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Court of Criminal Appeal 3 April 2024

Chahine v R

[2024] NSWCCA 44

Firearms & weapons
CRIMINAL LAW APPEAL APPLICATION TO VACATE HEARING HEARING VACATED

Citation: Chahine v R [2024] NSWCCA 44
Court: Court of Criminal Appeal, NSW
Date: 3 April 2024
Judge(s): Harrison CJ at CL; Button J; Dhanji J

Background

The appellant was convicted by jury in October 2022 on three counts: discharging a firearm with intent to cause grievous bodily harm, possessing ammunition in contravention of a firearms prohibition order, and possessing an unlicensed firearm. He was sentenced to an aggregate term of six years' imprisonment with a four-year non-parole period. The appellant did not challenge his sentence and confined his appeal to the convictions.

Legal Aid had granted funding for the appellant to challenge his conviction on the first count only. Funding was refused for the two firearms possession counts. On 20 March 2024, shortly before the scheduled appeal hearing, the appellant filed a notice of motion to vacate the hearing so he could exercise his statutory right to appeal the Legal Aid refusal to a Legal Aid Review Panel.

The Crown opposed the adjournment, arguing the appellant had not demonstrated that his appeal to the Review Panel was bona fide or free from vexation.

  • Whether the requirements of section 57 of the Legal Aid Commission Act 1979 were satisfied, obliging the Court to adjourn the proceedings while a Legal Aid Review Panel appeal was pending or intended.
  • Whether the appellant's proposed challenge to the Legal Aid refusal was bona fide and not frivolous, vexatious, or intended to improperly delay proceedings.
  • Whether any special circumstances prevented an adjournment.

Decision

The Court focused on section 57 of the Legal Aid Commission Act 1979, which provides that a court or tribunal must adjourn proceedings where a party has appealed, or intends to appeal, to a Legal Aid Review Panel, provided the appeal is bona fide and not frivolous or vexatious, and no special circumstances prevent adjournment. The operative word in the provision is "shall": where those conditions are met, adjournment is mandatory, not discretionary.

The Court rejected the Crown's contention that the proposed Review Panel appeal lacked bona fides. It identified an arguable logical connection between the basis for challenging the conviction on the firearms discharge count and the possible grounds for challenging the two possession counts. The mere fact that legal aid had been refused did not, in the Court's view, establish that any challenge to that refusal was without merit or improperly motivated.

The Court also noted that the appellant had been informed there was no guarantee the appeal would be heard before his non-parole period expired, yet he chose to proceed. That conscious acceptance of risk reinforced the bona fide nature of the application. Satisfied that section 57 was engaged and that its requirements were met, the Court held the adjournment was mandated.

Orders Made

  • The hearing listed for that day was vacated, on the basis that the appellant would prosecute his appeal with all due despatch.
  • The proceedings were adjourned for directions before the Registrar on 4 April 2024, with no appeal date to be allocated until the Legal Aid Review Panel's decision was finalised.

Key Takeaways

  • Under section 57 of the Legal Aid Commission Act 1979, adjournment of court proceedings is mandatory (not discretionary) where a party intends to appeal a legal aid refusal to a Legal Aid Review Panel, provided the appeal is bona fide and no special circumstances prevent it.
  • The Court of Criminal Appeal confirmed that a Legal Aid refusal does not, of itself, establish that a proposed Review Panel appeal is frivolous or vexatious.
  • Where an arguable logical connection exists between funded and unfunded grounds of appeal, this can support a finding of bona fides in the application to vacate a hearing.
  • An appellant's informed acceptance of procedural risk, including the possibility that the appeal may not be heard before a non-parole period expires, can reinforce rather than undermine the genuine nature of an adjournment application.
  • No appeal date will be fixed until the Legal Aid Review Panel process has concluded, reflecting the statutory framework's intention to preserve a party's right to seek review of funding decisions before substantive proceedings advance.

Legislation and Cases Referenced

Legislation:
- Legal Aid Commission Act 1979 (NSW), s 56 and s 57
- Crimes Act 1900 (NSW), s 33A(1)(a)
- Firearms Act 1996 (NSW), ss 7A(1), 74(3)

Cases cited: No cases were cited in the judgment.