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Court of Criminal Appeal 10 March 2020

Haddad v R

[2020] NSWCCA 37

Public order & justice offences
CRIMINAL PROCEDURE STAY OF PROCEEDINGS LACK OF LEGAL REPRESENTATION STAY REFUSED BY DISTRICT COURT WHERE PREVIOUS COUNSEL HAD WITHDRAWN WHERE APPLICANT NOT IMPECUNIOUS

Citation: Haddad v R [2020] NSWCCA 37
Court: Court of Criminal Appeal, New South Wales
Date: 10 March 2020
Judges: Meagher JA, Harrison J, Button J

Background

The applicant faced charges of conspiracy to import a commercial quantity of safrole (a border controlled precursor used to manufacture controlled drugs) contrary to the Criminal Code (Cth). He had been charged since September 2011, with the current charge laid in April 2015. The trial had been listed and vacated on multiple occasions, and by early 2020 it was finally fixed to commence on 2 March 2020 before King SC DCJ in the District Court.

In January 2020, the applicant's barristers withdrew after he missed a payment of $50,000 on account of fees for a potential appeal from an adverse stay ruling. His solicitor later withdrew citing health reasons. On 24 February 2020, just days before the scheduled trial, the applicant applied to vacate the trial date on the basis that he no longer had legal representation. King SC DCJ refused that application on 26 February 2020.

The applicant then sought leave under s 5F of the Criminal Appeal Act 1912 (NSW) to appeal that refusal. A temporary stay was granted by the Court of Criminal Appeal on 28 February 2020 to allow the application to be heard. On 6 March 2020, the Court granted leave to appeal but dismissed the appeal, permitting the trial to proceed.

  • Whether the District Court judge erred in the exercise of his discretion to refuse an adjournment of a criminal trial where the accused lacked legal representation.
  • Whether the trial judge wrongly attributed fault to the applicant for his unrepresented status, given the solicitor's withdrawal on health grounds and the absence of evidence about non-payment relating to trial (as opposed to appeal) costs.
  • Whether the trial judge failed to account for the applicant's mental health when assessing the fairness of proceeding without representation.
  • Whether the trial judge erred in finding that witness memories would fade with further delay, in the absence of specific evidence.
  • Whether the trial judge should have considered a brief adjournment to allow the applicant to secure new representation.
  • Whether the overall decision not to vacate the trial was unreasonable in all the circumstances.

Decision

The Court of Criminal Appeal applied the well-established principles from House v The King (1936) in reviewing the discretionary refusal. Appellate intervention is only warranted where a judge acts on a wrong principle, takes into account irrelevant matters, mistakes the facts, overlooks a material consideration, or produces a result that is unreasonable or plainly unjust.

On the question of fault, the Court accepted that the solicitor's withdrawal was for health reasons. However, it found that the applicant's loss of counsel was attributable at least in part to his own failure to meet a payment deadline. More significantly, the applicant had not established that he had taken all reasonable steps to secure alternative representation in the approximately six weeks between losing his barristers and the trial date. The evidence did not reveal what efforts, if any, were actually made to obtain other counsel.

The Court admitted fresh psychiatric evidence from Dr Stephen Allnutt, who expressed the opinion that the applicant, in his then-current emotional state, was unfit to represent himself and may have been unfit to stand trial in the short to medium term. The Court noted, however, that the question of fitness to stand trial was a matter for the District Court to determine before proceeding with the trial. That issue did not provide a basis for the Court of Criminal Appeal to disturb the discretionary refusal of the adjournment.

Each specific ground of appeal was considered and rejected. The trial judge's references to witness memory were seen as a justified inference given the events in question dated back almost a decade. The absence of a discrete application for a "brief" adjournment meant that ground was not properly raised below. The finding that it was in the applicant's interests to proceed was read in context, referring to the prejudice caused by over eight years of delay since the original charge.

Orders Made

  • Leave to appeal the District Court order of 26 February 2020 granted.
  • Appeal dismissed.
  • Temporary stay orders made on 28 February 2020 discharged.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a refusal to adjourn criminal proceedings is a discretionary decision reviewable only on the narrow grounds established in House v The King: acting on a wrong principle, taking into account irrelevant matters, mistaking the facts, omitting a material consideration, or producing an unreasonably unjust result.
  • An applicant who loses legal representation due at least partly to non-payment of fees, and who cannot demonstrate that reasonable steps were taken to secure alternative representation in the available time, faces a high threshold in seeking to vacate a long-standing trial date on that basis.
  • Fresh psychiatric evidence about an applicant's fitness to stand trial does not, of itself, enliven the Court of Criminal Appeal's discretion to stay proceedings. The Court confirmed that fitness to stand trial remained a matter for the District Court to address before the trial continued.
  • Significant and unexplained delay in criminal proceedings weighs against further adjournment. In this case, more than eight years had elapsed since the applicant was first charged, and the trial date had already been listed and vacated on multiple prior occasions.
  • Where no discrete application was made to the trial judge for a shorter, defined adjournment, an appellate ground asserting failure to consider such an option is unlikely to succeed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Code (Cth), ss 11.5, 307.11(1)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 10

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Croke v R [2020] NSWCCA 8
- Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
- Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
- Jones v R (1997) 191 CLR 439; [1997] HCA 12
- Szulc v Chief Executive Officer, Department of Environment and Conservation (No 4) [2012] WASCA 143