Citation: Cranston v R [2020] NSWCCA 143
Court: Court of Criminal Appeal, NSW
Date: 30 June 2020
Judge(s): Johnson J (at [1]), Wilson J (at [76]), N Adams J (at [78])
Background
The applicant faced charges of conspiracy to dishonestly cause a loss to the Commonwealth and conspiracy to deal with proceeds of crime exceeding $1 million, contrary to the Criminal Code (Cth). His trial, alongside three alleged co-conspirators, was listed to commence on 10 August 2020, with a four-month estimate. The matter involved complex fraud and money laundering allegations.
Before the primary judge (Beech-Jones J), the applicant applied for a stay of proceedings on the basis that he was unrepresented and unable to fund his defence. This type of application, known as a Dietrich application, can result in a stay of a criminal trial where an accused is indigent and unable to obtain legal representation through no fault of their own. Beech-Jones J dismissed that application, finding the applicant had not established indigence.
The applicant then sought leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW), which permits interlocutory appeals in criminal proceedings. He also required an extension of time, as he had been unrepresented and was unaware of the 14-day filing deadline. The Crown did not oppose the extension.
Legal Issues
- Whether the applicant had established that he was indigent for the purposes of a Dietrich stay application
- Whether the primary judge erred in finding that indigence had not been demonstrated
- Whether the interests of justice warranted the grant of leave to appeal under s 5F
- Whether the hearing should be adjourned to allow senior counsel to appear for the applicant
Decision
The Court of Criminal Appeal refused the adjournment application. The appeal had been given a special fixture at short notice, the Court had already read the materials, and no advance notice of the adjournment request had been given. The applicant's solicitor had only been retained on the last working day before the hearing. Despite this, the solicitor who appeared made focused submissions that adequately protected the applicant's interests.
On the substantive ground of appeal, the applicant argued only that the primary judge had erred in finding he was not indigent. To succeed, the applicant needed to demonstrate error in accordance with the principles in House v The King, which requires more than mere disagreement with the result. The Court found no such error. N Adams J noted that while the indigence finding was one on which judicial minds might reasonably have differed, no specific error in Beech-Jones J's reasoning was established.
Leave to appeal was nonetheless granted, primarily because the interests of justice warranted it. Johnson J observed that assets belonging to the applicant had been restrained under the Proceeds of Crime Act 2002 (Cth), and that Act contains no mechanism permitting the release of restrained funds to enable an accused to fund their legal representation. This stands in contrast to the NSW Criminal Assets Recovery Act 1990, which expressly provides for the release of restrained or forfeited assets for defence funding purposes.
All three judges expressed concern about this gap in the Commonwealth legislative framework. Johnson J noted that its practical consequence is that a well-resourced and legally represented prosecution may face an unrepresented accused at a complex trial, in circumstances where the court declines a Dietrich stay because the indigence threshold has not been met under general principles. Despite this concern, the court was clear that the legislative gap was a matter for the Commonwealth Parliament to address, and the appeal was dismissed.
Orders Made
- Extension of time granted to the applicant to seek leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW), until 10 June 2020
- Leave to appeal granted under s 5F(3)
- Appeal dismissed
Key Takeaways
- A Dietrich stay requires an accused to prove indigence on the balance of probabilities. Where an applicant fails to provide sufficient detail of their financial circumstances, the court may be left unsatisfied that the onus has been discharged.
- No error was established in the primary judge's indigence finding, even though N Adams J acknowledged the finding was one on which judicial minds might reasonably have differed.
- The Court of Criminal Appeal confirmed that leave under s 5F may be granted on interests-of-justice grounds even where the decision under appeal is not found to be in error.
- Under the Proceeds of Crime Act 2002 (Cth), there is no provision permitting the release of restrained assets to fund an accused's legal defence. This contrasts directly with the NSW Criminal Assets Recovery Act 1990, which does permit such releases.
- In dismissing the appeal, all three judges flagged the potential for procedural unfairness at complex trials where the Commonwealth asset-restraint regime prevents an accused from accessing funds to retain representation, yet a Dietrich stay is unavailable on the facts.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Appeal Rules (NSW), r 5B
- Criminal Code (Cth), ss 135.4(3), 11.5(1), 400.3(1)
- Proceeds of Crime Act 2002 (Cth)
- Criminal Assets Recovery Act 1990 (NSW)
Cases:
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- State of New South Wales v Canellis (1994) 181 CLR 309; [1994] HCA 51
- Calleija v R (2012) 233 A Crim R 391; [2012] NSWCCA 37
- Munshizada v R [2020] NSWCCA 9
- R v Cranston [2020] NSWSC 469
- R v Macdonald (No. 4) [2016] NSWSC 486
- Steffan v R (1993) 30 NSWLR 633
- R v Matovski (1989) 15 NSWLR 720
- R v Cox [1999] NSWCCA 229
- TS v R [2014] NSWCCA 174