Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Miller v R [2011] NSWCCA 195 Hearing dates: 10 August 2011 Decision date: 10 August 2011 Before: McClellan CJ at CL at [1] Adams J at [17] Fullerton J at [20] Decision: 1. Leave to appeal refused. 2. Application dismissed. Catchwords: CRIMINAL APPEAL - application to appeal against order under s 91 Criminal Procedure Act 1986 (NSW) - no jurisdiction in Court of Criminal Appeal to entertain application - seeks adjournment based on appeal to Legal Aid - appeal to Legal Aid not bona fide - leave to appeal denied. Legislation Cited: Criminal Appeal Act 1912 Criminal Appeal Rules Crimes Act 1900 Criminal Procedure Act (NSW) Legal Aid Commission Act 1979 Justices Act Cases Cited: R v Colby (1995) 84 A Crim R 125 Category: Interlocutory applications Parties: Damon Charles Miller (applicant) The Crown Representation: Applicant in person J Pickering (Crown) Applicant in person Solicitor for Public Prosecution (Crown) File Number(s): 2008/205683 Decision under appeal Date of Decision: 2011-04-01 00:00:00 Before: Brydon LCM File Number(s): 2008/205683 Judgment 1McCLELLAN CJ at CL: The applicant seeks leave from this Court to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912. The application is out of time. Furthermore in my opinion there is no jurisdiction in this Court to entertain the application and in any event is otherwise an application in respect of which leave should be denied. 2The "decision" which the applicant seeks to challenge was made by the magistrate in committal proceedings with respect to the applicant on 1 April 2011. The application before this Court was dated 27 April 2011. The Criminal Appeal Rules provide that notice of an application for leave to appeal must be filed within 14 days of the date of the judgment or order (reg 5B). Accordingly the application was twelve days out of time. 3The applicant has been charged with 21 offences contrary to s 300(2) of the Crimes Act 1900 (NSW) (use false instrument) and one charge contrary to s 178BA(1) of the Act (obtain benefit by deception). The offences allegedly occurred in 2005 and 2006. The applicant first appeared in the Local Court in relation to these matters in January 2009. 4The magistrate who heard the committal proceedings was assisted by a statement of facts outlining the Crown's allegations. He also had the benefit of oral evidence from nine witnesses. They gave evidence pursuant to an order to which both parties consented under s 91 of Criminal Procedure Act 1986 (NSW). 5The history of the matter in the Local Court is lengthy. On the final day of the committal hearing, 1 April 2011, counsel who appeared for the applicant made an application in which he sought orders pursuant to s 91, both widening the scope of the cross-examination of the witnesses and also seeking the attendance of further witnesses to give evidence at the committal hearing. 6Following discussion in which the magistrate indicated he would decline the application, counsel made an application for an adjournment. That application was refused. The applicant was subsequently committed for trial in the District Court. That trial has been listed to commence on 26 September 2011. 7As I understand the position, the relief which the applicant seeks in this Court is confined to an application for leave to appeal pursuant to s 5F(3)(a) against the decision of the magistrate declining to exercise the jurisdiction available under s 91. 8The applicant appears today in person. He has filed written submissions in support of his application. The Crown has responded to those submissions. We were informed this morning that the applicant sought legal aid for representation in relation to this application. His application to Legal Aid was denied. He informed the court that he had lodged an appeal in relation to the denial of legal aid, that appeal having been filed with the commission on one day last week. He now seeks an adjournment of the hearing of this application pending the resolution of that appeal. 9The applicant has disclosed to us this morning the advice which was received by the Commission in relation to this application for legal aid in support of this application. That advice is plain. The Commission has been advised that there is no jurisdiction in this Court to entertain the application. No doubt in light of that advice the Commission has refused legal aid. As that advice would be considered in support of any appeal I am satisfied that such an appeal must fail. Although the applicant does not concede that it will fail the submissions which he has made to this Court this morning makes plain in my opinion that he does not have a genuine belief in the likelihood of that appeal succeeding. 10In those circumstances, s 57 of the Legal Aid Commission Act 1979 (NSW) must be considered by this Court. That section provides that a court shall adjourn proceedings in the event of an appeal having been made with respect to the denial of legal aid provided that the court is satisfied that "the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings" (s 57(b)). 11Bearing in mind that the applicant is aware of the advice which the Commission has received in relation to the prospects of success and having regard to the submissions which he made to the court this morning, I am not satisfied that the appeal is bona fide. 12I should add that I pass no judgment or indeed comment upon the complaint which the applicant makes in relation to the conduct of the committal proceedings. However, as I understand that complaint it is one which could be adequately addressed by the trial judge who, if persuaded that it is in the interests of justice to do so, could provide a Basha enquiry ((1989) 39 A Crim R 337) so that any prospective witness can be examined before the trial commences. As I understand it, it is the fact that various witnesses were not called before the magistrate which lies at the heart of the applicant's complaint. 13With respect to the substantive application before this Court I should indicate that in R v Colby (1995) 84 A Crim R 125 this Court considered whether an appeal was available with respect to a decision made pursuant to s 48EA of the Justices Act, the predecessor to s 91 of the Criminal Procedure Act 1986 (NSW). In that case the court (Gleeson CJ, Kirby P and Dowd J) decided that the decision was not amenable to appeal because it was not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act. It was a ruling or decision in relation to an application for a direction under the relevant section. Accordingly, if I had to resolve the matter I am satisfied this Court does not have jurisdiction to consider the present application. 14Apart from this Court lacking jurisdiction I am satisfied that if jurisdiction was available the application should nevertheless be refused. If in the interests of justice it is appropriate for persons who did not give evidence before the magistrate to be examined before the trial in the District Court, as I have already indicated, a Basha enquiry may be appropriate. 15In all the circumstances, I am not persuaded that in the relevant sense the applicant's appeal against the denial of legal aid to the Legal Aid Commission is bona fide. Further, I am not persuaded that in the dismissing of this application the applicant will suffer an injustice that cannot be appropriately dealt within the course of the management of his prospective trial. 16In all of the circumstances, in my opinion leave, to appeal should be refused and the application dismissed. 17ADAMS J: I agree with the Chief Judge at Common Law in respect of the application of s 57 of the Legal Aid Commission Act 1979 to the circumstances of this case. 18So far as the principal matter is concerned, I agree also with what has been said by his Honour but I would add that, as the transcript of the committal proceedings makes clear, the only application made by counsel for the applicant was for an adjournment in order to make an application to cross-examine further witnesses and widen the scope of cross-examination of witnesses called. Counsel did not give any ground or basis for seeking that adjournment except that he had been instructed to seek it. The learned Magistrate's refusal of the adjournment was both proper and inevitable. 19I agree with the order proposed by the Chief Judge. 20FULLERTON J: I also agree. 21McCLELLAN CJ at CL: The orders of the court are as I have indicated. ********** 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. Decision last updated: 30 April 2013