Regina v B.K [2000] NSWCCA 4

Reported Decision : 110 A Crim R 298

New South Wales Court of Criminal Appeal

CITATION : Regina v B.K [2000] NSWCCA 4 FILE NUMBER(S) : CCA 60182/99 HEARING DATE(S) : 3/2/2000 JUDGMENT DATE : 8 February 2000

PARTIES : Regina B.K JUDGMENT OF : Sully J at 1; Carruthers AJ at 26; Smart AJ at 38

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0493 LOWER COURT JUDICIAL Christie DCJ OFFICER :

COUNSEL : D. C. Frearson - Crown A. J. Bellanto QC - Appellant SOLICITORS : S. E. O'Connor - Crown Patricia White & Associates - Appellant

LEGISLATION CITED : Criminal Appeal Act 1912 House v The King (1936) 55 CLR 499 at 504, 505 Dietrich v The Queen (1992) 177 CLR 292 Craig v The State of South Australia (1995) 184 CLR 163 Reg v Small (1994) 72 A Crim R 462 at 473 CASES CITED: Moss v Brown [1979] 1 NSWLR 114 at 125 Reg v Greer (1992) 62 A Crim R 442 Reg v Frawley (1993) 69 A Crim R 208 DPP v Allan, CCA unreported, 1/11/95 Reg v Roula Kay, CCA unreported, 27/4/98 DECISION : Appeal dismissed; Interlocutory order of Christie DCJ affirmed

