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Court of Criminal Appeal 23 February 2009

Bagshaw v R

[2009] NSWCCA 32

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE THREE JUDGES MADE VARIOUS ORDERS NO MERIT IN CHALLENGES NO PARTICULAR POINT OF PRINCIPLE

Citation: Bagshaw v R [2009] NSWCCA 32
Court: Court of Criminal Appeal, New South Wales
Date: 23 February 2009
Judge(s): Grove J, Hall J, Latham J

Background

The applicant faced seven charges under the Bankruptcy Act 1966, arising from allegations that he entered various agreements to obtain goods, services or credit between 1995 and 1999 without disclosing an existing bankruptcy. He failed to appear for his scheduled 2006 trial and was arrested in Queensland in March 2008 before being remanded to New South Wales.

After his arrest, the applicant pleaded guilty to four counts and not guilty to three. He subsequently sought to withdraw his guilty pleas, was refused, and then proceeded to represent himself for the balance of the proceedings. Three separate District Court judges made various interlocutory rulings against him across late 2008.

The applicant brought three applications for leave to appeal each of those interlocutory rulings to the Court of Criminal Appeal, relying on s 5F of the Criminal Appeal Act 1912. He appeared in person on all three applications.

  • Whether leave to appeal should be granted under s 5F of the Criminal Appeal Act 1912 in respect of three separate interlocutory rulings made by District Court judges
  • Whether Puckeridge DCJ erred in refusing to remove prosecution counsel and in adjourning the trial
  • Whether Syme A/DCJ erred in refusing to allow the applicant to withdraw his guilty pleas
  • Whether Blanch J erred in refusing to release bail money and in declining to vacate the trial date

Decision

Grove J (with whom Hall J and Latham J agreed) began by noting the limits of the s 5F jurisdiction. Leave to appeal against interlocutory orders is not readily granted, and ordinarily a factual error alone does not satisfy the requirements for leave, as confirmed in R v Matovski (1989) 15 NSWLR 720.

On the application concerning Puckeridge DCJ, the court found no error. His Honour had adjourned the trial to allow the applicant to obtain advice about whether the Criminal Code applied to the charges. The court noted the Code did not, in fact, apply, since the relevant amendment commenced on 4 May 2001 and the latest alleged offending was in 1999. The applicant's complaint about prosecution counsel was also rejected: even accepting the applicant's account of the words spoken, they did not constitute grounds for removing counsel.

The application concerning Syme A/DCJ's refusal to permit withdrawal of the guilty pleas was similarly dismissed. The court found no arguable basis for disturbing that ruling. On the third application, the court noted that a challenge to a bail variation decision does not fall within the s 5F jurisdiction at all, and there was no identifiable error in Blanch J's refusal to vacate the trial date.

Grove J commented that he had reproduced the applicant's written submissions in full so that the absence of merit would be clear from the material itself. He noted that nothing in the submissions justified the intemperate language directed at judges and prosecution counsel, though he declined to address each aspersion in detail.

Orders Made

  • Leave to appeal refused in each of the three applications

Key Takeaways

  • Section 5F of the Criminal Appeal Act 1912 confers a limited interlocutory appeal jurisdiction: a factual error alone is generally insufficient to warrant a grant of leave.
  • The Criminal Code (as applied to Bankruptcy Act offences by the 2001 amending legislation) only applied from 4 May 2001; charges relating to conduct prior to that date are unaffected by the Code's additional fault elements.
  • Adverse remarks allegedly made by prosecution counsel, even if accepted as stated, do not automatically provide grounds for removing that counsel from the proceedings.
  • A challenge to a bail variation decision does not fall within the s 5F appellate jurisdiction and cannot be agitated by that route.
  • In dismissing all three applications, the Court of Criminal Appeal confirmed that the absence of merit was evident on the face of the material filed, notwithstanding the volume and forcefulness of the applicant's self-represented submissions.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Bankruptcy Act 1966 (Cth), s 269(1)(ac)
- Evidence Act 1995
- Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)

Cases
- R v Matovski (1989) 15 NSWLR 720
- Makita (Australia) Pty Ltd v Sprowles (2000) 52 NSWLR 705
- R v Nanai [2000] NSWCCA 204