Citation: [2026] NSWCCA 14
Court: Court of Criminal Appeal (New South Wales)
Date: 25 February 2026
Judge(s): Ward P (primary judgment); Price AJA (agreeing); Fagan J (agreeing, with additional remarks)
Background
The applicant was convicted by a jury in the District Court on 10 May 2023 of six charges of personal violence against his former partner (the complainant). The offences — comprising several counts of common assault, intimidation, assault occasioning actual bodily harm, and intentionally suffocating with recklessness — were committed between April 2018 and October 2020 at a property in Lidcombe. The applicant and the complainant had been in a relationship for approximately three years before it broke down.
The applicant was sentenced on 9 May 2024, alongside separate false documents offences for which he had been convicted in a judge-alone trial before the same trial judge. The aggregate sentence was 7 years and 9 months' imprisonment with a non-parole period of 3 years and 6 months, commencing on 19 January 2022. The applicant's non-parole period expired on 18 July 2025, and he was released on parole on that date, with the head sentence due to expire on 18 October 2029.
The applicant sought leave to appeal against both conviction and sentence. He represented himself at the trial of the personal violence offences and, on appeal, contended that the trial was fundamentally unfair because of the trial judge's refusal to grant an adjournment so he could obtain legal representation, the impact of his mental health conditions on his capacity to conduct his own defence, and the exclusion of evidence said to undermine the complainant's credibility.
Legal Issues
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Ground 1: Whether the trial judge's refusal of an adjournment prior to trial caused a miscarriage of justice by preventing the applicant from pursuing a course that could, with any reasonable prospect of success, have enabled him to obtain legal representation.
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Ground 2 (fresh/new evidence): Whether the trial judge erred in refusing an application to recall the complainant for cross-examination regarding the alleged photoshopping of images (trial exhibit "X"), and whether fresh or new evidence should be admitted on appeal.
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Ground 3: Whether the trial judge erred in allowing the trial to continue once the severity and implications of the applicant's diagnosed psychopathology — a bipolar condition and a "voice confrontation" condition — made it apparent he could no longer receive a fair trial without legal representation.
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Grounds 1 and 3 combined: Whether, considered holistically, the trial as conducted was unfair to the applicant.
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Sentence appeal: Whether there was a striking discrepancy between the custodial conditions the sentencing judge understood would apply and the conditions actually experienced by the applicant.
Decision
Ground 1: Refusal of Adjournment
Ward P (with whom Price AJA and Fagan J agreed) found no error in the trial judge's conclusion that all avenues for legal aid had been exhausted at the time of the adjournment application. The trial judge was entitled to have regard to both a report to creditors by the applicant's trustee in bankruptcy and Legal Aid's position that the applicant had failed to provide complete and adequate disclosure of his assets. The Court held that the applicant had not been "full and frank" regarding his financial position, and that no error in the trial judge's findings on indigence had been established. Importantly, the Court emphasised that even if indigence had been proven, there is no absolute right to legal representation at public expense, and indigence alone would not have mandated a stay.
The Court also rejected the argument that a subsequent grant of legal aid for the false documents trial demonstrated the adjournment should have been granted. That later grant was an event occurring after the discretionary decision under challenge and could not retrospectively establish that, had an adjournment been given, legal aid would have been obtained within a reasonable time for the personal violence trial.
Ground 2: Fresh or New Evidence Application
The Court refused the application to adduce fresh or new evidence on appeal. The proposed evidence — concerning the authenticity of exhibit "X" and the complainant's credit — was found to be no more than speculation. It was not sufficiently cogent to support a conclusion that its absence from the trial had caused a miscarriage of justice. The trial judge's refusal to recall the complainant for further cross-examination on the photoshopping allegation was not erroneous.
Ground 3: Psychopathology and Capacity to Self-Represent
The Court found that the premise of Ground 3 was not established. The medical evidence before the trial judge regarding the applicant's bipolar condition did not support a conclusion that the condition precluded him from conducting his own trial or rendered it unfair. A review of the trial transcript revealed no point at which the bipolar condition was so severe as to warrant adjournment. As to the "voice confrontation" condition — the applicant's reported aversion to hearing his own voice played on speaker in the courtroom — the Court found nothing in the transcript to suggest this was so debilitating as to preclude his ability to conduct his defence. The suggestion that a legal representative might have identified useful material in call transcripts was characterised as speculation.
Fairness of the Trial (Grounds 1 and 3 Combined)
Considering the trial holistically, the Court was satisfied that the trial judge balanced the competing interests appropriately and took all proper steps to protect the applicant's interests. The trial judge permitted short adjournments when requested, provided guidance on issues for cross-examination and procedural matters, and ensured the applicant had considerable practical assistance, facilities, and time to prepare and conduct his case. Fagan J remarked that the trial judge conducted the trial with "scrupulous fairness" and showed "exemplary patience," describing it as a "textbook example of fair treatment" of a self-represented accused. The complaint that the trial had "broken down" was without substance, as was the challenge to the Crown's confined closing address.
Sentence Appeal
The sole ground pressed on sentence — that there was a striking discrepancy between the custodial conditions the sentencing judge believed would apply and those actually experienced — relied entirely upon events occurring after the sentence was imposed. The Court held this ground had no prospects of success and refused leave to appeal.
Orders Made
- Leave to appeal against conviction was granted, but the appeal was dismissed.
- The application to adduce fresh or new evidence on appeal was refused.
- Leave to appeal against sentence was refused.
Key Takeaways
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The Court of Criminal Appeal reaffirmed the principle from Dietrich v The Queen that there is no absolute right to legal representation at public expense, finding that an applicant who had not been full and frank in disclosing assets to Legal Aid could not credibly argue they were denied a reasonable opportunity to obtain representation.
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Post-decision events cannot retrospectively invalidate a discretionary ruling. The fact that legal aid was subsequently granted for a different trial did not, without more, demonstrate that an earlier refusal to adjourn was erroneous, as the correctness of the discretion was to be assessed on the material available at the time it was exercised.
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In evaluating the trial judge's management of the self-represented accused, the Court assessed the conduct of the trial holistically, examining whether the trial judge balanced the relevant interests and provided appropriate accommodations (including procedural guidance, adjournments, and practical assistance). Where the trial judge had done so, complaints of unfairness did not succeed.
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Medical evidence of a mental health condition must specifically address capacity to self-represent. A diagnosis alone was insufficient; the evidence needed to establish a causal link between the condition and an inability to conduct a defence. Speculative assertions about what a lawyer might have done differently did not suffice.
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Sentence appeals based on post-sentence events face a very high bar. The Court of Criminal Appeal confirmed that a ground of appeal depending entirely upon conditions or events arising after sentencing was unlikely to succeed, consistent with the established principle that the correctness of a sentence is assessed by reference to the circumstances at the time it was imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 37(1), 59(1), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5(1)(b), 5F, 12(1)(b)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), ss 55, 76, 102, 103, 104, 106, 135
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