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Court of Criminal Appeal 16 July 2012

Miller v DPP

[2012] NSWCCA 278

Fraud & dishonesty

Citation: Miller v DPP [2012] NSWCCA 278
Court: Court of Criminal Appeal, New South Wales
Date: 16 July 2012
Judge(s): Allsop P, Latham J, Davies J

Background

The applicant, an unrepresented accused facing fraud charges in the District Court, sought leave to bring an interlocutory appeal against orders made by Conlon SC DCJ on 21 May 2012. The Crown alleged that the applicant had obtained a $15 million advance from the Uniting Church Trust Association by means of a fraudulent mortgage and had then attempted to convert a bank cheque of $14.5 million into gold coin and bullion.

Before the trial judge, the applicant had filed a wide-ranging Notice of Motion covering matters including the return of seized property, compliance with subpoenas, Freedom of Information requests, a referral to the Attorney General alleging perversion of the course of justice, bail, and vacation of the trial date. Judge Conlon declined to make most of the orders sought and confirmed the trial date.

The applicant then sought leave in the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912 to appeal those rulings. On the morning of the hearing, he also applied orally for an adjournment, seeking a stay of his trial pending the outcome of the application.

  • Whether leave to appeal should be granted under s 5F(3) of the Criminal Appeal Act 1912 against the District Court's pre-trial rulings on the Notice of Motion
  • Whether any error of law or error in the exercise of discretion was demonstrated in Judge Conlon's orders
  • Whether the interests of justice required intervention by the Court of Criminal Appeal at the interlocutory stage
  • Whether the adjournment application and related stay of the trial should be granted

Decision

Latham J, with whom Allsop P and Davies J agreed, refused leave to appeal. The applicant's written submissions did not identify any error in Judge Conlon's reasoning or any error of principle. Instead, the material essentially re-agitated the merits of the applicant's defence to the underlying fraud charges.

Latham J found nothing in the supporting material capable of establishing any failure by the Director of Public Prosecutions in its disclosure obligations, or any unavailability of material relevant to the defence. Latham J also noted that any such deficiency, if it arose at trial, could be raised promptly with the trial judge.

The Court emphasised the distinction between applications for leave to appeal and appeals as of right, citing R v Matovski (1989) 15 NSWLR 720 in support of the proposition that the interlocutory leave threshold requires the interests of justice to call for intervention. As no error of law or discretion had been demonstrated, that threshold was not met.

On the adjournment application, the Court rejected the oral request. It was apparent that the applicant intended to use any adjournment of the appeal as the basis for a further adjournment of the trial. No proper basis for either the adjournment or the associated stay was established.

Orders Made

  • Application for leave to appeal dismissed
  • Application for adjournment refused

Key Takeaways

  • Leave under s 5F(3) of the Criminal Appeal Act 1912 for an interlocutory appeal requires demonstration that the interests of justice call for the Court's intervention; it is not sufficient to re-agitate the merits of a defence.
  • No error of law or error in the exercise of discretion was established on the materials filed, which was fatal to the leave application.
  • The Court of Criminal Appeal confirmed the principle from R v Matovski (1989) 15 NSWLR 720 that the clear procedural distinction between leave applications and appeals as of right must be observed at the interlocutory stage.
  • Under s 5F(6) of the Criminal Appeal Act 1912, refusal of leave to bring an interlocutory appeal does not foreclose a further appeal following any conviction on the same matter.
  • An oral adjournment application made without proper basis, and transparently connected to an attempt to delay a pending trial, will not be granted.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F(3), 5F(6)
- Freedom of Information Act 1989 (NSW)
- Police Act 1990 (NSW), s 170

Cases
- R v Matovski (1989) 15 NSWLR 720