New South Wales Court of Criminal Appeal CITATION : Regina v JOYCE [2003] NSWCCA 280 revised - 3/10/2003 HEARING DATE(S) : 29/09/03 JUDGMENT DATE : 29 September 2003 JUDGMENT OF : Tobias JA at 36; Howie J at 37; Shaw J at 1 DECISION : Leave to appeal refused. CATCHWORDS : Criminal law - appeal from interlocutory decision to refuse permanent stay - principles in Dietrich v The Queen - no error demonstrated LEGISLATION CITED : Criminal Appeal Act 1912 s 5F Attorney General for NSW v Milat (1995) 37 NSWLR 370; Barron v Attorney General (NSW) (1987) 10 NSWLR 215; Dietrich v The Queen (1992) 177 CLR 292; Falconer v The Queen (1990) 171 CLR 30; CASES CITED : House v The King (1936) 55 CLR 499; Jago v District Court of NSW (1989) 168 CLR 23; R v Joyce [2003] NSWCCA 84; R v Subramaniam [2002] NSWCCA 372; Williams v Spautz (1992) 174 CLR 509; PARTIES : Regina v Dr James Patrick JOYCE FILE NUMBER(S) : CCA 60048/03 COUNSEL : In person - Applicant P Ingram - Crown SOLICITORS : LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0125 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60048 of 2003 Tobias JA Howie J Shaw J 27 September 2003 Regina v Dr James Patrick JOYCE JUDGMENT 1 Shaw J: This is an appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) against an interlocutory judgment of Judge Hosking, SC, given on 8 May 2003. In that judgment his Honour denied a permanent stay of an indictment charging the applicant with two counts of dangerous driving occasioning grevious bodily harm pursuant to s 52A(3)(c) of the Crimes Act 1900 (NSW). His Honour did grant a temporary stay of the indictment, allowing the applicant nine months to raise finances to afford legal expenses. It might be better described as an adjournment of the trial on the basis that the Crown would not present an indictment against the applicant for a period of nine months, but for present purposes the decision will be described as a stay. The basis of that decision is in reliance upon principles explained by the High Court of Australia in Dietrich v The Queen (1992) 177 CLR 292. 2 The charges against the applicant arise out of an incident that occurred on Sunday 4 February 2001. It is alleged that the applicant completed a twelve hour shift, at approximately 8.00 am on that day, at the emergency department of the Shoalhaven Hospital at Nowra and commenced to drive, at around 11.00 am, to his home in Wollongong. Driving along the Princes Highway north of Berry his car impacted with another, causing really serious bodily harm to the occupants of that other vehicle. 3 The applicant was first arraigned on Wednesday 8 May 2002 and pleaded not guilty to two charges of dangerous driving occasioning grievous bodily harm. He stood his trial before Woods DCJ and a jury for some weeks with the jury returning no verdict on those charges. He was, at that trial, represented by Mr Bonnici of counsel. 4 The Crown case was that the applicant was fatigued by his twelve hour shift and would have known that he was not in a fit state of mind to be driving. The defendant alleged that he was, rather, suffering under a dissociated fugue. Woods DCJ left both sane and insane automatism to the jury and the failure of the jury to agree to a unanimous verdict seems to have been based on the inability of the jury to resolve this issue of voluntariness. 5 After the first trial, and following an unsuccessful application to the Office of the Director of Public Prosecutions to discontinue the proceedings, the applicant applied to Dodd DCJ for a permanent stay. This application was refused. That decision was upheld by this Court on 8 April 2003: R v Joyce [2003] NSWCCA 84 per Hidden J (Dunford and Simpson JJ concurring). 6 The basis of the first stay application was that it was unfair to the applicant to continue with a retrial given that it was, on the assertion of the applicant, unlikely that a different jury would be able to come to a unanimous verdict on the retrial. Secondly, it was asserted that the decision of the Director to proceed with the retrial would effect an abuse of process given: (a) that a second jury would be in no better position to agree on a verdict given the level of complication involved in the trial; and (b) the cost to the community and to the accused; 7 On that appeal, Hidden J noted (at [22]): It could be, then, that the applicant would face a second trial unrepresented. It need hardly be said that this would be most undesirable, given the seriousness of the matter and the difficult issues involved. We were asked to allow the appeal on this basis, applying the principles in Dietrich v The Queen (1992) 177 CLR 292. However, it is not appropriate that this Court should consider that matter. It raises a basis for a stay of proceedings which was not argued in the District Court. In any event, the evidence is inadequate and the Crown has not had the opportunity to respond to such evidence as there is. 8 Accordingly, the applicant then made a further application for a permanent stay on Tuesday 6 May 2003 before Hosking DCJ. It is the refusal of that second stay application that concerns this Court. 9 The applicant raised three issues in his second application for a permanent stay. To some extent they were interrelated. 10 The first was that he estimated the complexity of the trial had increased since the first trial and that the initial estimates of Hosking DCJ that the retrial would run for a similar length of time as the first trial were erroneous. The applicant asserted that the retrial would more likely run for over six weeks to explore more issues surrounding the applicant's evidence concerning his bi-polar disorder and the relation between that disorder and the dissociated state he alleges he was suffering under and which he acknowledged, in the first trial, caused the incident the subject of the charges. 