Miller v DPP [2012] NSWCCA 278

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Miller v DPP [2012] NSWCCA 278 Hearing dates: 16 July 2012 Decision date: 16 July 2012 Before: Allsop P at 1 Latham J at 7 Davies J at 20 Decision: Application for leave to appeal dismissed Catchwords: CRIMINAL LAW – application for leave to bring interlocutory appeal – whether interests of justice require intervention by the Court – leave refused Legislation Cited: Criminal Appeal Act 1912 Freedom of Information Act 1989 Police Act 1990 Cases Cited: R v Matovski (1989) 15 NSWLR 720 Category: Principal judgment Parties: Damon Miller - (Applicant) Regina - (Crown Respondent) Representation: Counsel: Self-represented - (Applicant) P Ingram SC - (Crown Respondent) MG McHugh - (Commissioner of Police) File Number(s): 2008/205683 Decision under appeal Date of Decision: 2012-05-21 00:00:00 Before: Conlon SC DCJ File Number(s): 2008/205683

Judgment 1ALLSOP P : I agree with Latham J. 2I would also add that it is unnecessary to deal with the extent to which it may be said that s 5F is truly engaged. 3What I am about to say are the reasons of the Court for refusing the application for an adjournment. 4An application for adjournment was made orally this morning by Mr Miller on the basis of the absence of the transcript of judgment. It was made clear by the applicant that the adjournment of this application would be used as the basis for another adjournment application of the trial. Indeed, the applicant sought orally an order for the stay of his trial until the disposition of this application when the transcript is available. 5There was no basis for the application and there was no good reason to adjourn these proceedings in the light of the matters outlined. 6For those reasons, the order of the Court is that the application for leave to appeal be dismissed. 7LATHAM J : The applicant (who is unrepresented) seeks leave under s 5F(3) of the Criminal Appeal Act 1912 to appeal against orders made by Conlon SC DCJ on 21 May 2012, following the hearing of a Notice of Motion filed by the applicant in proceedings relating to fraud charges, which were then listed for trial on 18 June 2012. 8It is not presently relevant to refer to the basis of the charges in detail. It is sufficient to observe that the Crown alleges that the applicant obtained a $15 million advance from the Uniting Church Trust Association on a fraudulent mortgage and that he then attempted to convert a bank cheque in the sum of $14.5 million into gold coin and bullion. 9The applicant's notice of motion (adopting the numbering therein) sought :- 2)the return of a gold bar, said to be held by a Detective Orth and said to be the lawful property of the applicant's wife, 3)damages for a damaged computer, 4)the return of some coins, said to have been taken during the execution of a search warrant, to the applicant's wife, 5)compliance with subpoenas served on the Corrective Services Department, the Attorney General's Department, the Commissioner of Police and the Office of the DPP, 6)compliance with an application for documents sought under the Freedom of Information Act from the Office of the DPP and the Corrective Services Department, 7)that certain named officers have no involvement in the production of documents sought in prayers 5 and 6, 8)court transcripts and exhibits associated with the proceedings and all documents associated with an application to the DPP to withdraw the proceedings, 9)that further categories of documents be referred to the New South Wales Attorney General on the basis that nominated persons had perverted the course of justice, 10) the unconditional grant of bail, and 11) the vacation of the trial date of 18 June 2012 or that the proceedings be stayed. 10With respect to order 11, his Honour confirmed the trial date and ruled that no proper basis for a stay had been demonstrated. However, the trial date of 18 June was vacated on a Crown application and a fresh trial date of 9 July 2012 was fixed. On 9 and 10 July the trial was stood over to 11 July, when Woodburne SC DCJ refused an application for an adjournment. To the extent that the applicant's notice of motion sought the adjournment of the trial and the application presses that order before this Court, on the basis that expert evidence relating to voice identification was to be obtained by the defence, the applicant's counsel at trial informed Judge Woodburn that expert voice identification opinion was available on or before 13 July 2012. 11The disposition of the application is somewhat complicated by the unavailability of the transcript of the proceedings before Judge Conlon, including a revised judgment. The Court has been provided with a record of the orders made on 21 May 2012. (See Annexure A to the affidavit of Virginia Boulous sworn 11 July 2012). 12His Honour declined to make the orders sought under 2, 3 and 4. With respect to 5 and 6, the record notes that item 1 of the schedule to the subpoena was satisfied by the Director of Public Prosecutions. With respect to item 2 of the schedule, the court was not satisfied that a legitimate forensic purpose had been established. The judge determined that the third item of the schedule fell under s 170 of the Police Act 1990, which establishes privilege in certain police documents, and that production was therefore not required. 13The judge declined to make the orders sought under 7, holding that this was a matter within the discretion of the Commissioner of Police. The judge declined to make the order sought under 8 in view of the fact that the applicant was in possession of the relevant documents and they had already been sent to the New South Wales Attorney General. 14The applicant abandoned prayer 9. Bail was refused in the light of the fact that the applicant is serving a sentence until 2013. 15The applicant's written submissions on the application do not identify any error in Judge Conlon's approach to the notice of motion or any error of principle. The material relied upon essentially re-agitates the merits of the applicant's defence of the charges. 16There is nothing in the material filed in support of the application that is capable of establishing any shortcoming by the DPP in the discharge of its duty of disclosure, or the unavailability of other material relevant to the applicant's defence. It is reasonable to conclude that, if the conduct of the defence is compromised at all by such non disclosure or non production of relevant material, the applicant's counsel would waste no time bringing it to the attention of the trial judge. 17It is also relevant to observe that the applicant's rights are preserved under s 5F(6), which provides that if leave to appeal is refused by the Court, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related. 18No error of law or error in the exercise of discretion has been demonstrated. The case is not one where the interests of justice require intervention by the Court. In these circumstances, the clear procedural distinction between applications for leave and appeals as of right ought be observed : R v Matovski (1989) 15 NSWLR 720. 19I would refuse leave to appeal. 20DAVIES J : I agree with Latham 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. Decision last updated: 08 February 2013