Citation: Weldon v R (No 2) [2019] NSWCCA 206
Court: Court of Criminal Appeal, New South Wales
Date: 7 August 2019
Judges: Bathurst CJ (with Garling J and Wright J agreeing)
Background
The applicant was a sentenced prisoner seeking leave to appeal against his sentence in the Court of Criminal Appeal. On the day the application was listed for hearing, the court refused an application for an adjournment.
Following that refusal, the applicant's solicitor withdrew from the proceedings. The applicant then indicated to the bench that he did not have sufficient funds to prosecute the appeal himself and wished to participate in a work release program to save the money needed to do so.
The court was left to determine how to deal with the application in circumstances where the applicant was unrepresented and unable to proceed.
Legal Issues
- Whether the application for leave to appeal should be dismissed given the applicant's inability to proceed after his solicitor withdrew
- Whether, and on what basis, the applicant could make a further application for leave to appeal at a later time
- Whether the events of the hearing would affect the applicant's eligibility for a work release program
Decision
Bathurst CJ, with Garling J and Wright J agreeing, dismissed the application for leave to appeal. The court found this was the appropriate course given the applicant had no funds and was unable to prosecute the appeal on the day of hearing.
Critically, the court clarified that dismissal of the application does not permanently foreclose the matter. The applicant retains the ability to bring a fresh application for leave to appeal, coupled with an application for an extension of time. Any such future application would be assessed in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601, particularly at paragraphs [32] to [33], which address the relevant considerations for granting extensions of time in criminal appeals.
The court also noted that the events of the hearing should not affect the applicant's eligibility for a work release program, provided he is otherwise eligible. This observation appears to have been made to avoid any unintended prejudice flowing from the procedural outcome.
Orders Made
- The application for leave to appeal was dismissed.
Key Takeaways
- Dismissal of an application for leave to appeal does not necessarily bar a fresh application. The Court of Criminal Appeal confirmed that a dismissed applicant may still seek leave afresh, accompanied by an application for an extension of time.
- Any future application of this kind will be assessed against the principles set out in Kentwell v The Queen (2014) 252 CLR 601, particularly the considerations at [32] to [33] regarding extensions of time.
- Where a fresh application is made after a prior dismissal for funding reasons, evidence explaining the applicant's financial circumstances at the time of the original hearing, and how those circumstances changed, will be relevant to the court's assessment.
- The Court of Criminal Appeal indicated that procedural outcomes of this nature should not adversely affect a prisoner's eligibility for a work release program, where eligibility otherwise exists.
- In dismissing the application, the court proceeded on the basis that the applicant could not be required to prosecute the appeal without funds or legal representation after his solicitor withdrew following the refused adjournment.
Legislation and Cases Referenced
Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Legislation:
- No legislation was cited in this decision.