Weldon v R [2019] NSWCCA 205

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Weldon v R [2019] NSWCCA 205 Hearing dates: 7 August 2019 Date of orders: 07 August 2019 Decision date: 07 August 2019 Before: Bathurst CJ at [1]; Garling J at [10]; Wright J at [11] Decision: Refuse application to adjourn. Catchwords: CRIMINAL PROCEDURE – Appeals – Sentence Appeal - Adjournment – Notice of motion to vacate the hearing date and adjourn application filed two days before hearing – Applicant has insufficient funds to fund appeal – Counsel withdrawn – Unexplained withdrawal of funds from unnamed people – Application for adjournment causes difficulty and injustice – Application refused. Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Lionel Robert Weldon (applicant) The Crown (respondent) Representation: Counsel: Applicant (self-represented) M England (respondent)

Solicitors: Grays Legal (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): 2017/72615 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Common Law Citation: Nil Date of Decision: 1 June 2018 Before: Judge Wilson File Number(s): 2017/72615

Judgment 1. BATHURST CJ: By notice filed on 3 April 2019, the applicant, Lionel Robert Weldon sought leave to appeal against the sentence imposed on him on 1 June 2018 for two offences of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 2. The applicant was sentenced to an aggregate term of imprisonment of six years to date from 8 March 2017 and expiring on 7 March 2023. The sentencing judge fixed a non-parole period of four years to expire on 7 March 2021. 3. The appeal is listed for hearing today. On 5 August 2019, the applicant filed a notice of motion to vacate the hearing date and adjourn the application. Notice of his intention to do this was in fact given approximately one week previously. 4. The Crown's position is that the reasons given for the application are inadequate but in the circumstances are prepared to submit to any order of the Court. 5. The application is supported by an affidavit from a solicitor in the employ of the solicitor for the applicant. It deposes that she has been instructed by her principal that the applicant has insufficient funds to fund the appeal and instructions have been given to apply for the hearing to be adjourned. 6. The reason given is that counsel has withdrawn, presumably because of the absence of funds. 7. The affidavit states that the funding issue had not been foreshadowed when the appeal was called over because the applicant was sure the funds would be coming through from "people who were going to assist him" prior to the hearing. The affidavit states that "the issue became apparent about a week ago when our client instructed that those people found themselves unable to assist in time". It also states that, "the issue will be resolved in about October 2019 as advised by those people". 8. The affidavit gives no real explanation as to the reason why funding became unavailable or any real assurance that funding will be available as of October 2019. It is not satisfactory to seek an adjournment simply on the basis of an unexplained withdrawal of funds from unnamed people, coupled with the statement that "as advised by those people", the issue, presumably the issue of funding, will be resolved by October 2019. 9. This Court has considerable demands on its time generally from people who have been incarcerated following conviction and wish to challenge their conviction or sentence. Applications for adjournment of this nature not only cause difficulty with Court administration but injustice to those people whose appeals are unnecessarily delayed. In these circumstances, in my view, the application should be refused. 10. GARLING J: I agree with the Chief Justice. 11. WRIGHT J: I also agree with the Chief Justice.