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Court of Criminal Appeal 15 April 1999

R v MEISSNER

[1999] NSWCCA 91

Drugs
SECTION 5F CRIMINAL APPEAL ACT 1912

Citation: R v Meissner [1999] NSWCCA 91
Court: New South Wales Court of Criminal Appeal
Date: 15 April 1999
Judge(s): Beazley JA, Simpson J, Bell J

Background

The applicant faced serious drug charges in the District Court, namely supplying not less than a commercial quantity of heroin and supply of heroin. He had been arrested in October 1992 and committed for trial in May 1993, with the trial ultimately listed to commence in September 1998.

When the trial was called on, the applicant indicated he had been refused legal aid and sought a stay of proceedings on the basis that he could not afford legal representation. This type of application, known as a "Dietrich application" (after the High Court decision establishing that an accused may be entitled to a stay where they cannot afford counsel for a serious trial), was heard and determined by Luland DCJ in the District Court.

His Honour rejected the stay application, finding that the applicant had not demonstrated insufficient funds to arrange representation. The applicant then sought leave to appeal that ruling to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912.

  • Whether leave to appeal under section 5F of the Criminal Appeal Act 1912 should be granted against the District Court's refusal of a stay of proceedings
  • Whether the trial judge erred in finding that the applicant was not an indigent accused for the purposes of a Dietrich application
  • Whether the manner in which the stay application proceeded before the District Court amounted to a miscarriage of the judge's discretion

Decision

The Court of Criminal Appeal refused the application for leave to appeal. In accordance with its decision in Matovski (1989) 15 NSWLR 720, the Court heard argument directed to the leave question first, without proceeding to full argument on whether the ruling below was correct.

The applicant's original written ground, that the trial judge erred in finding he was not an indigent accused, was ultimately abandoned in oral argument. Counsel instead pressed a different contention: that the discretion miscarried because no formal stay application had been made and the applicant had been "forced on" before he was ready, including giving evidence without documentary support and without a solicitor retained specifically for the Dietrich application.

The Court found little force in those submissions. Even if there had been some initial procedural disadvantage on 8 September 1998, the matter was stood over for more than two weeks to await the Legal Aid Review Committee's determination. The applicant had ample opportunity to gather and present documentary material, and he took that opportunity when the matter resumed on 24 September. Crucially, no application for a further adjournment was made at the final hearing. No error of principle was identified in the trial judge's reasoning.

The Court also noted, by way of observation, that it remained open to the applicant to bring a fresh stay application in the District Court supported by new material, particularly given that the Supreme Court proceedings concerning his Point Piper property may have since resolved. The Court indicated that the earlier determination should not bar a further application if fresh material existed.

Orders Made

  • Application for leave to appeal refused

Key Takeaways

  • A Dietrich application for a stay of criminal proceedings requires an accused to demonstrate genuine indigency; a finding that an applicant's assets exceeded the estimated cost of trial is a proper basis on which to refuse the application.
  • Under section 5F of the Criminal Appeal Act 1912, leave is required before an interlocutory ruling of the District Court, such as the refusal of a stay, can be appealed to the Court of Criminal Appeal.
  • No error was established in the trial judge's approach simply because the Dietrich application was brought on before the applicant had gathered all supporting documents, where the applicant was subsequently given substantial time and took the opportunity to supplement his evidence.
  • In dismissing the leave application, the Court of Criminal Appeal confirmed that failing to seek an adjournment at the relevant hearing will undermine a later argument that the applicant was prejudiced by insufficient preparation time.
  • A prior refusal of a Dietrich stay application does not necessarily bar a further application in the District Court, provided it is supported by fresh material that was not before the court on the first occasion.

Legislation and Cases Referenced

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

Cases:
- R v Matovski (1989) 15 NSWLR 720
- Dietrich v The Queen (implicit throughout, referenced by name as the foundational authority for stay applications based on inability to afford legal representation)