Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions v Martin (a pseudonym) [2018] NSWCCA 207 Hearing dates: 21 September 2018 Decision date: 21 September 2018 Before: Basten JA at [1]; Beech-Jones J at [18]; Wilson J at [19] Decision: (1) The listing of the hearing of the Director's appeal under s 5F of the Criminal Appeal Act for today is vacated. (2) The matter is relisted for hearing on Friday, 5 October 2018. Catchwords: CRIMINAL APPEAL – procedure – interlocutory appeal by prosecutor – judgment delivered on third day of trial – appeal to be dealt with urgently – respondent's trial counsel unavailable – legal aid application unresolved – professional responsibilities of counsel – issues requiring counsel's attention – unfairness to accused/respondent in proceeding without counsel Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F Texts Cited: Practice Note No SC CCA 1: Court of Criminal Appeal – General, cll 35, 36 Category: Procedural and other rulings Parties: Director of Public Prosecutions (Applicant) Martin (a pseudonym) (Respondent) Representation: Counsel: Ms H Roberts / Mr R Howle (Applicant) Mr K Stidwell Solicitor (Respondent) Solicitors: Director of Public Prosecutions (Applicant) Stidwell Solicitors (Respondent) File Number(s): 2016/262074 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 12 September 2018 Before: Maiden SC DCJ File Number(s): 2016/262074 Judgment 1. BASTEN JA: On 10 September 2018 preliminary steps were taken with respect to a criminal trial in which the present respondent was the accused. An indictment was presented charging him with four counts of sexual intercourse with a child then under the age of 10 years. He entered pleas of not guilty. The trial judge (Maiden SC DCJ) proceeded to hear evidence and argument in relation to certain "tendency evidence" (that is evidence of conduct by the accused on occasions other than those involving the charged conduct), before a jury was empanelled. On 12 September 2018 the judge delivered reasons for rejecting that evidence. The Director of Public Prosecutions has a right of appeal to this Court against any decision or ruling on the admissibility of evidence if the effect is to eliminate or substantially weaken the prosecution case: Criminal Appeal Act 1912 (NSW), s 5F(3A). On 14 September 2018 the Director filed a notice of appeal. 2. This Court's practice note provides that such appeals will be heard "as expeditiously as possible": cl 35. [1] That is because a trial is pending. Further, appeals will not be adjourned on the basis that the appellant is obtaining an advice on the merits of the appeal: cl 36. (That note appears to envisage an appeal brought by the accused against an unfavourable judgment or order.) 3. The Registrar made arrangements on 17 September 2018 for the matter to be listed before the Court today, 21 September. The trial is the subject of a grant of legal aid to the accused. Through his solicitor, the Court has been informed that trial counsel is not available today to appear on the Director's appeal because Legal Aid has required that a separate grant be made with respect to the Director's application in this Court and that, before aid is granted, a "merits advice" will be required from counsel other than trial counsel. That advice has not yet been forthcoming, understandably given the timeframe, with the result that the respondent seeks an adjournment of the hearing fixed for today. 4. One factor favouring the grant of an adjournment is that it is the respondent's application for an adjournment and, the respondent being in custody, bail refused, is the one who may suffer if the trial has to be adjourned until May or June 2019, which the Court is informed is likely. However, that consideration should not be given much weight in circumstances where the respondent is, in a practical sense, in the hands of his lawyers and the Legal Aid Commission. 5. The requirement of the Legal Aid Commission that a grant of aid will depend upon the obtaining of merits advice from counsel other than trial counsel appears, on its face, to defy rational explanation. It is one thing to impose such a condition where the accused is the applicant who seeks to review an adverse interlocutory ruling of the trial court; it makes very little sense to impose such a requirement where the accused has been successful at trial and seeks to retain the fruits of his success. The Registrar of the Court has communicated with the Legal Aid Commission in relation to this issue. Nevertheless, the Commission has confirmed that the requirement stands. 6. The Legal Aid Commission is staffed, relevantly for present purposes, by trained lawyers who work on a daily basis with applications for legal aid in indictable criminal matters. If some independent review of a grant to defend an interlocutory ruling were required, it might be expected that that review could be undertaken in-house so that an immediate response could be made to the application. In the alternative, the application might have been considered as simply a continuation of the grant with respect to the trial. 