Citation: Regina v Adler [2000] NSWCCA 152
Court: NSW Court of Criminal Appeal
Date: 8 May 2000
Judge(s): Grove J, Hidden J, Greg James J
Background
The appellant was tried in the District Court on 21 counts of obtaining money or a financial advantage by deception, contrary to s 178BA of the Crimes Act. The Crown alleged that he induced investors to hand over funds on the representation that their money would be invested in Canadian Government bonds, when in fact he had no access to such bonds and the funds were used for other purposes. The investors collectively provided approximately $1.47 million and received back only around $323,640.
At the outset, the appellant was represented by senior counsel, junior counsel, and a solicitor. On 2 March 1998, roughly two weeks into a trial that ran from February to May, that legal team effectively withdrew. The trial judge ruled that proceedings would continue, and the appellant conducted his own defence from that point. He gave evidence in narrative form and, in doing so, conceded a number of the Crown's factual allegations.
The appellant was convicted on all 21 counts and sentenced to imprisonment. He appealed on 11 grounds, challenging the fairness of the trial, the conduct of the trial judge, the adequacy of jury directions, the admission of certain evidence, and the sufficiency of evidence on particular counts.
Legal Issues
- Whether the trial judge erred in refusing to discharge the jury when legal representatives withdrew mid-trial, rendering the continuation of the trial unfair
- Whether the trial judge erred in failing to advise the unrepresented appellant of his right to object to certain pieces of evidence
- Whether the trial judge improperly cross-examined the appellant, including a remark directing him to "try the truth"
- Whether the jury charge was flawed, including directions referencing the rule in Browne v Dunn and the manner in which witnesses' credibility was framed
- Whether a count was duplicitous (alleging two separate offences in the one charge)
- Whether there was sufficient evidence to support a conviction on a particular count
- Whether the Crown prosecutor engaged in improper conduct during cross-examination
Decision
The Court of Criminal Appeal dismissed the appeal on all grounds. Grove J delivered the principal judgment, with Hidden J and Greg James J agreeing without additional comment.
On the central ground concerning the mid-trial withdrawal of lawyers, the Court found that the continuation of the trial did not render it unfair. The appellant's own narrative evidence and admissions meant that many factual allegations were not genuinely in dispute. The Court assessed the overall conduct of the trial, including the judge's charge and the quality of evidence, and concluded the proceedings were not rendered unfair by the absence of legal representation.
On the judicial questioning ground, the trial judge had asked the appellant whether he was telling the truth and urged him to "try the truth." While the Court acknowledged this exchange, it assessed it in the broader context of the trial and did not find it constituted reversible error. Similarly, the complaint about the Crown prosecutor's language in cross-examination was noted but dismissed as falling well short of demonstrating a miscarriage of justice, the Court observing that flourishes of language or dramatic effect during cross-examination do not, of themselves, warrant appellate intervention.
On the evidence complaints under ground 2, the Court found that the impugned evidence was either relevant or not objectionable in the circumstances. It was relevant for the Crown to demonstrate that investors' money had not been returned and was no longer in the company's assets. One particular complaint (ground 2(a)) was formally withdrawn by the appellant's counsel. The Court ultimately applied a holistic assessment: examining the issues litigated, the evidence, the jury charge, and the overall conduct of proceedings, it concluded the trial was not unfair.
Orders Made
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the mid-trial withdrawal of legal representatives does not automatically render a trial unfair; the question requires a holistic assessment of the entire proceedings, including the nature of the evidence and the issues genuinely in dispute.
- Where an unrepresented accused gives narrative evidence that concedes much of the Crown's factual case, the absence of legal assistance carries reduced weight in an overall fairness analysis.
- A trial judge's robust questioning of a self-represented accused, including a pointed remark about telling the truth, did not constitute reversible error on the facts of this case, though the Court did not endorse such exchanges as desirable practice.
- No error was established in the admission of evidence showing that investors' funds had not been repaid or retained in the company, as such evidence was directly relevant to the Crown case on deception.
- Colourful or dramatic language by a Crown prosecutor during cross-examination does not, without more, demonstrate a miscarriage of justice warranting appellate intervention.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 178BA
Cases:
- Adler v District Court of NSW (1990) 19 NSWLR 317
- Browne v Dunn (1894) 6R 67
- Dietrich v The Queen (1992) 177 CLR 292
- Doney v The Queen (1990) 171 CLR 207
- Edwards v The Queen (1993) 178 CLR 193
- Johnson v Miller (1937) 59 CLR 467
- R v Baraghith (1991) 54 A Crim R 240
- R v Ho (1988-89) 39 A Crim R 145
- R v Towner (1991) 56 A Crim R 221
- S v The Queen (1989) 168 CLR 266