Citation: [2016] NSWSC 1941
Court: Supreme Court of New South Wales
Date: 1 April 2016
Judge(s): Adamson J
Background
The accused, a former Minister of the Crown, faced a criminal trial listed to commence on 26 April 2016. He had been the subject of adverse corruption findings by the Independent Commission Against Corruption (ICAC) in connection with his conduct as minister. He appeared before the court without legal representation, through a solicitor who had been making repeated unsuccessful applications to the Premier and the Attorney-General of New South Wales for public funding to cover his defence.
On 1 April 2016, the accused filed a notice of motion seeking a stay of proceedings under the principle established in Dietrich v The Queen (1992) 177 CLR 292, which recognises that a court may stay a serious criminal trial where an unrepresented accused cannot obtain legal representation through no fault of their own. The solicitor sought an adjournment of that application to 26 April 2016 to allow further attempts to secure public funding.
The application came before Adamson J, who also dealt with a related application for a non-publication order covering the evidence adduced in support of the stay application.
Legal Issues
- Whether the Dietrich application should be adjourned to 26 April 2016 to allow further attempts to obtain public funding for the accused's legal representation
- Whether a non-publication order should be made in respect of the evidence adduced in support of the application, to prevent prejudice to the proper administration of justice ahead of the imminent trial
Decision
Issue 1: Adjournment of the Dietrich Application
Adamson J accepted that the solicitor held some basis for his hope and expectation that a favourable response to the funding applications might still be forthcoming, and that this provided a foundation for granting a short adjournment (at [4]). However, her Honour was not persuaded there was any real prospect of public funding becoming available, noting that one reason previously cited for refusing funding was the ICAC corruption findings against the accused (at [3]-[4]).
Given the trial's imminence, her Honour declined to adjourn the matter to 26 April 2016 as sought. Instead, she stood the Dietrich application over only to 8 April 2016, to permit the accused to be represented by counsel if he chose and, if necessary, to press the stay application after all avenues for public funding had been exhausted (at [5]-[6]).
Issue 2: Non-Publication Order
Adamson J was satisfied that a non-publication order was necessary to prevent prejudice to the proper administration of justice under the Court Suppression and Non-publication Orders Act 2010 (NSW) (at [7]-[8]). The imminence of the trial and the potential for the proceedings to create prejudice in prospective jurors supported the order (at [8]).
The order made covered all evidence adduced by the accused in support of his application, including the oral evidence of the solicitor. It was made subject to a carve-out permitting the accused, his solicitor, and any other legal representative to disclose the relevant matters to those persons to whom the public funding applications were directed (at [10]).
Orders Made
- The Dietrich application (notice of motion seeking a stay of proceedings) was adjourned to 10:00 am on Friday 8 April 2016
- A non-publication order was made in respect of the evidence adduced by the accused in support of his application, including the oral evidence of his solicitor, subject to a condition permitting disclosure of those matters to persons to whom applications for public funding were made
Key Takeaways
- A court may grant only a short adjournment of a Dietrich application where a trial is imminent, even where the accused's representatives retain some hope of securing public funding, if the court is not satisfied there is any real prospect of such funding becoming available (at [4]-[5]).
- Prior adverse ICAC corruption findings against an accused can form part of the factual context explaining why applications for public funding of a criminal defence have been declined (at [3]).
- Under the Court Suppression and Non-publication Orders Act 2010 (NSW), a non-publication order may be made over evidence adduced in interlocutory proceedings where publication carries a real potential to prejudice prospective jurors ahead of an imminent trial (at [7]-[8]).
- A non-publication order need not be absolute: the Supreme Court here fashioned an order that preserved the accused's ability to continue pursuing funding applications by permitting disclosure to relevant decision-makers (at [10]).
- The decision raises no point of principle; it is a short procedural ruling arising from the specific circumstances of a single case.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases
- Dietrich v The Queen (1992) 177 CLR 292