Finch v R (No 2) [2016] NSWCCA 153

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Finch v R (No 2) [2016] NSWCCA 153 Hearing dates: On the papers Decision date: 04 August 2016 Before: Payne JA; McCallum J; Davies J Decision: Leave to add a Proposed Ground 11 to the notice of appeal alleging incompetence of defence counsel at the trial is refused. Catchwords: PRACTICE AND PROCEDURE – criminal appeal – whether leave should be granted to add a further ground of appeal Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5 Criminal Appeal Rules (NSW) r 25A Drug Misuse and Trafficking Act 1985 (NSW) s 4 Cases Cited: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 Alkhair v R [2016] NSWCCA 4 Finch v R [2016] NSWCCA 133 R v Birks (1990) 19 NSWLR 677 Category: Procedural and other rulings Parties: Appellant: Stephen John Finch Respondent: Regina Representation: Counsel: Appellant: Self represented Crown: V Lydiard

Solicitors: Appellant: Self represented Crown: Solicitor for Public Prosecutions File Number(s): 2010/291599 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 11 February 2013 Before: Berman SC DCJ File Number(s): 2010/291599

Judgment 1. THE COURT: On 13 July 2016 the principal judgment was delivered by the Court in this appeal: Finch v R [2016] NSWCCA 133. In order to understand what follows, this judgment should be read together with the principal judgment. 2. The applicant was self-represented at the hearing of the appeal. During the hearing he sought leave to raise a further ground of appeal concerning the alleged incompetence of his counsel at trial, which was referred to in the principal judgment as "Proposed Ground 11". 3. By Proposed Ground 11 the appellant sought to contend that defence counsel at the trial was incompetent in two respects: 1. he was often late; and 2. he "didn't seem to be aware about the laws concerning LSD", which the Court concluded meant that he did not object to evidence concerning the method of consumption of cardboard LSD or make the submission concerning liquid LSD referred to in addressing Ground 3 on the Notice of Appeal. 1. The Court reserved its decision on Mr Finch's application to add proposed Ground 11 at the hearing of the appeal and indicated it would give the parties an opportunity to address the issue in writing after delivery of the principal judgment. 2. On 13 July 2016, in respect of Proposed Ground 11 the Court made the following order: (4) Within 14 days the parties exchange with one another and file written submissions of no greater length than 10 pages each with the Registrar of the Court of Criminal Appeal on the subject of whether: (a) having regard to these reasons, leave should be granted to amend the notice of appeal to include Proposed Ground 11; and (b) if leave under paragraph 4(a) of these orders were granted, what orders the Court should make and whether it would be necessary or desirable to receive any further evidence or to conduct any further oral hearing of the matter.