(2000) 110 A Crim R 298
R v Warwick (No 64) [2019] NSWSC 163
R v Williams [2007] VSC 2
Source
Original judgment source is linked above.
Catchwords
(1989) 167 CLR 94
R v BK [2000] NSWCCA 4(2000) 110 A Crim R 298
R v Warwick (No 64) [2019] NSWSC 163
R v Williams [2007] VSC 2
Judgment (2 paragraphs)
[1]
The Application for the Vacation of the Trial Must be Rejected
For the reasons given above, the appropriate exercise of the Court's discretion is to refuse to vacate the trial.
Having said this, given that over four weeks remain until the commencement of the hearing, there is nothing preventing Mr Turnbull from making another application to vacate, assuming that there is evidence capable of supporting such an application (presently there is not). Were any such any application to be made, however, it would need to be done so expeditiously.
The orders of the Court are, therefore, that the motion is dismissed and the exhibits are to be returned.
[2]
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Decision last updated: 28 August 2019
Parties
Applicant/Plaintiff:
Chief Executive, Office of Environment and Heritage
Respondent/Defendant:
Turnbull
Cases Cited (31)
Legal Principles Applicable to the Vacation of Criminal Trials
In an application to vacate a criminal trial the onus rests on the party seeking to vacate the hearing, irrespective of whether or not that party is the accused or the prosecutor (R v BK [2000] NSWCCA 4; (2000) 110 A Crim R 298 at [12] and R v Warwick (No 64) [2019] NSWSC 163).
As the prosecutor submitted, it is important that anyone charged with a criminal offence be brought to trial expeditiously. Not only is this in their own interests, but it is also in the interest of the witnesses and in the administration of justice. It is essential to the orderly disposition of the work of the courts that trials are not adjourned unnecessarily (Murphy v R [1989] HCA 28; (1989) 167 CLR 94 at 99). The rights of parties to have matters heard as expeditiously as possible in the Court are a matter of public interest (Abdallah v R [2015] NSWCCA 233 at [7]).
Accordingly, there is a strong public interest that once fixed for hearing on the basis of the parties being ready to proceed, a criminal trial should ordinarily proceed with expedition (Slotboom v R [2013] NSWCCA 18 per Johnson J at [36]).
Although remarks such as these were made in the context of the case management provisions in Div 3 of Pt 3 of Ch 3 of the Criminal Procedure Act 1986, which do not apply in summary criminal proceedings in this Court, the observations are nevertheless apposite given the analogous case management provisions that apply in these proceedings under Div 2A of Pt 5 of Ch 4 of the Criminal Procedure Act.
But notwithstanding these pronouncements, the overriding principle guiding the exercise of the Court's discretion in this application is the right to a fair trial; a central pillar of our criminal justice system. Courts can and should stay criminal proceedings which will result in an unfair trial (Dietrich v R [1992] HCA 57; (1992) 177 CLR 292).
Dietrich is authority for the proposition that, depending on all the circumstances of the particular case, a lack of legal representation might mean that an accused is unable to receive a fair trial (Mason CJ and McHugh J at 299-301 and Deane J at 334-335).
Most recently in Warwick (No 64) Garling J discussed and explored the principles espoused in Dietrich. Given their direct application to the present motion, I gratefully set out his Honour's pellucid summary of the relevant law (at [15]-[22]):
15. The principles in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 address the right to relief by way of a temporary stay of a criminal trial where an indigent defendant is charged with a serious criminal offence and who, through no fault of his or her own, find themselves without adequate legal representation. Where a court is satisfied that in the absence of legal representation, the trial would be unfair, the court has jurisdiction to adjourn or stay proceedings until legal representation can be arranged.
16. In State of NSW v Canellis [1994] HCA 51; (1994) 181 CLR 309, at 328, Mason CJ, Dawson, Toohey and McHugh JJ, said of the decision in Dietrich:
"… the principle established by the decision … is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation."
17. In Attorney-General for NSW v Milat (1995) 37 NSWLR 370 at 373, the Court of Criminal Appeal (Gleeson CJ, Kirby P and Mahoney JA) in a joint judgment wrote:
"(1) Australian law does not recognise that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense.
(2) However, under Australian law, an accused has the right to a fair trial or, perhaps more accurately, a right not to be tried unfairly.
