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Court of Criminal Appeal 10 August 1999

Regina v Cox

[1999] NSWCCA 229

Public order & justice offences
CRIMINAL LAW & PROCEDURE FINDING OF FACT BELOW NOT INDIGENT APPLICATION DISMISSED.

Citation: Regina v Cox [1999] NSWCCA 229
Court: New South Wales Court of Criminal Appeal
Date: 10 August 1999
Judge(s): Sperling J, Levine J, McInerney AJ

Background

The appellant faced trial in the District Court alongside co-accused on charges that are not detailed in the judgment. He applied for a permanent stay of proceedings on the basis that he lacked the funds to retain legal representation, relying on the High Court's decision in Dietrich v The Queen (1992-93) 177 CLR 292, which recognises that an indigent accused may in certain circumstances be entitled to an adjournment or stay where the absence of counsel would result in an unfair trial.

The trial judge, Ainslie-Wallace DCJ, refused both the permanent stay and a lengthy adjournment, finding that she was not satisfied the appellant had in fact established that he was indigent. She did grant shorter adjournments on two occasions to allow the appellant to pursue a legal aid appeal and to prepare his defence. The co-accused proceeded to trial without him, and his own trial was listed for 27 September 1999.

The appellant then applied, out of time, to the Court of Criminal Appeal for leave to appeal under section 5F of the Criminal Appeal Act 1912 against the District Court's refusal. He sought either a permanent stay or an adjournment of eighteen to twenty-four months to allow him to earn enough money to fund his own legal representation.

  • Whether the trial judge erred in finding the appellant had not established indigence as a precondition to relief under Dietrich
  • Whether the decision to refuse a permanent stay or a longer adjournment was attended by sufficient doubt to warrant the grant of leave to appeal under section 5F
  • Whether the interests of justice otherwise required the Court of Criminal Appeal to intervene

Decision

The Court confirmed that the burden rested on the appellant to establish indigence as a necessary condition for any Dietrich-based relief, citing Canellis (1994) 181 CLR 309. The trial judge had before her evidence that strongly suggested the appellant's account of his finances was not truthful, and she declined to accept it. No objective evidence compelled a contrary finding. The Court drew on the unreported decision in Carter for the proposition that it is difficult to establish error where a judge has simply not been satisfied by the party who bears the onus of proof.

On the question of leave, the Court applied the two-limbed test from Steffan and Matovski: leave is granted only where the decision is attended by sufficient doubt to warrant the appeal being argued, or where the interests of justice otherwise require intervention. An appeal under section 5F is not a rehearing, and if leave were granted the appeal would be against a discretionary decision attracting the usual appellate constraints.

The Court also noted that the adjournment argument had shifted in character since the hearing below. Before Ainslie-Wallace DCJ, the adjournment was sought to allow time to prepare; on appeal it was sought to allow time to earn money for legal fees. Both grounds, however, rested on the same underlying premise of indigence, which the trial judge had not accepted. The Court found the interests of justice did not require intervention on this alternative footing either.

In all the circumstances, the Court was not satisfied the decision was attended by sufficient doubt, nor that any other consideration required the Court's intervention. The application was dismissed.

Orders Made

  • Application for leave to appeal dismissed.

Key Takeaways

  • Under Dietrich, an accused bears the onus of establishing indigence as a precondition to obtaining a permanent stay or adjournment based on the inability to afford legal representation.
  • A trial judge's factual finding that an accused has not discharged that onus is a difficult target on appeal, particularly where the judge had material before her casting doubt on the truthfulness of the evidence.
  • Leave to appeal under section 5F of the Criminal Appeal Act 1912 will be granted only where the decision is attended by sufficient doubt to warrant argument on appeal, or where the interests of justice otherwise require intervention.
  • Refusing the application, the Court of Criminal Appeal confirmed that an appeal under section 5F is not a rehearing, and where leave is granted the appeal is constrained by the usual principles governing discretionary decisions.
  • Reframing the basis for the adjournment sought on appeal does not avoid the underlying factual finding at first instance if both formulations depend on the same unestablished premise.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), section 5F

Cases:
- Dietrich v The Queen (1992-93) 177 CLR 292
- Canellis (1994) 181 CLR 309
- Carter (CCA (NSW), 5 September 1995, unreported)
- BWM (1996-97) 91 A Crim R 260
- Steffan (1992-93) 30 NSWLR 633
- Matovski (1988-89) 15 NSWLR 720