Citation: Pierre Tabar v R [2006] NSWCCA 139
Court: New South Wales Court of Criminal Appeal
Date: 20 March 2006
Judge(s): Adams J
Background
The applicant had pleaded guilty to a criminal offence on 5 May 2003 and subsequently abandoned his appeal against conviction. He later sought to withdraw that notice of abandonment and revive his conviction appeal. The Court of Criminal Appeal had been pressing him for years to file material in support of that application.
Despite repeated communications from the Registrar and a formal "last opportunity" warning issued by the Court in November 2004, the applicant had provided nothing to support either the withdrawal of his abandonment notice or the fresh evidence he claimed to rely upon. The matter had been set down for hearing and confirmed for 27 March 2006.
On the day of the application, the applicant sought an adjournment, claiming he had instructed a solicitor to retain a private investigator to look into the background of the victim. Enquiries by the Crown established that the solicitor had received correspondence from the applicant but had not responded, had not accepted instructions, and had taken no action of any kind.
Legal Issues
- Whether an adjournment should be granted to allow the applicant to retain a private investigator to gather material relevant to his conviction appeal.
- Whether the applicant had provided any basis to support the withdrawal of his notice of abandonment of his conviction appeal.
Decision
Adams J refused the adjournment application without hesitation. The court found that no steps had actually been taken to retain a private investigator. The solicitor the applicant named had not accepted instructions and had done nothing, a position the applicant himself effectively conceded when he acknowledged he had heard nothing from the solicitor.
The court characterised the adjournment application as nothing more than an attempt to delay the hearing and determination of the application. The applicant had been on notice for well over a year that the court required him to produce supporting material, and he had consistently failed to do so.
Adams J also noted a broader difficulty with the applicant's position. The applicant had made allegations about the investigating detectives and suggested the victim had withdrawn her complaints, but given that he had himself pleaded guilty, it was difficult to see how such material would be relevant to either the conviction or the propriety of having abandoned his conviction appeal in the first place.
Orders Made
- Application for adjournment refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that an applicant seeking to withdraw a notice of abandonment bears a continuing obligation to produce supporting material when directed to do so by the court, and persistent failure to comply will not be cured by a last-minute adjournment request.
- Claiming to have instructed a solicitor is insufficient to justify an adjournment where the solicitor has not accepted instructions and has taken no steps whatsoever.
- An adjournment application framed around investigations into a victim's background carries obvious difficulties where the applicant originally pleaded guilty to the offence in question.
- Repeated, documented failures over an extended period to comply with directions will weigh heavily against the exercise of discretion to grant procedural indulgences.
- The Crown's ability to compel witnesses to attend, including the victim and legal practitioners, reinforced the court's view that there was no proper basis to delay the hearing further.
Legislation and Cases Referenced
No legislation or cases were cited in the provided judgment text.