New South Wales Court of Criminal Appeal CITATION : R v O'Connor [2000] NSWCCA 124 FILE NUMBER(S) : CCA 60482/99 HEARING DATE(S) : 10 April 2000 JUDGMENT DATE : 14 April 2000 PARTIES : REGINA (Appellant) Todd Anthony O'CONNOR (Respondent) JUDGMENT OF : Priestley JA at 1; Simpson J at 2; at 19 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0709 LOWER COURT JUDICIAL Goldring DCJ OFFICER : COUNSEL : L M B Lamprati - Crown Appellant A Radojev - Respondent SOLICITORS : S E O'Connor - Crown Appellant Jack Rigg - Respondent Criminal Appeal Act 1912 LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Suitors Fund Act 1951 Walton v Gardiner (1993) 177 CLR 379 CASES CITED: Dietrich v R (1992) 177 CLR 292 House v R (1936) 66 CLR 499 DECISION : Appeal allowed - orders see paragraph 18 IN THE COURT OF CRIMINAL APPEAL 60482/99 PRIESTLEY JA SIMPSON J FOSTER AJ Friday 14 April 2000 REGINA v Todd A O'CONNOR Judgment 1 PRIESTLEY JA: I agree with Simpson J. **** SIMPSON J : 2 Pursuant to s 5F of the Criminal Appeal Act 1912 the Director of Public Prosecutions appeals against the decision of Goldring DCJ granting the respondent a permanent stay of criminal proceedings against him. 3 The respondent is charged with offences under the Drug Misuse and Trafficking Act 1985. A trial of the charges commenced before Stewart ADCJ in May 1997. The respondent was privately represented. Four weeks were set aside for the trial. After about two weeks and in circumstances that do not reflect in any way upon the conduct of the respondent or his legal representatives, the trial aborted. The reason was that the Crown produced, during the course of the trial, material upon which it wished to rely and which the respondent and his legal advisers did not have adequate opportunity to consider and meet. Discharging the jury, Stewart ADCJ granted the respondent a certificate under the Suitors' Fund Act 1951. No money has been paid to the respondent pursuant to this certificate. There was evidence, uncontradicted, that no money will be paid until the completion of all the proceedings against the respondent. Any payment is subject to a ceiling of $10,000. 4 The respondent was initially charged with a number of others. All except he and one other, Nawaf Refai, eventually entered pleas of guilty. In the ordinary course a joint trial of these two accused would have taken place. Because Refai was without legal representation an order was made that the proceedings against him be adjourned and the Crown proceeded against the respondent alone. 5 It is now the Crown's intention to arraign the respondent and Refai for a joint trial. The respondent deposed that he had been informed by the Crown and by his solicitor that a joint trial could be expected to occupy twelve to fourteen weeks. This is not accepted by the solicitor representing the Crown, whose estimate was of six weeks. 6 It may be anticipated that the trial will not be without complexity. For example, two police officers who were involved in the respondent's arrest (which took place in 1994) have been the subject of extensive adverse evidence given to the Royal Commission into the NSW Police Force. A medical report certifies that one of them is psychiatrically unfit to give evidence. Questions of the admissibility of any statements or previous evidence given by him might arise. A great deal of material derived from the transcripts of the Royal Commission is potentially relevant and may be required to be put to prosecution witnesses. The Crown proposes to rely upon evidence of about 250 telephone intercepts. The identification of the voices on the tape recordings may be in issue. One of the individuals arrested with the respondent who has pleaded guilty is to be called as a Crown witness. 7 Although the solicitor representing the Crown did not accept the respondent's estimate of twelve to fourteen weeks, she was unable to give any estimate of the time that would be taken by the tape recording evidence alone. 8 The respondent applied for a grant of legal aid in 1998 but the application was refused. He did not appeal against the refusal. Mr D Humphrey, the manager of the criminal law section of the Legal Aid Commission, gave evidence that, based on the respondent's disclosed financial position, an appeal would be unlikely to succeed. 9 The respondent put his application for a stay on two bases. One was the asserted unlikelihood of a conviction, having regard to the evidence from the Royal Commission, and the absence from the trial of one of the police officers as a result of his psychiatric disability. To proceed in these circumstances might amount to an abuse of process, or might otherwise warrant the intervention of the court to prevent a trial which would be inherently unfair become doomed to failure. In this respect counsel for the respondent relied upon some passages from the decision of the High Court in Walton v Gardiner (1993) 177 CLR 379. If he were successful on that basis the proper order is an order for a permanent stay of proceedings. 