(3) The courts have an inherent jurisdiction which extends to a power to stay proceedings in order to prevent the prosecution of a criminal proceeding which will result in a trial which is unfair.
(4) Each case needs to be examined in the light of its own particular circumstances. However, ordinarily, where an indigent person has been charged with a serious criminal offence, if, by reason of lack of means and the unavailability of other assistance, that person is denied legal representation, the trial will be unfair.
(5) Accordingly, where an indigent person has been charged with a serious criminal offence, and he or she is denied legal representation by reason of lack of means, and the unavailability of other assistance, the Court has jurisdiction to stay the proceedings until he or she is provided with legal representation necessary for a fair trial, or with the resources necessary for such representation."
18. The common law recognises that an unrepresented accused may face disadvantages in the conduct of a trial: McInnes v R [1979] HCA 65; (1979) 143 CLR 575, at 590 per Murphy J. Nevertheless, in Australia, there is no right of an accused to be provided counsel at public expense: Dietrich at 297‑298 per Mason CJ and McHugh J; at 316 per Brennan J; at 330 per Deane J; at 343 per Dawson J; at 352 per Toohey J; at 364 per Gaudron J.
19. Instead, the question of legal representation is framed according to the imperative right of an accused to have a fair trial, or perhaps more accurately expressed as "… a right not to be tried unfairly …": Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 at 29 per Mason CJ; 56 per Deane J; 72 per Toohey J; 75 per Gaudron J; Dietrich at 299 per Mason CJ and McHugh J.
20. Speaking generally, in order to obtain a stay of a criminal trial, the accused has the onus to prove:
that he or she is indigent;
that he or she is unable to obtain legal representation;
that to proceed without representation would render the trial of a serious criminal offence unfair; and
that he or she has not conducted themselves in a way which has unreasonably brought about any of these circumstances.
21. These general statements require some elaboration but in the application of the authorities discussed below, it is necessary to keep in mind the following overarching contextual considerations:
the attributes of a fair criminal trial cannot be, and have not been, listed exhaustively: Dietrich at 300 per Mason CJ and McHugh J;
the requirement of fairness is independent from, and additional to, the requirement that a trial be conducted in accordance with law: Dietrich at 363 per Gaudron J;
the inquiry as to whether a trial will be fair necessarily depends upon the circumstance of the particular case, but that does not mean that the Court exercises its inherent powers according to idiosyncratic notions of what is fair and just: Dietrich at 364 per Gaudron J;
a trial is not necessarily unfair because it is less than perfect (Dietrich at 365 per Gaudron J; Jago at 49 per Brennan J) or else simply because evidence which once existed has been lost or destroyed, or else because less than all of the material which could relevantly bear on the matter is available: R v Edwards [2009] HCA 20; (2009) 255 ALR 399 at [31];
it is of fundamental importance that unless the interests of justice demand it, courts should exercise their jurisdiction particularly to try individuals charged with serious criminal offences: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ; and
in judging fairness, the interests of the Accused cannot be considered in isolation without regard to the community's right to expect that persons charged with a criminal offence are brought to trial: Jago at 33 per Mason CJ; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 102 per Gibbs ACJ and Mason J.
22. Ordinarily, where a person charged with an indictable offence is indigent and unrepresented, they will be denied a fair trial: Dietrich at 337 per Deane J. These assumptions arise from the adversarial nature of a criminal trial, the complicated and obscure nature of criminal laws and rules governing evidence and the forensic contest that takes place between parties: Dietrich at 370 per Gaudron J.
Should the Trial be Vacated?
In the present case, it was correctly agreed that the offence with which Mr Turnbull has been charged may be characterised as "serious" (Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited [2010] NSWLEC 235 at [38]). Accordingly, the issues that arose for determination on the motion were three-fold:
1. first, whether Mr Turnbull was without legal representation;
2. second, whether Mr Turnbull was indigent; and
3. third, whether the delay of Mr Joseph (explained below) amounted to unreasonable conduct on the part of Mr Turnbull.
The Inadequacy of Mr Joseph's Evidence
Having regard to the legal principles articulated above, it became apparent that Mr Joseph's affidavit suffered from a number of fatal evidential omissions.
