Leith BAGSHAW v R [2008] NSWCCA 246

New South Wales Court of Criminal Appeal

CITATION: Leith BAGSHAW v R [2008] NSWCCA 246

HEARING DATE(S): 14 October 2008 JUDGMENT OF: McClellan CJ at CL at 1 & 19; Simpson J at 2; Hislop J at 20

EX TEMPORE JUDGMENT DATE: 14 October 2008

DECISION: Leave to appeal refused.

CATCHWORDS: CRIMINAL LAW - appeal under s 5F of the Criminal Appeal Act - application for adjournment or dismissal of proceedings - notice of motion dismissed - grounds of appeal - judicial error - judicial bias - admissibility of documents - admissibility of evidence a matter for the trial judge - judicial bias not a ground for stay of proceedings - withdrawal of pleas of guilty - leave to appeal refused

LEGISLATION CITED: Criminal Appeal Act 1912 Bankruptcy Act 1966 (Cth)

CATEGORY: Procedural and other rulings

PARTIES: Leith Gordon BAGSHAW (Applicant) REGINA (Cth) (Respondent Crown)

FILE NUMBER(S): CCA 2004/00013380

COUNSEL: In person (Applicant) P Bolster (Respondent Crown)

SOLICITORS: In person (Applicant) Cth Director of Public Prosecutions (Respondent Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2004/11/1169

