Citation: Director of Public Prosecutions v Martin (a pseudonym) [2018] NSWCCA 207
Court: Court of Criminal Appeal
Date: 21 September 2018
Judges: Basten JA; Beech-Jones J; Wilson J
Background
The respondent faced four counts of sexual intercourse with a child under the age of 10. On the third day of proceedings, before a jury was empanelled, the trial judge rejected tendency evidence the prosecution sought to rely on. The Director of Public Prosecutions exercised the statutory right under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) to appeal that ruling, on the basis that its exclusion substantially weakened the prosecution case.
The appeal was listed urgently, as the Court's practice requires in interlocutory matters during a pending trial. However, when the matter came before the Court of Criminal Appeal on 21 September 2018, the respondent appeared without legal representation.
Two separate problems had combined to produce that outcome: the Legal Aid Commission had declined to extend funding without a fresh merits advice from new counsel, and trial counsel had declined to travel from the north coast to Sydney unless fees were guaranteed in advance.
Legal Issues
- Whether the hearing of the interlocutory appeal should be adjourned given the respondent's lack of representation
- Whether the Legal Aid Commission's requirement for a separate merits advice before extending a grant to cover resistance to the appeal was justified
- Whether trial counsel's refusal to attend without guaranteed fees constituted a satisfactory professional response in the circumstances
Decision
Basten JA (with whom Beech-Jones J and Wilson J agreed) adjourned the hearing to 5 October 2018. The central reason was that proceeding without counsel would cause significant detriment to the respondent through no fault of his own. The solicitor had acknowledged having insufficient expertise to defend the Director's application adequately, and that explanation was accepted as consistent with the ordinary reason why counsel is briefed to conduct a trial.
The Court was critical of the Legal Aid Commission's position. Basten JA observed that requiring a separate merits advice from new counsel before extending aid to a respondent who had succeeded at first instance and sought to retain that outcome "appears, on its face, to defy rational explanation." The Commission had maintained its stance even after informal communications from the Court's Registrar. Basten JA noted that review of such an extension could reasonably be conducted in-house, or the application treated as a continuation of the existing trial grant.
The Court also addressed trial counsel's conduct. Basten JA noted that counsel briefed for a trial are generally expected to fulfil professional obligations by appearing in related interlocutory proceedings, particularly where the trial would otherwise still be running and where a reasonable expectation exists that the existing legal aid grant would be extended to cover the appeal. The fact that counsel lived on the north coast and faced travel costs was not, in the Court's assessment, an acceptable reason for non-attendance without further inquiry and explanation from counsel directly.
Although the Court acknowledged real costs of adjournment, including further delay for the complainant and inconvenience to the Director, those factors did not outweigh the unfairness of proceeding against an unrepresented respondent. The Court also noted that the Director's application was not obviously hopeless, given the complexity and evolving state of the law on tendency evidence, which reinforced the respondent's entitlement to experienced representation.
Orders Made
- The listing of the hearing of the Director's appeal under s 5F of the Criminal Appeal Act for 21 September 2018 was vacated
- The matter was relisted for hearing on Friday, 5 October 2018
- The Registrar was directed to provide a copy of the reasons to the Director and to the Legal Aid Commission of New South Wales
Key Takeaways
- The Court of Criminal Appeal confirmed that an accused person who succeeds on an interlocutory ruling at trial faces potential unfairness if required to resist a prosecution appeal without counsel, and that adjournment may be warranted in such circumstances even where delay causes real costs to the prosecution and the complainant.
- Requiring a fresh merits advice from new counsel before extending legal aid to cover resistance to an interlocutory prosecution appeal was characterised by Basten JA as difficult to justify rationally, particularly where the accused had already succeeded and sought to preserve that result.
- A general expectation exists that trial counsel will appear in related interlocutory appellate proceedings, especially where the trial is still on foot and where there is a reasonable basis to expect the existing aid grant to be extended.
- The geographic inconvenience of travel from the north coast to Sydney was identified as insufficient, without more, to excuse trial counsel from attending the interlocutory appeal.
- In balancing the adjournment application, the Court weighed harm to the complainant from further delay and disruption to the administration of criminal justice against the potential detriment to an unrepresented respondent, ultimately finding that proceeding without counsel was the more serious unfairness.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Practice Note No SC CCA 1: Court of Criminal Appeal, cl 35 and cl 36
Cases cited: None identified in the judgment text.