38 IN THE COURT OF CRIMINAL APPEAL

60182/99

SULLY J CARRUTHERS AJ SMART AJ

8 February 2000

REGINA v BK

JUDGMENT

1 SULLY J: This is an appeal brought pursuant to section 5F of the Criminal Appeal Act 1912 by 'BK' ("the appellant"). The appeal is brought against an interlocutory judgment of Christie DCJ, being a judgment delivered on 19 April 1999, refusing an application by the appellant for a stay of proceedings pending against the appellant in the District Court, "……… until the matter of legal representation is resolved". 2 The Notice of Appeal represents that Christie DCJ did not give a certificate that his Honour's interlocutory judgment was a judgment proper for consideration by this Court on appeal pursuant to section 5F. It is, however, clear from the transcript of proceedings before Christie DCJ on 22 April 1999 that his Honour did certify the matter as one proper for the consideration of this Court. That being so, it is not necessary that the applicant obtain leave of this Court to appeal against the interlocutory judgment in question: see section 5F(3)(b). It is to be noted that an appeal of the present kind is to be determined "………on the evidence (if any) given in the proceedings to which the appeal relates" unless this Court "…… gives leave to adduce fresh, additional or substituted evidence,………..": see section 5F(4). The particular powers of this Court in connection with an appeal of the present kind are limited to the affirming or the vacating of the judgment against which the appeal has been brought; or to the giving or making of an interlocutory judgment or order in place of the judgment or order against which the appeal has been brought: see section 5F(5). 3 The judgment or order sought in the Notice of Appeal is described simply as : "Stay of Proceedings". The appeal to this Court was conducted upon the basis that what the appellant is seeking in fact from this Court is an interlocutory judgment and order of the kind that he sought from Christie DCJ ; that is to say, an interlocutory order staying, until he is able to provide appropriate legal representation in aid of his defence, the criminal proceedings current against him in the District Court. 4 The grounds of appeal, as notified by the notice of appeal, are as follows: "1. His Honour erred in refusing to grant a stay of proceedings based on the Dietrich principle. 2. His Honour accepted submissions on behalf of the Appellant that (a) the Appellant is indigent; (b) that the Appellant has taken all steps in his power to secure legal aid but has been unsuccessful; (c) that the appellant was not the cause of any delay in the failure of these charges to be heard at trial over and during a substantial period of time and his Honour had regard to the chronology of applications and adjournments in coming to that finding. 3. His Honour held that he must make a decision as between the public interest in the hearing of the charges against the difficulties in obtaining legal representation on the part of the appellant. His Honour concluded that the public interest must prevail over the difficulties of the Appellant." 5 The factual background relevant to the present appeal can be stated shortly as follows. 6 The appellant is to be presented for trial in the District Court on 14 February instant. He is to be so presented upon an indictment charging against him a number of serious offences of a sexual nature which offences are said to have been committed by him against a complainant who is said to be the appellant's adopted daughter. The events in question appear to span the years between 1987 and 1994. There are to be, as it would seem, 13 counts in the indictment upon which the appellant will be tried. 7 The appellant was arrested on 13 December 1994 and charged with the offences for which he is now facing trial. The course of events between 13 December 1994 and 9 April 1999 is set out in a 4-page document, a copy of which I attach for ease of reference to this judgment. To that chronology it is necessary to make the following additions: · On 19 April 1999 the appellant's trial was listed before Christie DCJ. The appellant appeared unrepresented. There was a deal of discussion, involving his Honour, the Crown Prosecutor and the appellant, concerning various procedural matters, the fine detail of which is not now significant. At the conclusion of that discussion, and without, as it would seem, any prior notification having been given by the appellant of his intention to make an interlocutory application, the appellant presented his Honour with a Notice of Motion and a supporting affidavit. The Notice of Motion sought an indefinite stay of the appellant's trial until such time as proper legal representation could be arranged for him in connection with the presentation of his defence at trial. The Crown opposed the application; and his Honour heard brief submissions from the appellant in connection with it. The appellant concluded his submissions as follows: "Now if I went back to Legal Aid which I must do then I would certainly be seeking counsel. Now in my meetings with Legal Aid they did say to me do you want your own counsel, in other words you are free to choose your own counsel other than people employed by Legal Aid. At the time I just said well what can I do, I don't know any solicitors, I don't know any barristers, how does an ordinary person in the street find counsel. Well I think I have a solution to that now whereas I didn't have a solution to that six months ago and so therefore I'm asking for a stay of proceedings to give me time with Legal Aid knowing that the trial has been indefinitely deferred to seek counsel." (Appeal Book at 36) · Christie DCJ gave judgment ex tempore. His Honour dismissed the appellant's interlocutory application for a stay. The appellant at once indicated that he proposed to appeal against that decision. His Honour heard, thereupon, further submissions from the appellant, and some brief further submissions from the Crown Prosecutor. The upshot of the further discussion was that the appellant's trial was stood down until 2.00 p.m. in the hope that some officer of the Legal Aid Commission could be in attendance for the purpose of clarifying anything that needed to be clarified in connection with the appellant's possible entitlement to a grant of legal aid in connection with his defence of the charges upon which he was then facing trial. · At 2.00 p.m. the appellant reappeared before Christie DCJ represented by a solicitor who had some familiarity with the appellant's case. In attendance also was Mr. Humphreys, manager of the Criminal Law Branch of the Legal Aid Commission. His Honour re-opened the appellant's application for a stay pending the making of appropriate arrangements for the appellant's legal representation at trial. His Honour canvassed with the appellant's solicitor and with the Crown Prosecutor various procedural problems that his Honour perceived in the event that the appellant's trial proceeded with the appellant unrepresented. His Honour was pressed by the appellant's solicitor to take evidence from Mr. Humphreys, and that was done. · During the course of his evidence given in chief to the Crown Prosecutor, Mr. Humphreys was taken to the conversation said to have taken place on 13 October 1998 between him and the solicitor then appearing for the appellant, that solicitor being the legal representative then appearing for the appellant before Christie DCJ. In that connection Mr. Humphreys gave the following evidence: "A. I can indicate that a discussion took place. It was not along the lines as indicated in the affidavit that the only way he would achieve a grant of aid was to plead guilty to the charges. The circumstances were that Mr. K withdrew his instructions as a result of a number of matters which included matters where the solicitor who was appearing for him felt he was in ethical difficulties and they were a series of matters and it was certainly not a situation where the only way he would achieve a grant of legal aid would be by pleading guilty. It related to other instructions. In terms of the end had he done that then that would have obviously overcome those ethical difficulties at the time. Q. In any event the ultimate refusal