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Court of Criminal Appeal 9 May 2011

PFC v R, R v PFC

[2011] NSWCCA 130

Sexual offencesPublic order & justice offences

Citation: PFC v R, R v PFC [2011] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 9 May 2011
Judges: Allsop P, Hoeben J, Hall J

Background

The appellant, who was self-represented on appeal, had been convicted in the District Court following a six-week trial on numerous serious charges involving sexual conduct with multiple teenage boys, along with charges of intending to pervert the course of justice. He received a non-parole period of ten years. The Crown also brought a sentence appeal, which the Court heard separately and reserved for decision.

On appeal, the appellant raised substantial complaints about the conduct of his trial counsel and solicitor, alleging they refused to follow his instructions and demonstrated a level of incompetence sufficient to constitute a miscarriage of justice. He filed over 750 pages of submissions, annexures, and affidavits in support of those complaints.

The Court convened to determine how the appeal should proceed. The barrister and solicitor from the original trial attended court pursuant to subpoenas issued by the appellant, who sought to cross-examine them. The Crown had taken the position that affidavit material from those practitioners would not be published, and neither had been asked to prepare any response to the appellant's complaints.

  • Whether the appellant's former counsel and solicitor should be cross-examined by the appellant at this stage of the appeal proceedings, without having first been given an opportunity to address the complaints against them in affidavit form.
  • What procedural framework was needed to manage an appeal involving extensive, serious allegations of trial counsel incompetence submitted by an unrepresented appellant.
  • What obligations the Crown had to assist the Court in analysing the appellant's complaints and proposed fresh evidence.

Decision

The Court declined to permit cross-examination of the barrister and solicitor at this stage. Allsop P, with whom Hoeben J and Hall J agreed, held that it would be plainly unfair to subject the two practitioners to wide-ranging oral examination about their professional conduct of two years prior when neither had been asked to address the appellant's specific complaints. The Court also found it would produce less reliable evidence than evidence given in affidavit form after considered reflection.

The Court expressed concern about the adequacy of the Crown's preparation for the appeal. Despite the Crown filing eleven pages of submissions, Allsop P observed it was regrettable that no written analysis of the 750-page tender bundle had been provided, and that the Crown had not taken steps to obtain affidavit responses from the appellant's former legal representatives. The Court made clear it required greater assistance from experienced Crown counsel to properly grapple with the substance of the complaints.

The Court also directed that the appellant, while acknowledging the difficulties he faced as an unrepresented person in custody, needed to produce a more concise summary of his complaints. The existing 750 pages were considered insufficiently organised to allow the Court or the Crown to identify his precise grounds with clarity. Hall J added that precise identification of grounds would also assist the appellant's own application for leave to adduce fresh evidence.

Orders Made

  • The appellant to file, by 23 May 2011: (a) a summary of no more than five pages identifying topics for proposed examination of the barrister and solicitor; and (b) a statement of no more than five pages setting out the bases for leave to adduce fresh evidence and identifying the nature and significance of that evidence.
  • The Crown to file and serve affidavits from the barrister (Mr Webb) and solicitor (Mr Roff) by 10 June 2011.
  • The Crown to file and serve, by 23 May 2011, a paginated tender bundle with a written analysis addressing relevant instructions, decisions and conduct of trial counsel, and documents concerning the appellant's fitness for trial (including Dr Allnut's reports).
  • The appeal to be listed before the Registrar on 16 June 2011 to review compliance with directions and set a two-day special fixture before Allsop P, Hoeben J, and Hall J.

Key Takeaways

  • Where an unrepresented appellant raises serious allegations of trial counsel incompetence in a conviction appeal, the Court of Criminal Appeal will not permit immediate cross-examination of the practitioners concerned without first giving them an opportunity to respond to the specific complaints by affidavit.
  • The interests of procedural fairness to third-party witnesses, the interests of the appellant, and the due administration of justice all support obtaining affidavit evidence before oral examination in cases of this complexity.
  • An unrepresented appellant's submission of voluminous, disorganised materials does not discharge the obligation to assist the Court by presenting complaints with sufficient clarity and concision, even where difficulties of preparing an appeal from custody are acknowledged.
  • The Crown carries an obligation to provide the appellate court with substantive analytical assistance where serious allegations of professional misconduct are raised, extending beyond high-level submissions and to engagement with the underlying evidentiary materials.
  • Leave to adduce fresh evidence on a conviction appeal remains a separate threshold requiring precise identification of grounds, and the Court of Criminal Appeal noted that precision would serve the appellant's own interests in that application.

Legislation and Cases Referenced

No specific legislation or cases were identified in the text of the judgment or in the metadata provided.