Citation: Potier v Regina [2006] NSWCCA 300
Court: NSW Court of Criminal Appeal
Date: 13 September 2006
Judge(s): Hunt AJA, Barr J, Johnson J
Background
The appellant was mid-trial in the District Court before Judge Shadbolt when his counsel and solicitor were granted leave to withdraw. He applied for an adjournment to retain fresh legal representation. The trial judge refused that application, drawing an inference from statements made by departing counsel (who spoke under constraints imposed by legal professional privilege) that the appellant was at fault for the breakdown of the legal relationship.
The appellant, now self-represented, sought leave to appeal that refusal under s 5F of the Criminal Appeal Act 1912. Section 5F allows an accused to appeal certain interlocutory decisions during a trial, before any conviction is entered. The trial itself was still ongoing at the time of the appeal.
To support his appeal, the appellant proposed to waive his legal professional privilege and call his former counsel before the Court of Criminal Appeal to explain why they had withdrawn, with the aim of negating the trial judge's inference that he was to blame.
Legal Issues
- Whether the trial judge's refusal of an adjournment following counsel's withdrawal was an appropriate basis for leave to appeal under s 5F of the Criminal Appeal Act 1912
- Whether the Court of Criminal Appeal should receive fresh evidence from former counsel to contradict the inference drawn by the trial judge
- Whether the procedure of introducing that fresh evidence at the appellate stage, rather than before the trial judge, was appropriate in the circumstances
Decision
The Court accepted that the inference the trial judge drew from the material before him was clearly open. The statements counsel made to the judge were constrained by legal professional privilege at that time, but the inference that the appellant bore fault for counsel's departure was reasonably available on that material.
The Court declined to receive the fresh evidence at the appellate stage. It reasoned that the appropriate forum for that evidence was the trial court itself. The trial was still on foot, which meant the appellant had an available avenue: he could renew his adjournment application before Judge Shadbolt, this time supported by evidence from former counsel freed from privilege constraints.
The Court observed that the trial judge would be in a far better position to assess such evidence in the full context of the ongoing trial. If satisfied by that evidence, the judge could reconsider whether the difficulties facing the unrepresented appellant warranted an adjournment or even an abortion of the trial.
The Court also took care to remind the appellant that a refusal of leave under s 5F does not permanently foreclose the arguments he raised. Under s 5F(6) of the Criminal Appeal Act, those same arguments remain available to him in any appeal following a conviction.
Orders Made
- Leave to appeal refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that a trial judge's inference, drawn from available material during proceedings, will not be disturbed on a s 5F appeal merely because fresh evidence might later contradict it, especially where that evidence could be placed before the trial judge instead.
- Introducing fresh evidence by waiving legal professional privilege is a step that belongs before the court that drew the contested inference, not before an intermediate appellate court, when the trial remains on foot.
- Under s 5F(6) of the Criminal Appeal Act 1912, refusal of leave to appeal an interlocutory decision does not prevent an accused from raising the same arguments in a post-conviction appeal.
- In dismissing the application, the Court noted that the trial judge was better placed than the appellate court to weigh fresh evidence about counsel's withdrawal in the broader context of the trial as a whole.
- The procedural avenue of renewing an adjournment application before the trial judge, armed with unprivileged evidence from former counsel, remained open and was the mechanism the Court pointed to as appropriate in the circumstances.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F (interlocutory appeals by accused); s 5F(6) (refusal of leave does not preclude post-conviction appeal)
Cases cited: No cases were cited in the judgment.