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Court of Criminal Appeal 7 August 2019

Weldon v R

[2019] NSWCCA 205

Drugs
CRIMINAL PROCEDURE APPEALS SENTENCE APPEAL ADJOURNMENT COUNSEL WITHDRAWN APPLICATION REFUSED.

Citation: Weldon v R [2019] NSWCCA 205
Court: New South Wales Court of Criminal Appeal
Date: 7 August 2019
Judge(s): Bathurst CJ; Garling J; Wright J

Background

The applicant had been sentenced in June 2018 to an aggregate term of six years imprisonment, with a non-parole period of four years, for two offences of supplying a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW). He filed a notice seeking leave to appeal against that sentence in April 2019, with the appeal listed for hearing on 7 August 2019.

Two days before the scheduled hearing, the applicant filed a notice of motion to vacate the hearing date and adjourn the application. The stated basis was that he had run out of funds to finance the appeal, causing his counsel to withdraw.

The Crown neither opposed nor supported the adjournment, indicating it would submit to any order the Court made.

  • Whether the adjournment application was supported by sufficient explanation and evidence to justify vacating the scheduled hearing date.

Decision

The application for adjournment was supported by an affidavit from a solicitor employed by the applicant's solicitor. The affidavit deposed that the applicant had insufficient funds to proceed, that unnamed persons who had promised to assist had become unable to do so "in time," and that those same unnamed persons had advised the funding issue would be resolved by October 2019.

Bathurst CJ found the affidavit fell well short of what was required. It offered no real explanation for why the promised funds had not materialised, identified no one by name, and provided no genuine assurance that funding would actually be available by October 2019. Relying on an unattributed assertion from unnamed people was not a sufficient basis on which to grant an adjournment.

The Chief Justice also observed that the Court of Criminal Appeal carries a heavy caseload of matters brought by incarcerated persons seeking to challenge their convictions or sentences. Granting adjournments of this nature without proper justification imposes administrative burdens on the Court and causes injustice to other applicants whose appeals are delayed as a result. All three judges agreed the application should be refused.

Orders Made

• The application to vacate the hearing date and adjourn the appeal is refused.

Key Takeaways

  • An adjournment application based solely on unexplained withdrawal of funds from unnamed third parties, coupled with an unverified assertion that the problem will resolve by a future date, is insufficient to justify vacating a scheduled hearing.
  • The Court of Criminal Appeal confirmed that granting poorly supported adjournments causes two distinct harms: it disrupts court administration and delays justice for other incarcerated applicants with pending appeals.
  • Where counsel has withdrawn due to a funding shortfall, an applicant must provide proper supporting evidence explaining the circumstances, not merely a vague assertion about future resolution.
  • The two-day notice period for the motion, and the week's advance warning given informally, were noted as part of the unsatisfactory circumstances surrounding the application.
  • The Crown's position of submitting to any order did not, of itself, strengthen the applicant's case; the adequacy of the explanation remained the central consideration.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases cited:
- Nil