Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Young v Director of Public Prosecutions [2022] NSWCA 133 Hearing dates: On the papers Decision date: 26 July 2022 Before: Leeming JA Decision: Notice of motion filed 28 June 2022 dismissed. Catchwords: PROCEDURE – application for pro bono assistance – judicial review of dismissal of appeal by District Court against Local Court conviction – applicant suffers from significant hearing impairment – strength of case – complaint against solicitor formerly retained – application refused Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 11 Disability Discrimination Act 1992 (Cth), s 6 Supreme Court Act 1970 (NSW), s 48 Cases Cited: Amgad v Cairns [2022] NSWCA 101 Kelly v Mosman Municipal Council [2010] NSWCA 370 Lane v Northern NSW Local Health District (No 2) [2014] NSWCA 32 M v Director General, Department of Family and Community Services [2013] NSWCA 118 Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92 Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 Renshaw v NSW Lotteries Corporation Pty Ltd [2021] NSWCA 41 Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 Category: Procedural rulings Parties: Gary Young (Applicant) Director of Public Prosecutions (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: Applicant in person Solicitors: Office of Director of Public Prosecutions NSW File Number(s): 2021/00318239 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 08 October 2021 Before: McLennan SC DCJ File Number(s): 2019/00395395 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. LEEMING JA: The applicant, Mr Gary Young, was convicted of four charges of common assault and one charge of intentionally or recklessly destroying or damaging property by the Local Court at Casino. There was no dispute that Mr Young had attempted to prevent earthworks on property claimed by Mr Young to be his by way of adverse possession; the issue was whether Mr Young's conduct was justified. Mr Young was sentenced to concurrent conditional release orders for periods of 18 months commencing on 19 October 2020. 2. In the Local Court, Mr Young had been represented by a solicitor. After conviction, he appealed to the District Court, pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). That appeal lay as of right. Mr Young appeared for himself. One of his grounds turned on the competence of his representation. His former solicitor had sworn an affidavit and was cross-examined by Mr Young in the District Court. Mr Young's grounds also extended to the unfairness of the hearing, based on his partial deafness and the absence of a hearing loop, and the conduct of the prosecutor. He also challenged the findings of the Local Court as to his state of mind. 3. The District Court gave reasons dismissing the appeal on 8 October 2021, and confirming the convictions and sentences. 4. No further appeal lies from the District Court. Mr Young (who continues to be unrepresented) filed a summons in the Common Law Division of this Court, seeking judicial review of the District Court decision. That summons appears to have been transferred to the Court of Appeal, because s 48 of the Supreme Court Act 1970 (NSW) defines the District Court as a "specified tribunal", and assigns to the Court of Appeal applications in the nature of judicial review from specified tribunals. 5. By notice of motion filed 28 June 2022, Mr Young seeks an order for pro bono assistance, or referral to the Public Defenders' Office. The motion states that "the case involves serious issues of physical disability and public concern which affect a large portion of the general public". My Young's affidavit in support states that he is 74 years old, severely deaf, including as a consequence of surgery in late 2021 which has led to further hearing loss than had been the case in the District Court. His affidavit identifies as "the most important issue" his deafness and the injustice of the trial. He states that it was not sufficient for the Local Court to proceed without evidence that he was able to hear and understand what was occurring, and that it was an error for the District Court to conclude that there was no contravention of s 6 of the Disability Discrimination Act 1992 (Cth) without evidence. He states that pro bono assistance is warranted "in running this most important case for the national interest of the deaf population facing court in a criminal matter". 6. In Lane v Northern NSW Local Health District (No 2) [2014] NSWCA 32 at [8], Basten JA said that: "It is true that in every case this Court benefits from the availability of professional legal assistance, however it is not always available and there are limits to the cases in which this Court can impose upon members of the Bar to provide assistance without return by way of fee." 1. In Kelly v Mosman Municipal Council [2010] NSWCA 370 at [19], Campbell JA said: "Any orders for pro bono legal assistance need to be made bearing in mind that the resources of the Pro Bono Panel are limited, that the lawyers whose names appear on the Pro Bono Panel provide their services voluntarily, and that the Court should ask them to give up their time and exercise their skill only in circumstances where there is an appropriate reason, for the overall administration of justice, to make that request." 1. In M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [21], Basten, Barrett JJA and Bergin CJ in Eq said that: "[while] it should not form an opinion on the merits of the litigant's case, the Court should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit and should be conscious of the fact that the voluntary services of the profession should not be imposed upon where it may be inferred that legal aid has been sought and refused for lack of merit, or otherwise a referral would be futile." 1. The principles guiding the discretion to make a referral for pro bono representation have been reiterated and applied to similar effect more recently: see for example Amgad v Cairns [2022] NSWCA 101 at [16]-[17] and Renshaw v NSW Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10]-[12]. 2. It is not for me to make any final determination of the submissions Mr Young will make in support of his summons. It is sufficient to say that they do not appear to be strong. If he is to have any success, he needs to establish jurisdictional error. The latest proceedings he has commenced are not a further appeal. Only if he can establish that the District Court, in hearing and determining his appeal, misconceived its function, or otherwise committed jurisdictional error, can his summons succeed: see for example Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294, Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 and Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92. A relatively large number of applications have been made by people dissatisfied with the outcome of appeals brought by them to the District Court following convictions by the Local Court. It seems likely based on his affidavit and the form of the summons and notice of motion that Mr Young does not appreciate what needs to be made out in order to establish jurisdictional error. That is not a criticism of him; he is not a lawyer. For Mr Young's benefit, it is worth noting what Ward P, Meagher JA and Basten AJA said in Nabi at [5]: "There is no right of appeal from a judgment of the District Court in an appeal from the Local Court; accordingly, the proceeding in this Court must engage the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act. Although that jurisdiction, if unqualified, may include errors of law which appear on the face of the record of the inferior court or tribunal, no such basis of review is available in the present matter as a result of the restrictive operation of s 176 of the District Court Act 1973 (NSW). Accordingly, the only available ground of review is jurisdictional error. That means that this Court will not intervene unless satisfied that, in some material respect, the court below has misconceived its function, so as to exceed its jurisdiction or fail to carry out the jurisdiction conferred on it by statute." 1. The only question is whether there should be a pro bono referral. Unquestionably this Court would be advantaged if Mr Young were represented by counsel. Unquestionably, Mr Young's deafness will present difficulties in articulating his case. However, three countervailing considerations tell against the making of such an order. The first is the absence of apparent strength of the case. The second is the nature of the offences of which Mr Young has been convicted and the relative mildness of the sentence which has been imposed. The third is Mr Young's history of blaming lawyers acting for him for failing to secure not guilty verdicts. Mr Young has blamed his former solicitor for his conviction, which in turn led to the solicitor making an affidavit and being cross-examined. The District Court found that the decisions made by the solicitor were the result of sound professional judgment (reasons p 12). There is nothing in the reasons or the submissions Mr Young has made to date which makes me think that there was not a sound basis for that conclusion. 2. In those circumstances, I am unpersuaded that this is an appropriate case for pro bono referral. The notice of motion filed 28 June 2022 should be dismissed. ********** Amendments 29 August 2022 - at [4], "has been transferred" replaced by "appears to have been transferred" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2022