LOWER COURT JUDICIAL OFFICER: Berman DCJ

IN THE COURT OF CRIMINAL APPEAL

2004/00013380

McCLELLAN CJ at CL SIMPSON J HISLOP J

Tuesday 14 October 2008 Leith Gordon BAGSHAW v REGINA (Cth) Judgment 1 McCLELLAN CJ at CL: We have decided to give judgment. I will ask Justice Simpson to deliver the first judgment. 2 SIMPSON J: In these proceedings the applicant, Mr Leith Bagshaw, seeks leave to appeal, under s 5F of the Criminal Appeal Act 1912, against a decision made in the District Court by Berman DCJ on 28 August 2008. I shall set out, as best I can, what I discern to be the relevant circumstances. 3 Mr Bagshaw is charged with 7 offences against s 269 of the Bankruptcy Act 1966 (Cth). Essentially, the allegations are of obtaining goods, services or credit in contravention of that section. On 10 April 2008 he entered pleas of guilty to 4 of the charges, and pleas of not guilty to the remaining 3. 4 On 30 July 2008, acting without legal representation, Mr Bagshaw filed in the District Court a notice of motion, expressing the orders there sought as: "1) See Attachments. Seeking Adjournment. 2) Seeking to be heard by indep. Judge. 3) Seek orders to have case struck out because of 4 judges comments. Fair Trial." 5 On 28 August 2008 the notice of motion came on for hearing before Berman DCJ. Mr Bagshaw appeared unrepresented. The transcript of what then transpired is before this Court. It is evident that Berman DCJ had severe difficulty in persuading Mr Bagshaw to give any rational account of his application, or the basis upon which it was made. In the end his Honour treated the notice of motion as an application for a stay of the prosecution, or, alternatively, for adjournment (although, as his Honour recognised, that was scarcely appropriate since no trial date had then been set). 6 Although Mr Bagshaw did, according to the transcript, place before Berman DCJ some documentary evidence, that evidence appears to have had no relevance to the application. Berman DCJ went to considerable lengths to give Mr Bagshaw the opportunity to explain his application, but these efforts went unrewarded. Mr Bagshaw was unable to identify any evidence relevant to the question of whether the prosecution ought to be stayed, or, as a possible alternative, that Berman DCJ ought to decline to fix a trial date. 7 The transcript reveals that the second page of a two-page affidavit was presented in the District Court. That document is also amongst the papers put before this Court. It is by no means apparent that that affidavit was prepared for filing in the District Court application: rather, it contains a suggestion that it was prepared for the purpose of an application in the Federal Court of Australia for annulment of a bankruptcy, presumably the bankruptcy of Mr Bagshaw upon which the criminal charges are founded. 8 In any event, the only matters it contains of any possible relevance to the District Court application were certain assertions that various (mostly unnamed) judges of the District Court (including the Chief Judge) had made what might be considered ill-advised comments, denoting bias against Mr Bagshaw. As Berman DCJ observed, any such comments ought to be proved by an official transcript or recording of the proceedings in which they are alleged to have been made. The presentation of one page of a two-page affidavit is no way to prove that such comments were in fact made. In any event, even if the comments were made, they provide no grounds for a stay, or even delay, of the prosecution. At most, they provide grounds for the disqualification, on the grounds of bias, of the individual judge or judges by whom they were made. I here emphasise, however, with one exception there is no evidentiary basis for a finding that such remarks were in fact made. 9 The exception is this. On the hearing today Mr Bagshaw presented one page of a transcript of 11 July 2005 in which a remark is attributed to the then presiding judge, who is not identified in the transcript. What was there said is not precisely what was attributed to him by Mr Bagshaw in his written submissions, but it is at least possible to identify the source of the allegations made by Mr Bagshaw. 10 Having given Mr Bagshaw every opportunity to present his case, Berman DCJ declined to make orders of the kind sought, and fixed the trial to commence on 3 November 2008. It is this order that is the subject of the present application for leave to appeal. Again, in this Court Mr Bagshaw appeared unrepresented. 11 I should add here that in the District Court Mr Bagshaw signified his intention of seeking leave to withdraw the pleas of guilty to those charges to which he had entered such pleas, but, as at 28 August, no such application had been made. Such an application, we were told, has since been made and is listed for hearing. 12 In the present proceedings Mr Bagshaw has set out what purport to be 11 separate grounds. I do not propose to set them out in full. Rather, their flavour may be obtained from a sample. They include: "The judge erred - 1. failed to address the false taxation document put up by the DPP barristers and forged signatures. 2. failed to take action under the criminal act or the taxation law. … 9. failed to address the duty of care and oath of the DPP barrister. 10. failed to address the non performance of DPP in not providing the original documents in the case. …" 13 Mr Bagshaw also provided to this Court submissions in writing. Likewise, I do not intend to address these in full. They include: "Judges (sic) erred 1. Judge failed to address the false taxation document – the taxation file number is false as are the signatures. The documents do not exist at the Taxation Dept. The barrister acting for the DPP failed under a duty of care to the court to clarify the documents. The barrister misled the court. The ATO barristers asked the DPP what they were going to do about it and there was no comment. The ATO told the DPP it was a breach of law. 2. The ATO has requested me to take action under the National Crimes Act as it is a breach of the ATO Act. … 9. There were no original documents submitted to the court under the High Court Act all documents should be original." 14 Under paragraph 10, Mr Bagshaw gave more purported detail of the remarks he attributed to various judges of the District Court, and named two additional judges said to have made those remarks. There is nothing in these submissions that casts, or is even capable of casting, any doubt upon the correctness of the ruling made by Berman DCJ. Mr Bagshaw's case did not in any way improve on the presentation of his oral submissions. 15 He provided an affidavit sworn on 7 October. In that, and in oral submissions he made repeated assertions of misconduct on the part of various authorities, including the Director of Public Prosecutions (Commonwealth) or his representatives, in the prosecution of the charges. He challenged the admissibility of documentary evidence intended to be presented in the trial. He sought to rely on aspects of other proceedings, in the Federal Court of Australia, and in the Equity Division of this Court. He made assertions about missing documents unsupported by evidence either in this Court or in the District Court. 16 As was pointed out to Mr Bagshaw, the admissibility of evidence, documentary or otherwise, is a matter for the trial judge. Regrettably, Mr Bagshaw's presentation of his case betrayed a lack of understanding of the principles applicable to applications under s 5F. He was unable to address the essential issues. 17 Mr Bagshaw at the very conclusion of his submissions advanced one matter which may, if based upon proper evidence, have been seen as a discretionary circumstance relevant to the application in the District Court. However, that was not put to the District Court judge as a reason why the trial should not proceed, was not dealt with by him, and while it can give rise to some sympathy in the Court, it cannot be seen as a reason why Berman DCJ was wrong in the decision that he made. 18 In my opinion there is no basis for interfering with the ruling against which leave to appeal is sought. I would refuse leave to appeal. 19 McCLELLAN CJ at CL: I agree with Simpson J. 20 HISLOP J: I also agree. 21 McCLELLAN CJ at CL: The order of the Court is as indicated by Simpson J. **********