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Court of Criminal Appeal 15 May 2024

Sayer-Jones v R

[2024] NSWCCA 73

Fraud & dishonesty
CRIMINAL LAW RELEVANCE OF DELAY ON SENTENCE DELAY AS A MITIGATING FACTOR NO ERROR ESTABLISHED APPLICATION REFUSED

Citation: Sayer-Jones v R [2024] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 15 May 2024
Judges: Leeming JA at [1]; Campbell J at [7]; N Adams J at [13]

Background

The applicant, a self-represented accused with a law degree, was convicted by a jury on one of two fraud-related charges brought under s 319 of the Crimes Act 1900 (NSW). The charges had a complicated procedural history spanning several years. A significant period of unexplained delay occurred between a 2019 Supreme Court decision and the service of an ex officio indictment in February 2021, a gap the Crown conceded was unexplained.

Ahead of his sentencing hearing, the applicant caused two subpoenas to be issued to solicitors from the Office of the Director of Public Prosecutions who had carriage of or supervisory responsibility for his matter during that second period. He also sought leave to issue a subpoena to a sitting District Court judge. His stated purpose was to cross-examine those witnesses at sentence about the reasons for the delay.

Harris DCJ set aside the two issued subpoenas and refused leave to issue the third, concluding they lacked a legitimate forensic purpose. The applicant sought leave to appeal that interlocutory decision to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the subpoenas issued by the applicant had a legitimate forensic purpose sufficient to withstand a challenge to set them aside
  • Whether the trial judge erred in concluding that the reasons for prosecutorial delay were not relevant at sentence in the circumstances
  • Whether a self-represented accused in criminal proceedings has an entitlement to issue subpoenas to attend and give evidence without the constraints applicable in civil proceedings
  • Whether the applicant had a right to cross-examine witnesses he himself subpoenaed at a sentencing hearing

Decision

All three judges agreed that leave to appeal should be refused, and that the primary judge's decision was clearly correct. The applicant had not identified a legitimate forensic purpose for any of the three subpoenas. N Adams J provided comprehensive reasons; Leeming JA and Campbell J added observations of their own.

Leeming JA noted a fundamental misconception in the applicant's approach: the applicant repeatedly asserted a right to cross-examine the witnesses he sought to subpoena, which is not how a party adduces evidence from their own witnesses. Even setting aside the procedural error, no basis had been identified that would entitle the applicant to cross-examine any of the proposed witnesses at a sentencing hearing. His stated purpose was therefore unachievable regardless of whether the subpoenas stood.

Campbell J addressed the applicant's sweeping submissions about party autonomy in adducing evidence, which he described as "startling." The applicant relied on two authorities, Alexandroaia and ex parte Polemis, for the proposition that a party has a near-unlimited right to raise evidence of whatever kind. Campbell J rejected this interpretation. Both cases concerned whether a refusal to adjourn constituted a denial of natural justice, and neither supported the broad entitlement the applicant claimed. The concept of legitimate forensic purpose exists precisely to prevent parties from co-opting court processes without proper justification.

N Adams J dealt in detail with the grounds of appeal. On Ground 1, the applicant had not positively established any apparent relevance of the evidence the proposed witnesses would give. On Ground 2, since no error had been identified in the trial judge's conclusions about the significance of delay at sentence, the reasons for that delay did not advance the matter further. The trial judge had correctly identified the relevant sentencing principles concerning delay and would apply them at the sentencing hearing.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A self-represented accused in criminal proceedings does not face the same leave requirement to issue subpoenas as an unrepresented civil litigant under r 7.3(1) of the Uniform Civil Procedure Rules 2005 (NSW), because those rules do not apply to criminal proceedings governed by Part 3 of Chapter 4 of the Criminal Procedure Act 1986 (NSW). However, subpoenas in criminal matters must still serve a legitimate forensic purpose.
  • The concept of "legitimate forensic purpose" operates as a genuine constraint on a party's ability to require third parties to attend court, and the Court of Criminal Appeal firmly rejected any construction of that concept that would reduce it to a mere formality.
  • A party generally cannot cross-examine their own witnesses; the applicant's stated purpose of cross-examining subpoenaed Crown solicitors about prosecutorial delay was procedurally misconceived, which itself undermined any legitimate forensic purpose for the subpoenas.
  • Neither Alexandroaia v R (1995) 81 A Crim R 286 nor R v Thames Magistrates' Court; ex parte Polemis [1974] 2 All ER 1219 establishes a broad entitlement to adduce evidence of any kind. Both decisions concerned the narrower question of whether a refusal to adjourn amounted to a denial of natural justice.
  • Unexplained prosecutorial delay can remain a relevant mitigating factor at sentence even where a court declines to compel Crown solicitors to give evidence explaining it. The District Court's refusal of the subpoenas did not, as the applicant contended, render delay irrelevant at his sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192E(1)(b), 192G, 319
- Crimes (Appeal and Review) Act 2001 (NSW), s 52(1)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), Ch 4 Pt 3, s 298
- Uniform Civil Procedure Rules 2005 (NSW), r 7.3(1)
- Prevention of Oil Pollution Act 1971 (UK), s 2(1)

Cases:
- Alexandroaia v R (1995) 81 A Crim R 286
- Coles v R [2016] NSWCCA 32
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Director of Public Prosecutions (Cth) v Pratten (No 2) (2017) 94 NSWLR 194; [2017] NSWCCA 42
- FT (a pseudonym) v The King [2024] VSCA 90
- GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jamieson v The Queen (1993) 177 CLR 574; [1993] HCA 48
- Khanna v Woolworths Group Ltd [2022] NSWCA 94
- Mill v R (1988) 166 CLR 59; [1988] HCA 70
- R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303
- R v Donald [2013] NSWCCA 238
- Sayer-Jones v The Director of Public Prosecutions (NSW) [2019] NSWSC 1615
- Decision Restricted [2022] NSWCCA 99
- Sayer-Jones v R [2024] NSWCCA 54