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Court of Criminal Appeal 14 April 2003

R v. Gilfillan

[2003] NSWCCA 102

Also reported as (2003) 139 A Crim R 460
Sexual offences
TRIAL JUDGE MISDIRECTS HIMSELF TERMINATION OF TRIAL

Citation: R v Gilfillan [2003] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 14 April 2003
Judges: Santow JA, Buddin J, Smart AJ

Background

The accused faced six counts of aggravated sexual assault under s 61J of the Crimes Act 1900, each carrying a maximum penalty of 20 years imprisonment. The alleged offences arose from a relationship with a complainant with whom he had lived intermittently for several years. The trial proceeded in the District Court before Freeman DCJ, with the complainant having given evidence over several days by the time the difficulty arose.

During the Crown case, the prosecution decided to call additional witnesses, apparently to bolster the complainant's credit. This decision had a significant consequence: it created a conflict of interest for the accused's instructing solicitor, Mr Crozier, who had a prior connection to those witnesses. That conflict made it impossible for Mr Crozier to continue acting.

The accused applied for an adjournment to obtain new legal representation. Freeman DCJ refused the application and declined to terminate the trial, leaving the accused to face the remainder of a serious and complex proceeding without any legal representation. The accused sought leave to appeal that refusal under s 5F of the Criminal Appeal Act 1912.

  • Whether the trial judge erred in refusing to adjourn the trial to allow the accused to obtain substitute legal representation after his solicitor was required to withdraw due to a conflict of interest.
  • Whether the conflict of interest afflicting the solicitor was genuine, and whether it was caused or contributed to by the Crown's decision to call additional witnesses during the trial.
  • Whether an attempt by the Crown Prosecutor to resolve the conflict by ascertaining witnesses' willingness to waive privilege provided a viable solution.
  • Whether, in all the circumstances, the accused could receive a fair trial if forced to continue unrepresented on serious charges.

Decision

The Court of Criminal Appeal unanimously held that the trial judge's discretion had miscarried and that the trial should have been terminated. While the Court acknowledged the strong public interest in a part-heard criminal trial proceeding to verdict, it held that this interest had to yield to the paramount need to ensure a fair trial for the accused.

The Court found that the conflict of interest affecting Mr Crozier was genuine and was directly precipitated by the Crown's decision, made during the trial, to call the additional witnesses. The Court did not criticise that decision as improper, but noted that it was the Crown's own choice that created the problem. The characterisation of those witnesses as peripheral, advanced by the Crown on appeal, was rejected: the Crown had elected to call them, their evidence was tendered for a purpose, and their credit was therefore a matter of potential significance at trial.

The Court also rejected the suggestion that the Crown Prosecutor's attempt to resolve the conflict, by ascertaining whether the witnesses would waive privilege, provided a workable solution. The Court expressed the tentative view that it was inappropriate for a party directly involved in the litigation to take on the task of resolving the question of privilege on behalf of witnesses, and that what was established in any event fell short of a viable resolution.

Faced with a serious multi-count trial where representation was plainly essential to fairness, and where the accused could not obtain substitute representation at short notice through no fault of his own, the Court concluded that the trial judge was wrong to allow the proceedings to continue. The decision to announce the outcome immediately, before reasons were published, reflected the urgency of the situation.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The decision of Freeman DCJ refusing to terminate the applicant's trial set aside.
  • The applicant's trial terminated.
  • A new trial to be had.
  • Order or certificate for costs declined (no power to make such an order in the circumstances).

Key Takeaways

  • The paramount consideration in a criminal trial is the accused's right to a fair trial, and that right can override the strong public interest in a part-heard trial proceeding to verdict.
  • Where a conflict of interest arises from the Crown's own conduct during the trial, such as a mid-trial decision to call additional witnesses, a court cannot readily treat the resulting loss of representation as the accused's fault or as a basis to refuse an adjournment.
  • A conflict of interest is not rendered less serious merely because the witnesses whose involvement created it are characterised as peripheral; if the Crown elects to call witnesses, their credit becomes a live issue at trial.
  • An attempt by one of the parties to resolve a conflict of interest by ascertaining witnesses' willingness to waive privilege does not necessarily provide a viable or procedurally sound solution.
  • Under the Criminal Appeal Act 1912 and the Suitors' Fund Act 1951, the Court of Criminal Appeal has no power to award costs on an appeal of this kind; any application for payment from the Suitors' Fund under s 6C falls to the Director-General, not the Court.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5F, 17
- Crimes Act 1900 (NSW), s 61J
- Suitors' Fund Act 1951 (NSW), ss 6, 6A, 6B, 6C

Cases:
- R v Alexandroaia (1995) 81 A Crim R 286
- BK (2000) 110 A Crim R 298
- R v Greer (1992) 62 A Crim R 442
- House v The King (1936) 55 CLR 499
- Thornberry v The Queen (1995) 69 ALJR 777
- Craig v South Australia (1994-1995) 184 CLR 163
- DPP v Thomas James Allan (unrep, NSWCCA, 1 November 1995)
- Thompson v Mikkelsen (unrep, NSWSC, 3 October 1974)
- Lilley (2000) 111 A Crim R 468