave to appeal from the judgment in the District Court of 2 November 2022 refusing a permanent stay.' 'Dismiss the appeal.']