Citation: El-Saeidy v R (No 2) [2021] NSWDC 548
Court: District Court of New South Wales
Date: 10 September 2021
Judge(s): Bennett SC DCJ
Background
The appellant had been convicted and sentenced in the Local Court following charges involving an alleged assault on his daughter. He appealed to the District Court under the Crimes (Appeal and Review) Act 2001, and those appeal proceedings had been before Bennett SC DCJ since at least November 2018.
The matter had a protracted history involving multiple adjournments, interlocutory applications to adduce fresh evidence, subpoena disputes, and several unsuccessful attempts by the appellant to challenge the District Court judge's rulings in the Court of Appeal. The appellant was represented by a solicitor for much of this period.
When the matter was ultimately listed for a two-day final hearing on 23 and 24 April 2020, neither the appellant nor his solicitor appeared. The appeals were dismissed for want of prosecution. The appellant then applied to reinstate those dismissed appeals, and that reinstatement application was the subject of this judgment.
Legal Issues
- Whether the appellant had shown sufficient cause for his failure to appear at the final hearing on 23 April 2020.
- Whether it was in the interests of justice to reinstate the appeals and allow them to be heard.
Decision
The District Court was not satisfied that the appellant had demonstrated sufficient cause for his non-appearance on 23 April 2020. The hearing date had been fixed specifically to accommodate the appellant's solicitor's availability, and the court had expressly communicated that no further adjournments would be considered. Despite this, the appellant failed to appear and offered reasons the court did not accept as sufficient.
The court also examined whether reinstatement served the interests of justice. Drawing on the Court of Appeal's reasoning in Barrett v Director of Public Prosecutions (NSW) [2020] NSWCA 270, Bennett SC DCJ emphasised the strong public interest in finality, particularly in proceedings that had already been extensively and expensively litigated. The Local Court orders and the associated apprehended domestic violence orders had already expired, making the utility of reinstating the appeals doubtful.
The court also noted that reinstatement would not resolve the proceedings. If the appeal succeeded, the matter would return to the Local Court for a fresh hearing, with further rounds of litigation possible. Additionally, the application was not brought until the 365th day after the dismissal orders were made, a delay the court found difficult to reconcile with genuine urgency. On all these grounds, reinstatement was refused.
Orders Made
- The application to reinstate the dismissed appeals was refused.
Key Takeaways
- The District Court applied a two-part test on a reinstatement application: whether sufficient cause existed for the failure to appear, and whether reinstatement was in the interests of justice. Both elements must be satisfied.
- Finality carries significant weight in protracted criminal appeal proceedings. The court drew on Barrett v DPP to confirm that the public interest in concluding long-running litigation can weigh against reinstatement even where the applicant asserts innocence.
- Waiting until the final day of any available reinstatement period before applying is a factor that counts against the applicant, as it signals an absence of genuine urgency.
- Where the orders under challenge have already expired and the utility of granting relief is unclear, a court may decline to reinstate proceedings on that basis alone.
- A history of multiple adjournments, interlocutory challenges, and repeated non-readiness does not preclude a court from ultimately declining to extend further procedural indulgence, particularly once a firm hearing date has been communicated without qualification.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18 and 19
Cases:
- Barrett v Director of Public Prosecutions (NSW) [2020] NSWCA 270
- El Saeidy v Director of Public Prosecutions (NSW) [2017] NSWCCA 211
- El-Saeidy v Director of Public Prosecutions [2018] NSWCA 127
- El-Saeidy v Director of Public Prosecutions (NSW) [2019] NSWCA 289
- El-Saeidy v Director of Public Prosecutions No 2 [2019] NSWCA 297
- Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79