A conceded House v The King error in the exercise of a discretion to grant a stay does not automatically warrant a grant of leave to appeal; the court must also assess whether, upon re-exercise of the discretion, any orders are likely to be made. Where the Crown has disclosed listening device recordings and log sheets but declines to provide transcripts, the burden remains on the accused to demonstrate that a conditional stay is necessary to prevent unfairness, and the case is weakened where the accused has had access to the recordings for an extended period and the application concerns the form rather than the fact of disclosure. The common law jurisdiction to stay proceedings for unfairness survives statutory compliance with disclosure obligations.
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