R v GSH [2009] NSWCCA 67

New South Wales Court of Criminal Appeal

CITATION: R v GSH [2009] NSWCCA 67

HEARING DATE(S): 27 February 2009 JUDGMENT OF: Grove J at 1; Buddin J at 9; Price J at 10

EX TEMPORE JUDGMENT DATE: 27 February 2009

DECISION: Hearing vacated

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Crown appeal against sentence - Appeal against conviction by offender contemplated - Delay in final decision on legal aid - Desirability of same Bench considering all issues

LEGISLATION CITED: Criminal Appeal Act 1912

CATEGORY: Procedural and other rulings

PARTIES: REGINA - Appellant GSH - Respondent

FILE NUMBER(S): CCA 2007/13512

COUNSEL: N Noman - Appellant G Bashir - Respondent

SOLICITORS: Solicitor for Public Prosecutions - Appellant Legal Aid Commission - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3291

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

LOWER COURT DATE OF DECISION: 19 September 2008

IN THE COURT OF CRIMINAL APPEAL CCA 2007/13512

GROVE J BUDDIN J PRICE J

Friday 27 February 2009 REGINA v GSH

1 GROVE J: Listed before the Court today is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act asserting the manifest inadequacy of sentence imposed by Coorey DCJ in the District Court. 2 The respondent to the Crown appeal was convicted on three counts in an indictment following trial at Campbelltown District Court as long ago as 22 February last year. At that trial he was found guilty of three counts and acquitted of another. He was not sentenced until 19 September last year and thus, as the Crown points out, there has already been some delay in this matter being heard. 3 The respondent applies for the matter to be taken out of today's list on the basis that he wishes to give consideration to an appeal against conviction. We were informed, and I accept for present purposes, that the situation is that he has instituted an appeal to the Legal Aid Review Committee in relation to funding such an appeal. The court was informed that a merit advice had been given in relation to the proposed appeal. 4 It appears that the notice of appeal to the Legal Aid Review Committee was only signed today and that situation came about by reason of some practical problems about accessing the respondent himself, who is in custody. He had given instructions in relation to the matter some time ago. 5 Incidentally, the Crown's concern is that there has already been some delay and an adjournment would create even further delay. It is frequently the case that this court takes into account the period which the respondent to a Crown appeal is uncertain as to his fate as a matter which, amongst other things, can give weight to the possible exercise of residual discretion of this court to dismiss a Crown appeal. 6 In an exchange with counsel, it has been pointed out that if this application were to succeed it would have to be clearly understood that any delay from today until the hearing could not be relied upon by the respondent to support any submission along the lines I have sketched. 7 The alternatives are, to proceed with this appeal relating to sentence only and possibly have a differently constituted bench deal with the question of conviction. For myself, I would regard that procedure as undesirable if, in a practical sense, it can be avoided and there is no prejudice either to the Crown or to the respondent. 8 In those circumstances I am of the view that the application should succeed and I would adjourn the hearing today 9 BUDDIN J: I agree 10 PRICE J: I agree. 11 GROVE J: The order of the court, therefore, is that the hearing today is vacated and the matter is directed to be placed in the Registrar's next call-over list for further directions. **********