10 The alternative basis for his application for a stay was based on the principles stated by the High Court in Dietrich v R (1992) 177CLR 292. His argument, simply, was that, having regard to the anticipated complexities of the trial, and the seriousness of the charges, a trial in which he was, without fault on his own part, unrepresented, would necessarily be unfair. In the ordinary course a successful application on this basis would result in a limited stay, that is, a stay to operate until the applicant is in a position to obtain legal representation, whether by legal aid or from his own resources. 11 The applicant provided affidavit and oral evidence to the effect that he was unable to fund legal representation from his own resources. The evidence as to his financial position was not specific in some respects. He earns about $850 net per week on average as a console operator, and has some additional, unspecified, income from work as a finance broker. He owns a house for which he paid $170,000, which is subject to a substantial mortgage. His monthly payments are between $1,000 and $1,200. He has a four year old son who suffers from Attention Deficit Hyperactivity Disorder that requires expensive medical treatment and medication. The medication costs about $90 per fortnight. There was no evidence of the cost of the medical treatment or consultations. He has a de facto wife who is not in employment. He said that he was obliged to pay the whole of the agreed fees in relation to the aborted trial, notwithstanding its early termination, and that he was, at the time of giving evidence in support of his application, still paying off that debt. He was not able to say how much remained outstanding. 12 There was no direct evidence as to the expected cost of legal representation for the trial. Mr Humphrey gave evidence that the Legal Aid Commission would allow, for a six week trial, and including a reading component, about $35,000. It may be assumed that this is less than the cost of privately funded legal representation. 13 Goldring DCJ concluded that the respondent met the test of indigency propounded in Dietrich and accordingly ruled that it would be unfair to require him to go to trial unrepresented. He rejected the first basis of the application, that is, that, in substance, the prosecution amounted to an abuse of process because of the weaknesses in the Crown case and the consequent absence of any prospect of a conviction. 14 The order made by Goldring DCJ was made in the exercise of discretion, and may only be disturbed on well established principles: House v R (1936) 55 CLR 499. 15 The Crown put its appeal alternatively. Its principal position was that the evidence as to the respondent's financial position was insufficient to permit a proper conclusion that the respondent was unable to fund the cost of his own representation and therefore indigent such as to bring him within the principles stated in Dietrich. In my opinion this argument cannot be sustained. It is true that, as the Crown pointed out, there was no evidence of the amount the respondent still owes to his lawyers in relation to the aborted trial. However, his Honour set out the respondent's financial position so far as it was given in the evidence. He clearly accepted that evidence. He did not accept a submission, which he said was made "in the most oblique way by the Crown" that the respondent had improvidently put himself in a position of being unable to afford legal representation. There were findings of fact well open to his Honour, as was the conclusion that the respondent was not in a position to fund a trial of the length anticipated. 16 That being the case, in my view the further conclusion that a trial of the respondent without legal representation would be unfair was inevitable. There is no error in the exercise of discretion demonstrated in this respect. 17 The alternative basis on which the Crown put its case was that, in the circumstances, a permanent stay was inappropriate and, at best, the respondent was entitled to an interim stay which would subsist only so long as his unrepresented status subsisted. In this, in my view, the Crown is on firmer ground, and indeed, this was accepted by counsel for the respondent on the appeal. In my opinion, his Honour having rejected the respondent's contention that the Crown case was doomed to failure, the grant of a permanent stay as distinct from an interim stay was outside the legitimate exercise of discretion. 18 In my opinion the appeal should be allowed to the extent that the permanent stay granted should be set aside, and in lieu thereof should be substituted the following orders: 1. That the appeal be allowed. 2. The order made on July 26 1999 by Goldring DCJ be quashed. 3. The trial on the counts in the indictment presented before his Honour be stayed until legal representation is available to the respondent for the trial of that charge, or until further order of the District Court. 4. This matter be remitted to the District Court for mention in order that directions be given as to the progress of this matter including the filing of evidence by the respondent giving details of his financial position and his ability to secure legal representation. **** 19 FOSTER AJ: I also agree with Simpson J. ********** 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.