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Court of Criminal Appeal 10 August 2011

Miller v R

[2011] NSWCCA 195

Fraud & dishonesty
CRIMINAL APPEAL APPEAL TO LEGAL AID NOT BONA FIDE LEAVE TO APPEAL DENIED.

Citation: Miller v R [2011] NSWCCA 195
Court: Court of Criminal Appeal, NSW
Date: 10 August 2011
Judge(s): McClellan CJ at CL, Adams J, Fullerton J

Background

The applicant faced 22 charges in the Local Court, including 21 counts of using a false instrument and one count of obtaining a benefit by deception, relating to conduct allegedly occurring in 2005 and 2006. Committal proceedings were conducted before a magistrate, during which nine witnesses gave oral evidence pursuant to a consent order under s 91 of the Criminal Procedure Act 1986 (NSW). Section 91 allows a magistrate to direct that witnesses attend and give evidence at committal proceedings.

On the final day of the committal hearing, counsel for the applicant sought orders under s 91 to widen the scope of cross-examination and to compel the attendance of additional witnesses. The magistrate indicated he would refuse that application, and also refused a subsequent adjournment request. The applicant was committed for trial in the District Court.

The applicant then sought leave to appeal to the Court of Criminal Appeal against the magistrate's refusal, filing the application twelve days outside the 14-day time limit prescribed by the Criminal Appeal Rules. He appeared in person at the hearing.

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F(3)(a) of the Criminal Appeal Act 1912 to entertain an appeal against a magistrate's refusal to make orders under s 91 of the Criminal Procedure Act 1986 (NSW).
  • Whether the applicant's appeal to the Legal Aid Commission against the denial of legal aid was bona fide, triggering the mandatory adjournment obligation under s 57 of the Legal Aid Commission Act 1979 (NSW).
  • Whether leave to appeal should in any event be granted.

Decision

Jurisdiction. The Court held that it had no jurisdiction to entertain the application. Relying on R v Colby (1995) 84 A Crim R 125, McClellan CJ at CL concluded that a magistrate's decision under s 91 (and its predecessor, s 48EA of the Justices Act) is not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912. It is a ruling on an application for a direction, and therefore falls outside the scope of the appeal provision.

Adjournment for legal aid appeal. The applicant sought an adjournment on the basis that he had lodged an appeal with the Legal Aid Commission against the refusal of legal aid. Under s 57 of the Legal Aid Commission Act 1979, a court must adjourn proceedings when a legal aid appeal is pending, but only if satisfied that the appeal is bona fide and not frivolous, vexatious, or intended to improperly delay proceedings. The court noted that the Commission had been advised there was no jurisdiction for the underlying application. Because the applicant was aware of that advice and his submissions did not demonstrate any genuine belief the appeal would succeed, the court was not satisfied the legal aid appeal was bona fide. The adjournment was refused.

Leave in any event. Even setting aside the jurisdictional bar, the court indicated leave should still be refused. McClellan CJ at CL observed that if further witnesses needed to be examined before trial in the interests of justice, the trial judge in the District Court could order a so-called "Basha inquiry" (a pre-trial examination of prospective witnesses). That avenue was available to address any legitimate grievance the applicant had about the committal process. Adams J added that the adjournment application before the magistrate had been made without any stated ground or basis, making the magistrate's refusal both proper and inevitable.

Orders Made

  • Leave to appeal refused.
  • Application dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed it has no jurisdiction under s 5F of the Criminal Appeal Act 1912 to entertain an appeal against a magistrate's refusal to make orders under s 91 of the Criminal Procedure Act 1986 (NSW). Such a refusal is not an interlocutory judgment or order; it is a ruling on an application for a direction.
  • Under s 57 of the Legal Aid Commission Act 1979 (NSW), the mandatory adjournment obligation for pending legal aid appeals only applies where the court is satisfied the appeal is bona fide. An appeal lodged in the knowledge that the underlying claim has no jurisdictional foundation is unlikely to meet that threshold.
  • A Basha inquiry in the District Court represents an available avenue to address complaints about witnesses who were not examined at committal, making the denial of a separate appeal on the committal ruling less likely to cause injustice.
  • Applications for leave to appeal filed outside the 14-day time limit set by the Criminal Appeal Rules begin from a position of procedural disadvantage, compounding any substantive deficiencies in the underlying application.
  • R v Colby (1995) 84 A Crim R 125 remains the controlling authority on the non-appealability of magistrates' rulings made under the predecessor to s 91 of the Criminal Procedure Act, and the Court of Criminal Appeal applied that reasoning to the current provision.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Appeal Rules (NSW), reg 5B
- Criminal Procedure Act 1986 (NSW), s 91
- Crimes Act 1900 (NSW), ss 300(2), 178BA(1)
- Legal Aid Commission Act 1979 (NSW), s 57
- Justices Act (NSW), s 48EA (predecessor to s 91)

Cases:
- R v Colby (1995) 84 A Crim R 125
- R v Basha (1989) 39 A Crim R 337