R v Bryers (No 2) [2022] NSWSC 1285

Supreme Court New South Wales

Medium Neutral Citation: R v Bryers (No 2) [2022] NSWSC 1285 Hearing dates: 16 September 2022 Date of orders: 23 September 2022 Decision date: 23 September 2022 Jurisdiction: Common Law Before: Fagan J Decision: Directions (1)-(4) made, as set out at [7]. Catchwords: CRIME – where accused unrepresented for a trial with an estimate of six months – Dietrich v The Queen (1992) 177 CLR 292 – accused previously certified under s 69(3) of the Judiciary Act 1903 (Cth) – Commonwealth legal assistance schemes – significant delay in consideration of the certificate Legislation Cited: Criminal Code (Cth) Judiciary Act 1903 (Cth) Proceeds of Crime Act 2002 (Cth) Customs Act 1901 (Cth) Cases Cited: Craig v South Australia (1995) 184 CLR 163; [1984] HCA 58 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 R v Bryers (No 1) [2022] NSWSC 1284 Category: Procedural rulings Parties: Rex Mark Ronald Bryers Representation: Counsel: P McEniery – Crown N/A

Solicitors: Solicitor for the Commonwealth DPP Mark Bryers – self represented File Number(s): 2020/210541

Judgment 1. This judgment is concerned with directions that will now be made for further proceedings on the notice of motion filed on 20 December 2021 by Mark Ronald Bryers. The nature of the criminal proceedings against Mr Bryers in this Court and details of the relief claimed in his notice of motion are set out in R v Bryers (No 1) [2022] NSWSC 1284 That judgment contains my reasons for having issued on 17 June 2022 a certificate under s 69(3) of the Judiciary Act 1903 (Cth). The certificate was sought by Mr Bryers in par 2 of his notice of motion. The relief claimed in par 1, which remains to be determined, is a stay of the prosecution against him until legal representation has been provided at public expense. He invokes the principles in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. 2. Mr Bryers' trial with seven co-accused is listed to commence on 23 January 2023, with a duration estimated by the Court of about six months. The accused need to be in a position to engage legal representatives well in advance of the trial date in order to secure the availability of counsel for such a long commitment and to allow for some weeks of preparation. Explicitly for that reason, on 4 March 2022 I fixed the trial date 11 months ahead. The Commonwealth Director of Public Prosecutions ("CDPP") knew of Mr Bryers' impecuniosity and his ineligibility for legal assistance from the New South Wales Legal Aid Commission ("Legal Aid") when the trial was set down. 3. When the order for committal was made in the Local Court on 7 December 2021 the CDPP steered Mr Bryers towards applying for a certificate under s 69(3) of the Judiciary Act by serving a copy of that subsection upon him, as required by the Act. The granting of a certificate was, in effect, conceded by the prosecution on 17 June 2022. The court time and procedural delays incurred in reaching that point appear to have been a wasteful diversion. It has become evident that the certificate is not treated by the Commonwealth Attorney-General as resolving anything with respect to the provision of legal assistance for defence of criminal charges. Over the three months that has elapsed since I granted the certificate, no useful action has been taken upon it by the Attorney General's Department. 4. The delay in securing representation for Mr Bryers has brought the listing of his pending trial to a critical point. The effect of the directions now made is to allow another four weeks from the date of this judgment for firm arrangements to be put in place for Mr Bryers' representation at public expense. If that cannot be achieved then, immediately upon expiration of the four weeks, the Court will have to determine his application for a stay. When the application is heard, if Mr Bryers is able to establish the other factors that would entitle him to a stay in accordance with Dietrich v The Queen, the trial date of 23 January 2023 will be vacated in respect of him. 5. Should that occur, the CDPP would have to elect whether to apply for the trial date also to be vacated in respect of the remaining seven accused. Otherwise, the Crown would proceed against the remaining seven on 23 January 2023 and against Mr Bryers separately at a later date. If the occasion arises for the Crown to elect between those alternatives, it will have do so immediately. The Court will need to know by the end of October whether the whole trial is to be removed from the calendar, so that adequate notice may be given to prosecuting authorities and other accused persons for the listing of substitute trials within the six months for which a judge and courtroom are presently reserved for this case. 6. At [15] and following, below, I have chronicled the delays in resolution of Mr Bryers' claim for legal financial assistance that now make it necessary for directions to be made with short time limits.