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Court of Criminal Appeal 2 December 2005

Bryce v Regina

[2005] NSWCCA 462

Theft & property
CRIMINAL LAW AND PROCEDURE LEGAL AID WITHDRAWN NO APPEARANCE OF APPELLANT

Citation: Bryce v Regina [2005] NSWCCA 462
Court: New South Wales Court of Criminal Appeal
Date: 2 December 2005
Judge(s): Grove J, Sully J, Howie J

Background

The appellant had been sentenced in the Sydney District Court by Kinchington DCJ on 23 July 2004 following convictions on two charges of possessing housebreaking implements and one charge of breaking and entering with intent. The Legal Aid Commission filed an application for leave to appeal against that sentence on 11 July 2005.

On the same day the application was filed, the appellant escaped from custody. When the matter came before the Court of Criminal Appeal for callover on 4 August 2005, the Legal Aid Commission advised the Court of the escape. The matter was stood over twice, on 15 September 2005 and again on 27 October 2005.

At the October mention, the Legal Aid Commission formally withdrew from the proceedings. By the time the matter was listed for hearing on 2 December 2005, the Department of Corrective Services had confirmed the appellant remained at large. Because the Registry did not know the appellant's current address, no notice of the hearing could be served on him.

  • Whether the appeal should be dismissed for want of prosecution where the appellant was at large, unrepresented, and had not appeared before the Court

Decision

Grove J noted that upon the matter being called, there was no appearance by the appellant. He recounted the history of the proceedings, including the escape from custody, the standing over of the matter on two separate occasions, and the eventual withdrawal of Legal Aid.

Enquiries made to the Department of Corrective Services on 28 November 2005 confirmed the appellant had been at large since 11 July 2005. The Court was unable to notify the appellant of the listing because his whereabouts were unknown.

In those circumstances, Grove J proposed the appeal be dismissed for want of prosecution. Sully J and Howie J each agreed, and the order was made accordingly.

Orders Made

  • The appeal was dismissed for want of prosecution.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal exercised its power to dismiss proceedings for want of prosecution where an appellant has escaped custody, failed to appear, and can no longer be contacted.
  • Legal Aid withdrawal does not itself resolve pending appeal proceedings; the matter remains before the court and must be formally disposed of.
  • Where an appellant's whereabouts are unknown because of an escape from lawful custody, the Court proceeded without notice being served on the absent party.
  • A procedural history of multiple adjournments did not prevent the Court from ultimately dismissing the matter once it was clear the appellant remained at large with no prospect of appearance.
  • No substantive consideration of the underlying sentencing grounds was undertaken; the dismissal was entirely procedural in nature.

Legislation and Cases Referenced

No legislation or cases were cited in the judgment text or metadata.