Citation: R v Kijurina [2017] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 24 March 2017
Judge(s): Basten JA, Hoeben CJ at CL, Walton J
Background
The offender had been sentenced in the District Court on 28 October 2016 for two offences of supplying a prohibited drug in a commercial quantity, involving methylamphetamine oil. The sentencing judge imposed concurrent terms of imprisonment of two years and 15 months respectively, to be served by way of intensive correction orders (that is, supervised punishment in the community rather than full-time custody).
The Director of Public Prosecutions filed an appeal on 14 December 2016, arguing that those sentences were manifestly inadequate. The matter was listed for hearing on 24 March 2017, with the Crown's written submissions filed just days before.
On the evening before the hearing, the offender's solicitor and barrister withdrew from the case. The reason, confirmed by affidavit, was the offender's inability to secure private funding for his legal representation. An application for legal aid had been made but not yet determined.
Legal Issues
- Whether the hearing of the prosecution sentence appeal should be vacated at very late notice, given the withdrawal of the offender's legal representatives on the eve of the hearing
- How to balance fairness to the offender against the public interest in the expeditious disposal of criminal appeals
Decision
The Court acknowledged that late adjournment applications are strongly discouraged. Vacating a listed matter at short notice not only delays the case at hand but also displaces other matters that could have been heard. The Court noted this concern is heightened where, as here, the matter had been listed for hearing on an expeditious basis, reflecting the public interest in prompt resolution of sentence appeals.
Despite those concerns, the Court held that fairness to the offender was the primary consideration. The offender faced the real prospect of an increased sentence if the Crown's appeal succeeded, making access to legal representation a matter of genuine consequence. Critically, the Court found no suggestion that the adjournment application had been engineered to delay the proceedings.
The Court granted the vacation of the hearing, directing that the matter be relisted promptly. It was explicit that the adjournment was intended to give the offender a reasonable opportunity to obtain representation, not an open-ended delay contingent on representation actually being secured. Counsel who appeared on the adjournment application, Ms Goodwin, was instructed only for that application and not for the appeal itself.
Orders Made
- Vacate the hearing of the appeal listed for 24 March 2017
- Return the matter to the Registrar to fix a new date for hearing of the Director's appeal
- Direct that the matter be listed before the Registrar for call-over on Thursday, 30 March 2017
Key Takeaways
- Late adjournment applications in the Court of Criminal Appeal are strongly discouraged, particularly where a matter has been listed expeditiously in the public interest
- Fairness to an offender who faces the prospect of an increased sentence on a prosecution appeal can justify vacating a hearing, even at very short notice
- A court granting such an adjournment may do so on a limited basis, giving the offender a reasonable opportunity to obtain representation rather than an indefinite stay until representation is confirmed
- Where there is no evidence that the withdrawal of legal representation was manipulated to delay proceedings, that absence of impropriety weighs in favour of granting the adjournment
- Inability to fund private legal representation, combined with a pending legal aid application, formed the basis for the adjournment here, but the Court retained control over the relisting timetable
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text provided.