of legal aid was related to the means test? A. Yes. Q. I think a little while ago you were handed a further application for legal aid by Ms White on behalf of the accused? A. That's correct, it was filled in just outside the Court and completed as we were in Court. Q. Have you had an opportunity to consider that as well as consider the affidavit which you've now got a copy of? A. Yes, I've read the affidavit and I have read the application for legal aid. Q. And although you haven't formally determined the matter yet, can you indicate to his Honour what do you think your decision will be in relation to this fresh application for legal aid? A. The application for legal aid is not substantially different to that which was lodged in September of 1998. In considering whether or not to grant legal aid I am bound to apply the Legal Aid Commission's means test. That test requires me to take account of income from all sources, less an amount of $60 per week for any dependents, less an amount of up to $128 per week for accommodation. It required me to take into account the income of financially associated persons which includes Mrs. K. I am required to have a look at what are required or are termed net liquid assets and if the net liquid assets exceed the likely cost of the grant of legal aid then I'm required to refuse legal aid. On attachment A2 of the affidavit referred to - it's attachment A2 page 2 of 6 which is the requirement to - the fourth page of the affidavit including the front - it discloses in there that his wife has a cash management trust account of $9,640 and that there are investments estimated which I understand is by way of shares and I assume that these are the shares that were declared on the last occasion and they haven't changed, there's an amount of $25,000 there. I'm required to take into account those amounts which is approximately $34,000 and on that basis alone I would be refusing legal aid because of the existence of net liquid assets which could be put towards the cost of legal expenses in this matter. Q. What about what is shown on that same page as debts? A. Under the Legal Aid Commission's means test I'm not normally required to take into account debts. In reading this Mr. K has entered into a scheme of arrangement with the Taxation Commission and that debt is not due and payable at the moment. I acknowledge there is a contingent liability for 1995 and 1996, however that is not yet due and payable and that whilst the Taxation Office may threat if money is simply not there to recover it can't be recovered if it's put to other uses as in some payment towards legal expenses in respect of this case. Q. At the end is it the situation that you will be obliged under the Act to determine the application that was handed to you ten minutes or so ago -- A. Yes. Q. -- when you get back to your office? A. When I get back to the office I will determine it and --- Q. How will you determine it? What decision will you come to? A. I will decline legal aid on the same basis that legal aid was declined by another authorised officer in September last year." [Appeal Book at 44,45] · In cross-examination Mr. Humphreys gave the following evidence: "Q. And in relation to the conversation that I had with you on 13 October 1998 that's referred to in the affidavit annexed to the notice of motion brought on by Mr. K, in relation to the plea of guilty do you agree that that was discussed? A. It certainly was discussed but a large range of matters which it would be preferable for ethical reasons that I not go into were discussed as well. It was an attempt to fully inform you of the stage the case was at and the difficulties that had arisen. Q. In that conversation did I advise you that I had no difficulty with Mr. K's instructions? A. Yes you did. Q. And that I believed that I could adequately represent Mr. K at trial? A. My recollection is that you did. Q. And it was subsequent to that that I received your letter dated 20 November refusing aid on a means test basis? A. Yes. Q. And in our conversation we had not discussed the question of means at all? A. No, no not at all, we were dealing with the legal questions that arose. We then got the application and the application was dealt with on the basis of means. You then - you were completely frank and open with your dealings with the Commission." "Q. Would you say that Mr. K's application and his conduct of his application for legal aid throughout has been diligent or tardy, has he done everything that's been required of him? A. He certainly - where requests have been made of him in each case he has supplied us with information that has been requested and he has as far as I can see been open and honest in respect of his financial situation and he - he did not seek to appeal the decision to refuse legal aid in September and has not lodged an application, I can't comment on the basis for that, but certainly in terms of anything that we have requested of him, he has assisted the Commission in its administrative processes." [Appeal Book at 46] · No further evidence was called before his Honour. His Honour heard further addresses and again dismissed the appellant's application for a stay. His Honour was informed that, in the event that the appellant's trial was forced on, the appellant would be unrepresented. After some further discussion with the appellant's solicitor, his Honour adjourned the trial until 10.00 a.m. on 27 April 1999. · On 22 April 1999 the appellant's trial was listed for mention before Christie DCJ. By that time the appellant had instituted the present appeal to this Court. The Crown consented to the adjournment of the pending trial; but made it clear to his Honour that such consent was predicated upon information which had been communicated to the Crown to the effect that the Registry of this Court could arrange an early hearing of the proposed appeal, the date of 18 May 1999 having been suggested as a date probably available. His Honour was told that the appeal to this Court would be listed for mention on 3 May 1999. · His Honour thereupon adjourned the appellant's trial. In doing so, his Honour made the following observations which are, in my opinion, of significance for present purposes: "…………….. (I)t's my personal view in the matter that the delays in this trial are such as to bring the criminal law in this State into disrepute and it's a question of balancing the two competing interests. I believe that I have given the accused an opportunity to seek a pro bono representation, ……………………… but if there's a real prospect of the Court of Criminal Appeal dealing with it early and then if the trial is to proceed it is to proceed fairly shortly, then my major concern would be removed." [Appeal Book at 61] · At the hearing of the present appeal the Court was told that the date for the hearing of the appeal had not been fixed until 25 August 1999. As the evidence before this Court stands, there is no explanation of the delaying, until that date, of the fixing of a date for the hearing of the present appeal. That there is such a gap in the evidence is, in my opinion and to say the least, both regrettable, and unhelpful to the Court in the proper performance of its present task. · On some date not particularised otherwise than as having been later than 25 August 1999, the appellant's trial was fixed for hearing on 14 February next. 8 In connection with the relevant factual background, there are two further matters to be noted. 9 First, the appellant was represented before this Court by Senior Counsel. Counsel's instructing solicitor, who was present with him throughout the hearing, was the solicitor who appeared, as earlier herein noted, for the appellant before Christie DCJ. Counsel informed the Court that his appearance did not indicate any dramatic improvement in the personal financial circumstances of the appellant; and that, while not appearing in a completely pro bono capacity, he was appearing at a very much reduced fee. 10 Secondly, this Court did receive in connection with the hearing of the appeal some evidence additional to that which had been before Christie DCJ. The salient features of that additional material are as follows: · The present financial situation of the appellant was put as follows: