Citation: R v Nour (No 3) [2017] NSWDC 392
Court: District Court of New South Wales
Date: 10 July 2017
Judge(s): Neilson DCJ
Background
The accused faced serious charges including aggravated kidnapping, with a maximum penalty of 20 years' imprisonment. The prosecution also alleged the accused assaulted his former de facto partner, who was said to have suffered bilateral frontal subdural haematomata. The trial had already been adjourned on multiple occasions before the events of the current application.
Shortly before trial, the accused withdrew instructions from his legal representatives at approximately 1.30am on 28 June 2017, apparently after losing confidence in his barrister following negotiations to shorten the proceedings. As a result, the accused had been largely self-represented during the trial's early stages. He lodged an application with the Legal Aid Review Committee on 6 July 2017 to have the cancellation of his legal aid grant reviewed.
By 10 July 2017, the application had not yet been determined. Counsel appearing for the accused sought a further adjournment to allow that review to be completed and, if successful, for new legal representatives to prepare for trial.
Legal Issues
- Whether the accused's application to the Legal Aid Review Committee was bona fide and not intended to improperly delay the proceedings, as required by section 57 of the Legal Aid Commission Act 1979.
- Whether any special circumstances existed that would prevent the court from granting the adjournment contemplated by section 57.
- How to balance the interests of the accused against those of the Crown and the complainant, particularly in light of the delays already experienced.
Decision
Issue 1: Bona fides of the Legal Aid Review application
The court accepted that the application to the Legal Aid Review Committee was made in good faith and was not frivolous or vexatious (at [15]). It was not frivolous given the gravity of the main charge, which carried a maximum sentence of 20 years' imprisonment. The court noted no evidence of any prior application to the Committee for restoration of legal aid (at [15]).
Issue 2: Whether the application was made to improperly delay proceedings
The court found that, although the events from 26 June 2017 had caused delay, they were not driven by an improper or base motive (at [18]). The accused's loss of confidence in his barrister arose from the negotiations to shorten the trial, which he ultimately refused to accept. The court was satisfied the accused genuinely wanted legal representation to present his defence (at [18]).
Issue 3: The accused's capacity to self-represent
The court gave considerable weight to the accused's personal circumstances. He had a diagnosed schizophrenic illness complicated by substance use disorder and an antisocial personality, and his cognition could be affected by that illness (at [8]-[9]). He was not well educated and would find the demands of self-representation daunting (at [10]). During trial, he had struggled to prepare cross-examination questions and appeared unable to cope on 4 July 2017 (at [11]).
Issue 4: Special circumstances and the interests of the complainant
The court acknowledged the complainant's distress at further delay and the fact that trial had already been adjourned several times since it was first listed in October 2016 (at [19]). However, the court was not persuaded that special circumstances existed to prevent the adjournment. The complainant's evidence-in-chief had been recorded and could be replayed at a new trial under section 306I of the Criminal Procedure Act 1986, preserving its contemporaneity (at [20]). The other witnesses' evidence was limited in scope and largely duplicated in contemporaneous triple-zero call records (at [21]). The court also noted that a delay of three to three and a half years is not exceptional in the context of prescribed sexual offences (at [22]). The court concluded there were no special circumstances to prevent granting the adjournment mandated by section 57 (at [22]).
Orders Made
- Adjournment granted.
Key Takeaways
- Under section 57 of the Legal Aid Commission Act 1979, a court must consider whether a legal aid review application is bona fide and not made to improperly delay proceedings, and whether special circumstances prevent an adjournment being granted to allow that review to be pursued (at [3], [15]).
- A legal aid review application is not frivolous merely because it is made during a trial, particularly where the accused faces a serious charge carrying a maximum penalty of 20 years' imprisonment (at [15]).
- An accused's mental health, limited education, and demonstrated difficulty managing self-representation are relevant considerations when the court weighs the interests of justice in an adjournment application (at [8]-[10]).
- Where a complainant's evidence-in-chief has been recorded as part of a prescribed sexual offence trial, section 306I of the Criminal Procedure Act 1986 permits that evidence to be replayed at a fresh trial, which may reduce the weight of delay-related prejudice to the prosecution (at [20]).
- A delay of three to three and a half years is not, of itself, an untold delay in prescribed sexual offence proceedings, and does not necessarily constitute a special circumstance sufficient to prevent an adjournment under section 57 (at [22]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Legal Aid Commission Act 1979
Cases
- Dietrich v The Queen [1999] HCA 57; (1992) 177 CLR 292
- McInnes v The Queen [1979] HCA 65; (1979) 149 CLR 575