R v Jamal [2008] NSWCCA 177

Procedural Posture

Crown Appeal Pursuant to S 5 F of the Criminal Appeal Act 1912 From an Interlocutory Judgment Staying Criminal Proceedings / Appeal in the New South Wales Court of Criminal Appeal From an Order of Sweeney DCJ Made on 8 February 2008

Legal Issues

1. 1 ["Whether the District Court erred in staying the respondent's trial until the Crown consented to trial by judge alone." 'Whether adverse pre-trial publicity meant the respondent could not receive a fair jury trial.' 'Whether an adjournment or stay for a defined period was an available and appropriate alternative to the conditional stay.' "Whether the court could make an order effectively interfering with the Director of Public Prosecutions' statutory discretion to consent to trial by judge alone."]

Ratio Decidendi

The conditional stay should not have been made. The primary judge erred by treating a stay until the Crown consented to a judge-alone trial as the only available course without considering a longer adjournment or defined-period stay, particularly because the respondent was already serving a lengthy sentence and further delay could reduce the effect of recent publicity without materially adding to existing delay. In any event, an order conditioning the continuation of the prosecution on the Director giving consent to trial by judge alone was not an appropriate exercise of the court's jurisdiction to prevent abuse of process because it interfered with a statutory prosecutorial discretion...

Court Disposition

Appeal allowed; the order staying the trial of the respondent was set aside.

Orders

• ['Appeal allowed.' 'The order of Sweeney DCJ of 8 February 2008 staying the trial of the respondent set aside.']