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Court of Criminal Appeal 10 February 2020

Croke v R

[2020] NSWCCA 8

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW PRINCIPLES IN DIETRICH NECESSARY FOR COUNSEL TO RUN TRIAL ADJOURNMENT OR STAY REQUIRED LEAVE GRANTED APPEAL ALLOWED.

Citation: Croke v R [2020] NSWCCA 8
Court: Court of Criminal Appeal, New South Wales
Date: 10 February 2020
Judges: Adamson J; Beech-Jones J; Ierace J

Background

The appellant, a solicitor, faced trial in the District Court on six criminal charges including perverting the course of justice, fraud-related offences, and participating in a criminal group. A key Crown witness, Owen Hanson, was serving a prison sentence in the United States and had been arranged to be flown to Australia specifically for the trial.

The trial had already been vacated twice: once at the Crown's request due to Hanson's unavailability, and once at the appellant's request after his counsel withdrew following financial difficulties caused by a large tax debt payment. The trial was ultimately specially fixed for 29 January 2020 at a date confirmed as suitable for the appellant's barrister, Mr Korn.

In December 2019, Mr Korn returned the brief. He was obligated to appear in a sexual assault retrial that had been fixed for February 2020, and his client in that matter refused to release him. By the time the adjournment application came before the primary judge on 22 and 23 January 2020, NSW Police had already begun travelling to the United States to facilitate the transfer of Hanson.

  • Whether the District Court judge erred in refusing to adjourn or stay the trial in circumstances where the accused was effectively unrepresented through no fault of his own
  • Whether the principles from Dietrich v The Queen (1992) applied so as to require an adjournment or stay to avoid a serious risk of an unfair trial
  • Whether the complexity of the matter was such that legal representation by counsel was necessary for a fair trial

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, setting aside the primary judge's refusals of an adjournment and a temporary stay. The Court found that the appellant had been left effectively without representation through no fault of his own. Mr Korn had committed to appear at a date specially fixed to suit him, in a complex matter involving an overseas witness held in custody, and then returned the brief only days before trial when an earlier obligation re-emerged.

The Court applied the principles in Dietrich v The Queen, which recognise that a court may be required to adjourn or stay a serious criminal trial where the accused is unrepresented through no fault of their own and the circumstances are such that a fair trial cannot otherwise be had. The Court found this was precisely such a case. The charges were serious, the brief ran to 30 folders of documents, and the trial was of a length and complexity that made self-representation a real obstacle to a fair hearing.

The Court also noted concern about the process by which Mr Korn obtained ethics advice about returning the brief. The email exchange with senior counsel arranged by the Bar Association did not record that the trial had been specially fixed to accommodate Mr Korn, nor that he had agreed to defer the full securing of his fees. The Court observed that these omissions were directly relevant to the question of whether the brief was "ethically returned."

Relief was framed as a temporary stay rather than an adjournment to a fixed date, specifically to preserve the District Court's control over its own listing arrangements. The stay ran until 2 March 2020, a date by which alternative counsel could reasonably be expected to be ready, and by which the appellant's property (scheduled for auction on 27 February 2020) could be realised to fund representation.

Orders Made

  • Leave granted to appeal from the District Court's refusals to vacate the trial (29 January 2020) and to grant a temporary stay (30 January 2020)
  • Appeal allowed
  • Both orders of Syme DCJ on 29 and 30 January 2020 set aside
  • Trial stayed up to and including 2 March 2020, with liberty for the District Court to make interlocutory orders for the conduct of any trial on or after that date
  • Appellant directed to provide any application for a non-publication order to Adamson J's chambers by 3:00pm on the day of the orders

Key Takeaways

  • The Dietrich principles require a court to consider adjourning or staying a serious criminal trial where the accused is left unrepresented through no fault of their own and the complexity of the case makes self-representation a genuine impediment to a fair trial.
  • Where a barrister has committed to appear at a specially fixed trial date and returns the brief at the last moment, the circumstances under which that brief was returned are directly relevant to assessing fault on the part of the accused.
  • A temporary stay, rather than an adjournment to a new date, is an appropriate form of relief where the appellate court wishes to preserve the primary court's control over its own listing and case management.
  • The Court of Criminal Appeal signalled that any further application for adjournment or stay would be assessed on the basis that the appellant had assets available to fund his defence, having had the opportunity to realise them; failure to take expeditious steps to do so could result in facing trial unrepresented.
  • Omitting material facts when seeking ethics advice about returning a brief, particularly facts directly bearing on the circumstances of the original retainer, was a matter of concern for the Court.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), ss 93T(1A), 192G(b), 319
- Criminal Procedure Act 1986 (NSW), s 132(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Marwan v Director of Public Prosecutions [2019] NSWCCA 161
- R v Baker [2000] NSWCCA 85