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Supreme Court 22 May 2015

R v Pratten (No 17)

[2015] NSWSC 642

Fraud & dishonesty
CRIMINAL LAW ACCUSED WITHOUT LEGAL REPRESENTATION RESOLUTION OF PRE TRIAL ISSUES FAIRNESS TO THE ACCUSED

Citation: R v Pratten (No 17) [2015] NSWSC 642
Court: Supreme Court of New South Wales
Date: 22 May 2015
Judge: Rothman J

Background

The accused faced a retrial on charges relating to the alleged failure to declare income, following an earlier trial, appeal, and a collateral civil proceeding challenging the prosecution. By the time of this application, the accused had lost his legal representation and was appearing unrepresented from the dock.

The retrial had already been adjourned once, from 18 May 2015 to 1 June 2015, to allow the accused's then-lawyers additional preparation time. When those lawyers ceased to act, the accused applied for an indefinite adjournment of the jury empanelment and the commencement of the trial.

The accused argued he needed more time to prepare, that several pre-trial evidentiary issues remained unresolved, and that he could not fairly conduct the trial without legal representation.

  • Whether an indefinite adjournment of the trial was warranted given the accused's lack of legal representation and stated unpreparedness
  • Whether three specific pre-trial issues (admissibility of amended tax assessments, the "container issue" relating to seized documents, and the relevance of proposed Crown expert evidence) required resolution before empanelment
  • Whether the accused's claimed impecuniosity supported the application
  • Whether a limited adjournment with a fixed date was appropriate instead

Decision

Rothman J refused the indefinite adjournment but granted a two-week adjournment to 15 June 2015. The court found that the accused had been deeply involved in the first trial, the appeal, and the collateral civil proceedings, and had therefore demonstrated considerable familiarity with the evidence and the nature of the case against him. His own submissions from the dock, including references to expert evidence from the first trial and his ability to locate Crown submissions on his computer, confirmed a meaningful level of preparedness.

On the three specific pre-trial issues, the court was satisfied that none required an indefinite delay. The Crown's statement that it would not tender the amended tax assessments resolved the first issue. The container material appeared to be held by the Vanuatu Government and unavailable to either party. The expert evidence challenge could be addressed either before empanelment or during trial on a voir dire, and the period between the hearing date and 1 June 2015 remained available for any outstanding preliminary applications.

The court addressed the fairness principle by reference to Deane J's remarks in Sullivan v Department of Transport, drawing a clear distinction between a tribunal's duty to give a party a reasonable opportunity to present a case, and any supposed obligation to ensure the party takes the best advantage of that opportunity. The court found that ample opportunity had already been available and that any failure to use it could not be remedied by the court.

On the question of Legal Aid, Rothman J expressed concern that the Crown's suggestion that Legal Aid would be withdrawn should not necessarily follow from the change in representation. The court indicated that Legal Aid ought to remain in place to cover defence expert evidence and, if new solicitors and counsel could be secured, to fund fresh representation, noting that a fair trial is best served by the accused having legal assistance.

Orders Made

  • The application for an indefinite adjournment was refused.
  • A two-week adjournment was granted, moving the commencement of jury empanelment and the trial to 15 June 2015.

Key Takeaways

  • A court's duty to ensure a fair trial requires giving a party a reasonable opportunity to present their case, but does not extend to ensuring they take the best advantage of that opportunity, as confirmed by reference to Deane J in Sullivan v Department of Transport.
  • Where an accused has been actively involved in prior proceedings concerning the same subject matter, that involvement is relevant to assessing the degree of preparedness and the weight of an adjournment application.
  • An indefinite adjournment will not be granted simply because the accused is unrepresented, particularly where substantial time has already been available for preparation since a retrial was ordered.
  • Pre-trial evidentiary issues that can be resolved within the existing interlocutory period, or dealt with during trial by way of voir dire, do not of themselves justify postponing the commencement of a jury trial.
  • The Supreme Court expressed the view that Legal Aid grants should not automatically be withdrawn following a breakdown in the lawyer-client relationship, particularly where representation is preferable to ensure a fair trial.

Legislation and Cases Referenced

Cases:
- Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
- RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
- Sullivan v Department of Transport (1978) 20 ALR 323

Legislation: No specific legislation was cited in the text of this judgment.