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Court of Criminal Appeal 14 May 2026

DW v R

[2026] NSWCCA 57

Sexual offences
CRIMINAL PROCEDURE

Citation: [2026] NSWCCA 57
Court: Court of Criminal Appeal
Date: 14 May 2026
Judges: Payne JA, Rigg J, Roberts J

Background

The applicant, DW, is an accused person currently in custody serving sentences for unrelated sexual offences. He faced trial in the District Court on an indictment containing 25 counts of alleged sexual offending against a child over a period of approximately six years.

DW sought leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW) against two interlocutory orders. Deputy Chief Judge Hanley SC had refused on 7 April 2026 to vacate the trial listing, and Acting Judge King SC had refused on 28 April 2026 (the first day of trial) to adjourn the proceedings. At the time of hearing, the Crown estimated the trial had approximately two weeks remaining.

The trial that commenced on 28 April 2026 was the fourth separate listing. Three earlier trial dates (in July 2023, May 2024, and June 2025) had each been vacated. Critically, DW had retained and then dismissed three separate teams of solicitors and counsel over the course of the proceedings, and appeared self-represented at the time of the fourth listing.

  • Whether the District Court erred in refusing to vacate the trial date, in circumstances where the accused was unrepresented after dismissing three sets of lawyers.
  • Whether the accused's complaints about access to materials in custody and his intellectual disabilities warranted an adjournment.
  • Whether the interlocutory decisions involved error of the kind required to justify a grant of leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

Decision

The Court of Criminal Appeal refused leave to appeal. It heard the application on an urgent basis given the trial was ongoing, delivered its orders at the conclusion of the hearing, and reserved its reasons.

Both District Court judges had considered the applicant's complaints. These centred on Corrective Services NSW allegedly impeding his access to legal materials, his stated intellectual disabilities requiring extensive assistance to review the brief, and his desire to issue further subpoenas. However, the Crown had served the full brief on DW's previous legal representatives and re-served all material directly on the applicant in March 2026. Hanley DCJ noted the case was "not a complicated trial" and primarily involved credibility issues concerning the complainant's evidence.

A key factor in both decisions below was that DW had dismissed each of his three legal teams. It was neither submitted nor demonstrated that the conduct of any of those teams was incompetent or otherwise warranted termination of their services. DW's own explanation was that his lawyers did not obtain material he considered relevant and did not spend sufficient time with him. King ADCJ also confirmed that Legal Aid NSW had no open matters for DW and the Justice Advocacy Service was no longer assisting him.

The Court of Criminal Appeal found no basis to grant leave. The application was treated as interlocutory in nature, and the Court also rejected the tender of additional evidence (marked as MFI 1) on the basis that it had not been before either District Court judge.

Orders Made

  • The tender of additional evidence contained in MFI 1 was rejected, as it was not before either judge below.
  • Leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) was refused.
  • Reasons were reserved.
  • Publication of the reasons was restricted to the parties and the JIRS restricted database until the completion of DW's trial.
  • The Crown was directed to notify the associate to Payne JA when the trial concluded.

Key Takeaways

  • An accused who dismisses multiple legal teams without demonstrating incompetence or other justification for doing so will face significant difficulty in obtaining an adjournment or vacation of a trial date on the basis of being unrepresented.
  • The principle in Dietrich v The Queen (that a court may stay proceedings where an accused is unrepresented through no fault of their own) was not engaged where the accused's lack of representation resulted from his own repeated dismissal of lawyers.
  • No error was established in the exercise of discretion by either District Court judge, both of whom weighed the accused's complaints about access to materials against the lengthy history of delay, the repeated service of the brief, and the nature of the case.
  • Under s 5F(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will not receive evidence on an interlocutory appeal that was not before the judge whose decision is under challenge.
  • Repeated adjournments of criminal proceedings involving historical allegations of child sexual abuse engaged the public interest in the timely administration of justice, a factor both District Court judges were entitled to consider.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F

Cases:
- Commissioner of Corrective Services (NSW) v Hamzy [2024] NSWCA 240
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Greer v R (1992) 62 A Crim R 442
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Munshizada v R [2020] NSWCCA 9
- Patsalis v State of NSW (2012) 81 NSWLR 742; [2012] NSWCA 307