Citation: Regina v Shalala [2002] NSWCCA 461
Court: NSW Court of Criminal Appeal
Date: 1 November 2002
Judge(s): Dunford J, Sperling J, Carruthers AJ
Background
The appellant was convicted in the District Court at Campbelltown in May 2000 of supplying a commercial quantity of heroin. He was sentenced to seven years' imprisonment with a five-year non-parole period. He had been self-represented in all proceedings since his conviction.
The central ground of appeal was that the appellant received incompetent legal representation at trial. Specifically, he alleged that his trial counsel failed to cross-examine police witnesses about alleged threats made by the arresting officer, and advised him not to raise those threats in his own evidence. His instructing solicitor at trial swore an affidavit supporting key aspects of the appellant's account.
Before the appeal hearing (listed for 2 December 2002), the appellant applied for orders compelling several former legal representatives to attend and give evidence. The representatives in question had acted at different stages: three at the committal proceedings, and two (counsel and solicitor) at the trial itself.
Legal Issues
- Whether former committal-stage legal representatives (senior counsel, junior counsel, and a solicitor) should be ordered to attend the appeal hearing to give evidence
- Whether former trial counsel and the instructing solicitor should be ordered to attend the appeal hearing to give evidence
- What statutory powers were available to compel attendance of a witness in custody
Decision
Carruthers AJ (with whom Dunford and Sperling JJ agreed) set out the procedural history in detail before turning to the merits of each attendance application.
In relation to the three legal representatives from the committal proceedings, the court found their attendance could serve no useful purpose. Neither senior counsel nor junior counsel had any recollection of the instructions they received at committal. The committal transcript was already available to both parties, and the manner in which those proceedings were conducted could be examined from that record. The court concluded that nothing these three witnesses could say would have any real bearing on the allegations of professional incompetence directed at trial counsel.
By contrast, the court found it necessary and expedient in the interests of justice to compel the attendance of trial counsel and the instructing solicitor. The instructing solicitor had already sworn an affidavit supporting the appellant's account, and trial counsel had responded to the allegations by way of his own affidavit. Both were directly implicated in the events at the heart of the appeal grounds.
The instructing solicitor was in custody at the time of the hearing, requiring the court to invoke a separate statutory power to secure his production. The court also directed the Registrar to obtain a transcript of counsel's final addresses at trial, if available.
Orders Made
- Application for orders requiring attendance of Mr Wilkinson, Mr Goold, and Mr Steirn SC dismissed
- Trial counsel Mr Watson ordered to attend before the Court on 2 December 2002 under s 12 of the Criminal Appeal Act 1912
- Instructing solicitor Mr Sukkar (then in custody) ordered to be produced before the Court on 2 December 2002 under s 77 of the Crimes (Administration of Sentences) Act 1999
- Registrar directed to request a copy of the transcript of final addresses by counsel at the trial from the Reporting Services Branch
Key Takeaways
- Compelling a former legal representative to attend a conviction appeal requires more than a bare assertion that the person may have relevant knowledge; the court assessed each application against whether the proposed witness could give evidence genuinely relevant to the grounds pursued.
- Where committal-stage lawyers had no recollection of their instructions and a transcript of those proceedings was already available to both parties, the Court of Criminal Appeal held their compelled attendance was not justified.
- The existence of corroborating affidavit evidence from the instructing solicitor, combined with a direct response affidavit from trial counsel, was sufficient to warrant ordering both to attend and be examined at the appeal hearing.
- Different statutory powers apply depending on whether the proposed witness is at liberty: s 12 of the Criminal Appeal Act 1912 applied to trial counsel, while s 77 of the Crimes (Administration of Sentences) Act 1999 was used to secure the production of the solicitor who was in custody.
- In assessing the utility of witness attendance, the court focused on whether the proposed evidence would bear on the specific allegations of professional incompetence at trial, rather than on conduct at earlier stages of proceedings.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 7, s 12
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), s 29
- Crimes (Administration of Sentences) Act 1999 (NSW), s 77
Cases: No cases were cited in the judgment.