7. There may be an explanation for the Commission's stance, but it is not self-evident. Because the Commission's position has not changed in the face of informal communications from the Court, it is appropriate that this matter be aired publicly in the hope that steps will be taken to avoid this situation arising again. 8. There is a second point to be addressed. It involves the position of trial counsel. The issue may not have arisen in the past because the Court would expect trial counsel to be prepared to appear in defence of an interlocutory judgment, particularly where the appeal is dealt with at a time when the trial, had it proceeded, might be expected to still be running. (Indeed, the Court has been informed that if the matter is determined today, the trial will commence next Monday.) There are occasions when counsel is expected to fulfil his or her professional obligations by appearing in circumstances where funding may be uncertain. There must, at least, be a reasonable expectation that legal aid, which had apparently been granted for the trial, would be extended to cover resistance to the current appeal. 9. The Court was informed, however, that counsel lives on the north coast and has not been prepared to attend the sitting of this Court in Sydney unless fees are guaranteed. The solicitor has no funds to provide such a guarantee and has no grant of legal aid for that purpose. 10. Without further inquiry and hearing from counsel, it is doubtful whether this is an acceptable response. The offences the subject of the charges are alleged to have been committed in a western suburb of Sydney. The trial is being conducted at Penrith. As a general proposition, the fact that counsel briefed to appear at a trial lives on the north coast of New South Wales and would incur additional expenses in travelling to and from Sydney for the hearing of an interlocutory appeal is not an acceptable reason for non-attendance. 11. It may, of course, be said that there are many experienced criminal counsel at the Sydney Bar. Whether sufficient efforts have been made to find someone available and willing to undertake the task of supporting the judge's ruling at short notice and with no guarantee of payment is not entirely clear. However, if insufficient steps have been taken, it remains the fact that the respondent is the one will suffer if the matter goes ahead in the absence of representation. 12. The Director resists the application for an adjournment. Counsel for the Director noted that the effect of the adjournment even for a week or two, would most probably result in the trial being stood over until May or June 2019. If the matter were relisted on Friday, 5 October, which is one possibility which may be accommodated within the Court's arrangements, counsel presently briefed in the matter for the Director will be unavailable. Further, although no jury has been empanelled, such adjournments tend to delay and fragment the proper administration of criminal justice. The complainant has no doubt been prepared for the anticipated hearing which will be further delayed if the adjournment is granted. She will suffer the consequences of further delay and will now have to prepare herself again in some months' time. 13. These are all material considerations to be weighed in considering the adjournment application. They fall in the balance on the same side as the lack of objective justification for the application, to refuse the adjournment application would be to cause, potentially, a significant detriment to the accused and the respondent to the appeal. He would be left without counsel through no fault of his own. He has a solicitor, Mr Stidwill, who, not unreasonably, professes inadequate professional expertise to defend the Director's application adequately in his client's interest. That explanation should be accepted; it accords with experience and is the reason why counsel has been briefed to conduct the trial. 14. It should be added that on the Court's assessment of the papers, it cannot be said that the Director's application is hopeless or will inevitably be rejected. The principles regarding tendency evidence have been in a state of flux and the issues raised by this matter are complex. The respondent is entitled to experienced representation to present his case. 15. In these circumstances, the hearing of the Director's application must be adjourned. It should not, however, be adjourned beyond the period necessary to allow the respondent a reasonable opportunity to obtain counsel. Accordingly, the application should be relisted for Friday, October 5. It is unfortunate that the relisting will cause some inconvenience to the Director, but as it is his application, he will have to make the necessary arrangements to accommodate the relisting. 16. Given the unfortunate circumstances attending the matter, as outlined above, the Registrar is directed to provide a copy of these reasons to the Director, Legal Aid Commission of New South Wales. 17. The listing of the hearing of the Director's appeal under s 5F of the Criminal Appeal Act for today is vacated; the matter is relisted for hearing on Friday, 5 October 2018. 18. BEECH-JONES J: I agree. 19. WILSON J: I also agree. ********** Endnote 1. Practice Note No SC CCA 1: Court of Criminal Appeal – General, cl 35. 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: 24 September 2018