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Court of Criminal Appeal 19 May 1999

Regina v Sinanovic

[1999] NSWCCA 216

Fraud & dishonesty
CRIMINAL LAW STAY OF PROCEEDINGS ACCESS IN GOAL TO ASSISTANCE.

Citation: Regina v Sinanovic [1999] NSWCCA 216
Court: Court of Criminal Appeal, New South Wales
Date: 19 May 1999
Judge(s): Levine J, Greg James J, Smart AJ

Background

The applicant was an accused person held on remand in Sydney, facing two indictments involving fraud offences. The charges included obtaining cheques by deception through misrepresentations about Brazilian currency and obtaining a diamond ring by deception. He had already been convicted on the diamond ring charges and was awaiting a further trial, listed to commence on 21 June 1999.

The applicant represented himself throughout these proceedings. He was said to be unable to read or write English, and his wife had extensive knowledge of his matters, the documents involved, and the potential defences available to him. The applicant and his wife argued that restrictions placed by the Corrective Services Department on her legal visits to him in gaol were preventing adequate preparation for trial.

Four separate interlocutory applications had been made to the District Court at various points between August 1998 and April 1999, each broadly seeking either orders about where the applicant should be held in custody or a stay of proceedings on the ground of abuse of process. All four applications were dismissed. The applicant then sought leave to appeal those decisions to the Court of Criminal Appeal.

  • Whether either the District Court or the Court of Criminal Appeal had power to direct where a remand prisoner should be held in custody.
  • Whether restricted access by the applicant's wife to him in gaol amounted to an abuse of process warranting a stay of proceedings.
  • Whether leave to appeal should be granted against four interlocutory dismissals by District Court judges.

Decision

Smart AJ, with Levine J and Greg James J agreeing, refused leave to appeal in respect of all four applications. The Court accepted the fundamental proposition that neither the District Court nor the Court of Criminal Appeal has power to direct where a person is held in custody or to control the legal access granted to a remand prisoner. Those matters fall within the jurisdiction of the Corrective Services Department.

On the stay applications, the Court found that none of the problems raised, either individually or in combination, warranted the granting of a stay at that stage. Graham DCJ had already given careful consideration to these issues in December 1998 and had correctly concluded that the threshold for a stay had not been met. The Court of Criminal Appeal found no error in that approach.

However, the Court expressed genuine concern about the adequacy of preparation for the upcoming June 1999 trial. Smart AJ noted that if the applicant was unable to prepare sufficiently thoroughly, and doubted he could do so without his wife's assistance, then the District Court would need to consider an adjournment. If restrictions on access persisted beyond that point, a stay application before the District Court might become warranted in the future.

All three judges emphasised the importance of the trial proceeding without impediment and the community interest in finality. Levine J added that nothing should jeopardise the fair trial through any failure by relevant authorities or those acting in the applicant's interests.

Orders Made

  • Leave to appeal refused in respect of each of the four applications.

Key Takeaways

  • Neither the District Court nor the Court of Criminal Appeal holds power to direct where a remand prisoner is held in custody or to control the legal access granted to that prisoner by the Corrective Services Department.
  • A stay of proceedings for abuse of process requires a high threshold; difficulties in preparation, even when genuine and cumulative, do not automatically reach that threshold.
  • The Court of Criminal Appeal confirmed that where adequate preparation for trial becomes impossible due to restricted access to necessary assistance, the appropriate remedy may be an adjournment sought in the trial court, with a stay potentially available only if restrictions persist.
  • Recommendations by senior judges regarding legal access carry weight, but do not in themselves confer jurisdiction on a court to enforce compliance with those recommendations against the Corrective Services Department.
  • In refusing leave to appeal, the Court expressly flagged that the question of a stay could be revisited by the District Court if circumstances at the time of trial so required, illustrating that dismissal of an interlocutory stay application is not necessarily a final determination of the issue.

Legislation and Cases Referenced

Legislation:
- Justices Act 1902 (NSW), s 48E (mentioned in the context of a magistrate's refusal to require a witness to attend)

Cases:
- No cases were formally cited in the judgment.

(The judgment references, without citation, prior observations made by Brennan CJ in the High Court and Hunt CJ at Common Law in this Court regarding the importance of granting the applicant legal access to his wife.)