AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 10 February 2020

Munshizada v R

[2020] NSWCCA 9

HomicidePublic order & justice offences
CRIMINAL PROCEDURE HCA 57

Citation: Munshizada v R [2020] NSWCCA 9
Court: Court of Criminal Appeal
Date: 10 February 2020
Judges: Bell P at [1]; Basten JA at [58]; Payne JA at [83]

Background

The accused faced a murder trial fixed to commence on 3 February 2020 after having been arraigned in July 2019. He was represented, with the benefit of a Legal Aid grant, by an experienced senior counsel and solicitors, both of whom had confirmed to the trial judge on multiple occasions in late 2019 that the matter was ready to proceed.

On 21 January 2020, during the court vacation period, the accused withdrew his instructions from his entire legal team. His stated reason was a belief that the matter was not ready for trial, pointing to a list of nine matters he said had not been actioned. On 31 January 2020, Fagan J refused an application to vacate the trial date, finding the withdrawal of instructions was unreasonable and the supporting material weak.

The accused brought an urgent application to the Court of Criminal Appeal for leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW). The Court heard the application on 4 February 2020 and, at the conclusion of the hearing, refused leave.

Legal Issues

  • Whether the refusal to vacate a trial date was a "judgment or order" amenable to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW)
  • Whether the trial judge erred in refusing to vacate the trial on the grounds that the accused's withdrawal of instructions was unreasonable
  • Whether the trial judge failed to properly assess the degree to which the accused's lack of representation would affect the fairness of his trial
  • Whether comments by the trial judge generated a legitimate expectation that the trial might be deferred
  • Whether the trial judge erred by taking into account the impact of vacation on Crown witnesses without specific evidence
  • Whether the trial judge failed to consider the effect of the accused's lack of representation on his subsequent co-accused trial
  • Whether the trial judge erred in finding the accused acted unreasonably in dismissing counsel for failing to follow his instructions

Decision

Appellate jurisdiction under s 5F(3): Basten JA addressed, but did not definitively resolve, whether a decision about the listing of a trial date constitutes an "interlocutory judgment or order" within s 5F(3). His Honour observed that some procedural rulings fall outside that description, and that there are significant practical difficulties in rendering such decisions readily appealable, particularly where the accused has not given sworn evidence about the reasons for withdrawing instructions (at [60]-[66]). The Court proceeded on the assumption that jurisdiction existed, but noted that where the difficulties identified arise, it will be difficult to grant leave (at [66]).

Refusal to vacate: no error in principle: The Court held that the trial judge committed no error of principle in refusing to vacate the trial date (at [42]). Senior counsel had been engaged for a significant period, had confirmed readiness to proceed as recently as 20 December 2019, and the material filed in support of the adjournment application was weak, vague, and in many respects misconceived (at [44]). No submission was made that the legal team's conduct had been incompetent or that it warranted termination of the retainer (at [44]).

Unreasonableness of withdrawal: The nine matters listed in the affidavit filed in support of the application were, to the extent they reflected instructions at all, matters upon which experienced senior counsel had exercised independent forensic judgment. The trial judge was entitled to find that dismissing counsel on that basis was unreasonable (at [35]). Counsel is not bound to follow a client's instructions blindly but must make a conscientious assessment of whether a proposed course is appropriate (at [55]).

Fairness and the Dietrich principle: Where an accused has been provided with Legal Aid and experienced counsel has confirmed readiness to proceed, the accused is not "relevantly indigent" in the sense contemplated by Dietrich v The Queen. Where lack of representation flows from the accused's own unreasonable choice to withdraw instructions, the absence of representation alone does not establish relevant unfairness requiring vacation of the trial (at [48], [72], [76], [80]). There is a substantial burden on an accused in that position to justify the refusal to avail themselves of the offered representation (at [76]).

No legitimate expectation: The Court found that no legitimate expectation had been generated by the trial judge's comments during the January mentions. Fagan J had expressly stated he was making no promises about adjourning, and had consistently made plain that withdrawal of instructions was the accused's own choice with attendant consequences. The accused had acknowledged this understanding on more than one occasion (at [49]-[50]).

Impact on Crown witnesses and subsequent trial: The trial judge was entitled to draw inferences about the impact of vacating the trial on approximately 40 Crown witnesses without requiring specific evidence directed to each witness, particularly in the urgent circumstances in which the application came on (at [52]). The trial judge also expressly considered the potential effect of the accused's lack of representation on his subsequent co-accused trial, meaning that proposed ground of appeal disclosed no failure to take a relevant matter into account (at [53]).

Orders Made

  • The application for leave to appeal is dismissed.

Key Takeaways

  • Where an accused who has been granted Legal Aid and provided with experienced, trial-ready senior counsel unreasonably withdraws instructions shortly before trial, there is a substantial burden on that accused to justify the withdrawal. Absence of representation flowing from such a choice does not, of itself, establish the kind of relevant unfairness that ordinarily requires a trial to be vacated under Dietrich v The Queen (at [76], [80]).

  • Counsel is not bound to follow a client's instructions blindly. Forensic decisions about the conduct and preparation of a defence case fall within the province and responsibility of counsel, and a client's dissatisfaction with those judgments does not automatically justify terminating a retainer (at [35], [55]).

  • Basten JA raised, without deciding, a significant jurisdictional question: not every decision about trial listing necessarily constitutes an "interlocutory judgment or order" amenable to challenge under s 5F(3) of the Criminal Appeal Act 1912 (NSW). Where an accused has not given sworn evidence about the reasons for withdrawing instructions, the practical difficulties of addressing such an appeal will weigh heavily against the grant of leave (at [60]-[66]).

  • In exercising a discretion to refuse vacation of a trial, a trial judge is entitled to draw reasonable inferences about the impact on Crown witnesses and the administration of justice without requiring specific evidence directed to each consideration, especially when the application arises in urgent circumstances (at [52]).

  • No legitimate expectation of adjournment arises from a trial judge's case management comments where those comments are expressly qualified and consistently convey that any adjournment remains contingent and that the accused bears the consequences of withdrawing instructions (at [49]-[50]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) s 5F(3)

Cases
- Alexandroaia v R (1995) 81 A Crim R 286 Bozatsis & Spanakakis v R (1997) 97 A Crim R 296 BWM v R (1997) 91 A Crim R 260 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Greer v R (1992) 62 A Crim R 442 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 Lethlean v R (1995) 83 A Crim R 197 McInnis v The Queen (1979) 143 CLR 575; [1979] HCA 65 R v BK [2000] NSWCCA 4; 110 A Crim R 298 R v Powch (1988) 14 NSWLR 136