11 The applicant also asserted, in his written submissions on the application, that: Previous trial Mr Bonnici may well be witness given the stolen file saga – brother as a solicitor jeopardized his job, cannot take time off work and wasn't funded by the Wesley Mission. 12 The latter point is a reference to the fact that he was represented by his brother at the first trial on a pro bono basis instructing Mr Bonnici. The reference to the 'stolen file saga' is something I will address later in these reasons. 13 The second ground for a permanent stay was that the applicant asserted he would need to brief a Queens Counsel or Senior Counsel given the complexity of the issues (and given that '[t]he issue of bipolar may be there from the outset this time'). 14 The third point was that, on his current income, he could not afford such counsel. The basis of this submission seems to be, on the applicant's assertions, that he is working casual shifts, and further, may need to spend more time with his children if his wife returns to work. He alleges that his rostering as a casual is in breach of 'industrial awards' and seems to allege that he is suffering, as a result of these charges, from being unable to pursue 'advanced training'. He also seems to allege some difficulty in his professional career given that, he submits: …I am obliged to follow my conscience my attitudes towards abortion I believe would prohibit me from entering a training scheme [on obstetrics and gynaecology]. 15 The sum total of these submissions to Hosking DCJ are, without wishing to diminish the complexity of the issues raised by the applicant, that he can not, at the present time, afford sufficiently experienced counsel to run a case that will involve highly complicated medical and forensic issues. 16 As to the estimates of time for the retrial, much of the submission is focussed on an assertion by the applicant that the retrial will take longer than the trial. On the application before Hosking DCJ, his Honour drew to the attention of the applicant that, generally, retrials do not take up the same amount of time. The applicant did not seem to accept that this was so. Similarly, the Crown Prosecutor before his Honour asserted that the original trial occupied four weeks because of some issues raised on the voir dire, and substantial legal argument, including argument as to whether an accused person who leads evidence of 'normal self' to raise an issue of voluntariness, in reliance upon the case of Falconer v The Queen (1990) 171 CLR 30, thereby introduces character evidence that can be refuted by the Crown. Many of these issues may be replicated at a retrial. 17 A further issue may have contributed to the time taken up by the first trial. This issue is described by the applicant as the 'stolen files saga'. This refers to certain subpoenas to produce evidence that were used by police, unsealed, to obtain documents relating to the applicant's employment and employment history. Judge Woods, QC, rightly, ordered that the documents 'produced' under the irregular subpoenas be returned at the first trial. I have difficulty seeing how this issue will arise on the retrial, if there be one. Thus, I do not accept that his Honour erred in finding that the retrial would not be likely to take more than four weeks. Even if this assumption proves to be incorrect, the fact that a trial may be lengthy is not, in my opinion, of itself a ground for a permanent stay to be ordered. 18 However, while Hosking DCJ refused the applicant a permanent stay, he did grant the applicant a temporary stay of nine months. The applicant had applied, after the rejection of his application for a permanent stay, for a temporary stay of twelve months. To warrant intervention by this Court in that exercise of discretion by Hosking DCJ it is necessary for the applicant to show that there was some error in his Honour's decision or error in the approach to his discretion: House v The King (1936) 55 CLR 499; R v Subramaniam [2002] NSWCCA 372. Further, it is correct to state, as put by the Crown, that the grant of a permanent stay is an extraordinary power, exercised in rare circumstances where the court concludes that to proceed with a matter will not allow for a fair trial of the accused: Jago v District Court of NSW (1989) 168 CLR 23. Further, it is for an applicant to put his or herself within the circumstances envisaged by the High Court in Dietrich v The Queen to be granted a permanent stay on that basis. The onus, it is correctly stated by the Crown, is a heavy one: see Williams v Spautz (1992) 174 CLR 509 at 529; Barron v Attorney General (NSW) (1987) 10 NSWLR 215 at 219. 19 In Dietrich the judgments of the High Court give some elaboration of those circumstances in which a trial judge should consider a stay of proceedings on the basis that the accused person is unrepresented by counsel. 20 From the judgments in Dietrich it is clearly correct to say that, in Australia, a trial judge has a power to order a permanent stay of proceedings against an indigent accused on serious criminal charges when, through no fault of his or her own, he or she is unable to obtain legal representation at the trial of those charges. 21 Hosking DCJ said (at judgment page 4): The applicant is a qualified and practising medical practitioner. He is not indigent in an absolute sense of being needy or poor as the figures I will soon refer to will demonstrate. 