Citation: Kostov v Commissioner of Police (No 2) [2020] NSWSC 679
Court: Supreme Court of New South Wales
Date: 1 June 2020
Judge(s): Adamson J
Background
The plaintiff was convicted in the Local Court on 13 August 2019 on two counts of using a false document to obtain a financial advantage, contrary to s 254(b)(ii) of the Crimes Act 1900 (NSW). The charges related to emails that falsely purported to authorise partial waivers of Supreme Court filing fees, allegedly used to obtain amounts of $311 and $241.
At the Local Court hearing, the plaintiff appeared unrepresented. During the evidence of the first prosecution witness, she took objection to a person in the public gallery. When the magistrate declined to remove that person, the plaintiff left the courtroom. Four prosecution witnesses gave evidence and were excused while the plaintiff was absent; none were cross-examined. The plaintiff returned partway through the evidence of the final witness, the informant police officer, but declined to cross-examine her.
The plaintiff was convicted on both counts and later sentenced. She filed a summons in the Supreme Court seeking leave to appeal against her convictions, raising a number of grounds relating primarily to procedural unfairness in the conduct of the hearing below.
Legal Issues
- Whether the Magistrate erred by relying on the evidence of prosecution witnesses who were not cross-examined, given the plaintiff was absent from the courtroom during their testimony
- Whether a self-represented accused who voluntarily absents herself from proceedings can rely on the lack of cross-examination as a ground of appeal
- Whether the plaintiff had a right to legal representation, or whether the court was required to ensure she was represented before proceeding
- Whether the plaintiff's various adjournment grounds warranted a delay of the Supreme Court appeal hearing
- Whether constitutional issues raised by the plaintiff required the matter to be removed to the High Court
Decision
Adamson J refused the adjournment application. Her Honour reviewed the substantial litigation history and found no basis for concluding that removal to the High Court was required, that the plaintiff's health or personal circumstances warranted delay, or that the question of legal incapacity (raised in separate proceedings by the Attorney-General) was a matter arising in these proceedings.
On the substantive appeal, the court examined the plaintiff's central complaint: that the Magistrate had unfairly relied on evidence from witnesses who were not cross-examined. The court found that this complaint could not succeed because the plaintiff had voluntarily chosen to leave the courtroom. In an adversarial system, the right to cross-examine is the accused's to exercise or waive. A party who voluntarily absents herself during proceedings is treated as present for the purposes of both the Criminal Procedure Act 1986 (NSW) and the Crimes (Appeal and Review) Act 2001 (NSW), and cannot later complain that she was denied a procedural opportunity she chose to forgo.
The court also rejected the argument that the Magistrate was obliged to ensure the plaintiff was legally represented. Consistent with Dietrich v The Queen (1992) 177 CLR 292, there is no general right to have counsel provided at public expense in criminal proceedings, and the present case did not involve a serious offence triggering the limited exceptions recognised in that decision. The plaintiff had previously appeared through legal representatives at directions hearings and had prepared detailed written submissions for the hearing, which indicated both a capacity and a readiness to conduct her own defence.
Each of the remaining grounds raised questions of fact or mixed law and fact, requiring leave under s 53 of the Act. The court found that none of the grounds would succeed even if leave were granted, as they rested on a misapprehension of the Criminal Procedure Act and the principles of the adversarial system. Leave to appeal was refused and the summons was dismissed.
Orders Made
- The Commissioner of Police, NSW Police Force, substituted for NSW Police as the defendant
- Time for filing the summons extended to 20 February 2020
- Leave to appeal refused
- Summons otherwise dismissed
Key Takeaways
- An accused who voluntarily leaves the courtroom during a criminal hearing is treated as present for the purposes of the Criminal Procedure Act 1986 (NSW) and the Crimes (Appeal and Review) Act 2001 (NSW), and cannot rely on the absence of cross-examination as a ground of appeal.
- The adversarial system places the decision to cross-examine with the party entitled to do so. Where a defendant chooses not to exercise that right, whether by declining to cross-examine or by absenting herself, no procedural error arises on the part of the court.
- Under Dietrich v The Queen, there is no general right to publicly funded legal representation in criminal proceedings. The limited exceptions identified in Dietrich did not apply where the offences were not sufficiently serious and the accused had demonstrated capacity to conduct her own defence.
- Grounds of appeal raising questions of fact or mixed law and fact require leave under s 53 of the Crimes (Appeal and Review) Act 2001 (NSW). The Supreme Court will refuse leave where it is not persuaded the grounds would succeed.
- A post-conviction psychiatric report and separate proceedings concerning legal incapacity were not germane to the appeal, as they post-dated the orders under challenge or arose in distinct proceedings to which different parties were involved.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 254(b)(ii)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 11, 52, 53, 55
- Criminal Procedure Act 1986 (NSW), ss 3, 28, 36, 37, 38, 192, 194, 195, 196, 202
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
- Supreme Court Act 1970 (NSW), s 69
- Supreme Court Rules 1970 (NSW), Pt 51B, r 6
- Judiciary Act 1903 (Cth), s 78B
- Vexatious Proceedings Act 2008 (NSW), ss 8, 13
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 6
- Commonwealth Constitution
Cases
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94
- McKellar v DPP [2014] NSWSC 459
- Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298