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Court of Criminal Appeal 10 February 2020

Munshizada v R

[2020] NSWCCA 9

HomicidePublic order & justice offences
CRIMINAL PROCEDURE [1992] HCA 57

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

Background

The accused was charged with murder and had a six-week trial fixed to commence on 3 February 2020, a date set six months in advance. He was represented by experienced senior counsel and a solicitor firm, both funded through Legal Aid, who had confirmed the matter was ready to proceed on multiple occasions in late 2019.

On 21 January 2020, less than two weeks before the trial date, the accused withdrew his instructions from both his solicitors and senior counsel. His stated reason was that his legal team had not followed all of his instructions and that he had not yet had the opportunity to review his brief. Senior counsel, when asked, confirmed that the defence was in fact ready to proceed, subject to two minor evidentiary matters that were subsequently resolved.

The trial judge, Fagan J, refused an application to vacate the trial date and delivered written reasons. The accused then sought urgent leave to appeal that refusal to the Court of Criminal Appeal, on grounds including that the trial judge had failed to properly assess the fairness implications of the accused proceeding unrepresented.

  • Whether the trial judge's refusal to vacate the 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 his assessment of the fairness of requiring the accused to proceed without representation
  • Whether the trial judge had failed to give adequate weight to the accused's dismissal of his legal team and the reasons for it
  • Whether the principles from Dietrich v The Queen (1992) 177 CLR 292 applied to require the trial be adjourned
  • Whether the trial judge's exercise of discretion was attended by error of principle or was otherwise unreasonable

Decision

Bell P, with whom Basten JA and Payne JA agreed, held that even assuming the refusal to vacate the trial was amenable to interlocutory appeal under s 5F(3), there was no basis for granting leave. The trial judge had correctly identified and weighed the relevant considerations, and his decision was both principled and reasonable in the circumstances.

Central to the Court's reasoning was the finding that the accused's lack of representation was entirely of his own making. He had dismissed competent and experienced senior counsel and instructing solicitors who had confirmed readiness to proceed, without any demonstrated incompetence or other proper basis for termination. The Dietrich principle, which affords protections to accused persons who lack representation through no fault of their own, had no application where the absence of legal representation resulted from the accused's own unreasonable conduct.

The Court endorsed the trial judge's observation that accepting the accused's position would, in effect, allow an accused person to strategically dismiss his legal team at a late stage and then claim an adjournment on the ground of unrepresentation. Such an outcome would be incompatible with the orderly administration of criminal justice. The Court applied the principles from House v The King (1936) 55 CLR 499, noting that an appellate court will not disturb a discretionary decision merely because it might have exercised the discretion differently.

The community's interest in the prompt disposal of serious criminal charges, the position of approximately 40 Crown witnesses, and the upcoming co-accused trial fixed for 30 March 2020 were also identified as relevant countervailing considerations. No error of principle was demonstrated, and leave to appeal was refused.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Dietrich principle, which protects an accused person's right not to be tried without representation, does not apply where the absence of representation results from the accused's own unjustified withdrawal of instructions from a competent legal team.
  • Refusing an adjournment is a discretionary decision to which the general appellate restraint principles from House v The King apply: an appellate court will not intervene simply because it might have exercised the discretion differently.
  • Where an accused dismisses senior counsel and solicitors shortly before a fixed trial date without demonstrating incompetence or other proper cause, the court is not required to vacate the trial on fairness grounds.
  • In assessing adjournment applications in criminal proceedings, courts must weigh not only the interests of the accused but also those of the Crown, witnesses, co-accused, and the broader administration of justice.
  • The Court of Criminal Appeal confirmed that permitting accused persons to engineer their own unrepresented status in order to obtain adjournments would be incompatible with maintaining order in the administration of the criminal law.

Legislation and Cases Referenced

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

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