22 The applicant gave evidence on his application before Hosking DCJ. He testified that he had spent around $85,000 on barristers fees for the first trial as well as $10,000 of a $20,000 loan for other fees which had been paid. He said that he did not own any real estate exclusive of his wife but that they jointly owned property in Queensland. This property was, he thought, purchased for $264,000 about 2-3 years previously, but was subject to a mortgage to Rams of $50,000. He indicated that his wife did not wish to sell that property. Hosking DCJ found (at judgment page 8): In the absence of any evidence from Mrs Joyce to support the applicant's contention that she regards the property as wholly hers, I am not prepared to accept that assertion and I am only prepared to act on the legal basis that the applicant and his wife are registered in some way as the joint owners of the property apparently in equal shares. 23 Though, in my opinion, it should not be considered necessary that a person charge their home to pay their legal expenses when charged with criminal offences, I do not think that his Honour fell into legal error in relation to this finding. 24 The applicant gave evidence that he then had about $6,500 in his bank accounts by way of savings. He testified that he made approximately $200,000 gross the previous year, subject to a tax rate, he asserted, of approximately 50 per cent. He also gave evidence that professional and insurance costs each year were in the order of $5,000. 25 He testified that, as I understand his evidence, whilst he was qualified for more permanent work he was employed on a casual basis because he would not prescribe the 'morning-after pill'. He would therefore work many hours 'because [he] had no option' and felt that he had very little job security. He would work late night shifts because the casual rate was higher for those shifts. He said that whilst he has been averaging about 125 hours a fortnight, he could not continue with that volume of work and, in his opinion, that volume was against occupational health and safety guidelines. Thus, while in the first trial he was able to pay his legal costs out of his wages, he doubted whether he could continue to do this during the second trial. Further, he said that he was able to pursue this volume of night work because he had a nearby flat in which to sleep through the day, but that this had been sold. 26 The applicant testified that he had three children of ages five, seven and eight. He said that his wife would care for those children but he gave evidence that she wanted to return to work and care for the children would fall to him, meaning he would have to work less. 27 Hosking DCJ noted (at judgment page 5): For myself, I do not see why the applicant needs a senior counsel to obtain appropriate representation however desirable the retainer of senior counsel may be. In my view, having regard to the issues involved, a competent junior counsel would be quite adequate. 28 Indeed, the applicant told his Honour that he would be content for Mr Bonnici to continue as his counsel in the retrial. In any event, it is not for a trial judge to decide on appropriate remuneration for the defendant's counsel because it is, rather, for the defendant to prove that he is indigent and, through no fault of his own, unable to brief counsel that renders a trial unfair: see Attorney General for NSW v Milat (1995) 37 NSWLR 370. 29 Hosking DCJ concluded (at judgment page 9): It is very difficult not to feel some considerable sympathy for the applicant's position…However, on the evidence I have, I cannot see that the applicant has made out a case for a permanent stay on the grounds of inability to obtain reasonable legal representation through lack of means. 30 I can see no error in his Honour's conclusion. In all of the circumstances there was a sufficiency of evidence for his Honour to come to the conclusions that he did, namely, that the applicant could not bring himself within the circumstances considered in Dietrich as necessary for a permanent stay to be ordered, that is, the applicant could not demonstrate that his trial would be unfair because of his inability to fund legal fees so that he could be adequately represented at his trial. Rather, the evidence indicated that the applicant required time for his circumstances to stabilise and to prepare for his trial. 31 Having come to that conclusion Hoskings DCJ noted: …I would consider if the applicant makes application for it, a temporary stay to enable him to raise sufficient funds… 32 The Crown did not oppose the applicant's subsequent application for a temporary stay. Mr McCarthy said: I think it's desirable that Dr Joyce is represented your Honour. I think that's our position. 33 In fact, the result was that Hosking DCJ saw no need to grant a temporary stay on the undertaking of the Crown not to present an indictment within nine months from the date of the judgment. 34 Thus, the finding of Hosking DCJ that a temporary stay – or simply an adjournment, by consent - was an appropriate response to the application was well within his discretion and I can see no reason to interfere with the exercise of that discretion. 35 The applicant has not demonstrated that there was any error in this approach and accordingly I propose that leave to appeal be refused. 36 Tobias JA: I agree. 37 Howie J: I also agree. 38 Tobias JA: The order of the Court is that leave to appeal be refused. ***** Last Modified: 10/03/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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