First, the fact that Ms Lane had handed back her brief on 2 July 2019 was, somewhat astonishingly, not disclosed in the affidavit. That this evidence was not referred to, although favourable to Mr Turnbull, gives rise to a real question as to the weight to be placed on the contents of Mr Joseph's affidavit as an accurate account of the circumstances giving rise to the application to vacate.
Second, at no point was adequate expert evidence by way of a medical certificate furnished explaining why Mr Littlemore QC remained unfit to appear at the hearing. All that is known is that as at 6 June 2019, Mr Littlemore QC was "recuperating after a medical procedure". And that on 2 July 2019, Ms Lane emailed Mr Joseph to inform him that, "I have been in touch with Mr Littlemore QC and he looks like not being in any shape to undertake the hearing in September/October due to his recent surgery."
Later in a letter to the prosecutor on 5 August 2019, Mr Joseph indicated (seemingly inconsistent with the 6 June 2019 email) that Mr Littlemore QC had undergone "a number of emergency cardiac surgeries from mid-June 2019 and is presently engaged in lengthy rehabilitation scheduled for six to eight weeks". Even assuming that his rehabilitation commenced as at that the date of that letter, it is unclear why Mr Littlemore QC, on this timeline, would not be available to appear at the hearing on 30 September 2019.
No proper evidence was provided to the Court to explain the circumstances of Mr Littlemore QC's incapacitation, its nature, its duration or why he would be prevented from appearing for Mr Turnbull at the scheduled hearing. During argument Ms Lane said that to provide such information would amount to a breach of Mr Littlemore QC's privacy. While I have some sympathy with this sentiment, given that his illness is the central basis for the present application to vacate the trial (as to the nature of the medical evidence required see UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at [41]-[54]. Although a civil case, the principles set out therein as to the content of any medical evidence are nevertheless apposite in criminal proceedings) such evidence ought nevertheless to have been provided to the Court.
In this regard, it should be noted that there was no evidence to suggest that Mr Littlemore QC has returned the brief. On the contrary, Ms Lane indicated from the bar table that Mr Littlemore QC was prepared to continue to act for Mr Turnbull in the event the hearing was vacated. Thus, on one view, Mr Turnbull continues to enjoy the retention of senior counsel who, on the evidence before the Court, is arguably available to conduct the trial.
It Was Not Known if Mr Turnbull is Unable to Obtain Legal Representation
As the discussion above concerning the evidence of Mr Joseph makes tolerably clear, it is not known if Mr Turnbull is unable to obtain legal representation in the relevant sense because the evidence does not disclose that attempts have been made and failed. Indeed, on the evidence before me, the inference that I draw is that none have been made.
Dietrich is not authority for the proposition that an accused is unable to receive a fair trial if the accused does not have the representation of their choice (Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370 at 375 and R v Williams [2007] VSC 2; (2006) 16 VR 168 at [58]). It appears, however, that Mr Turnbull seeks precisely this, namely, representation by Mr Littlemore QC. Even if the Court were prepared to assume that Mr Littlemore QC is unavailable due to his ill health to conduct the trial (which the Court cannot do on the evidence presently before it), this does not, of itself, in the absence of taking any steps to secure alternative counsel, result in unfairness. And in any event, Mr Turnbull remains legally represented (see below).
In Warwick (No 64) Garling J noted the following with respect to the issue of whether a represented accused - such as Mr Turnbull - can nevertheless establish that they are without legal representation in the relevant sense (at [31]-[32]):
31. There have been instances where a represented accused has made a successful Dietrich application. In R v Chaouk; Attorney-General for the State Of Victoria (Intervener) and Others [2013] VSCA 99; (2013) 40 VR 356, the provision of a solicitor to assist counsel for only two and a half days of a two and a half week trial was deemed inadequate and the accused's application for a stay was upheld.
32. Although the Court cannot entertain questions as to the seniority and relevant degree of experience of the lawyers representing an accused, questions of competence are not entirely irrelevant to the application of the Dietrich principle. If the only representation available to an accused is manifestly inadequate, it would be appropriate to regard the accused as being, for practical purposes, unrepresented: Milat at 375.
In the absence of any evidence to the contrary, it ought to be assumed that Mr Turnbull's solicitors are capable of appearing for him at the trial.
Mr Turnbull's failure to demonstrate that he was unable to obtain legal representation meant that his application to vacate the trial must be dismissed.
It Was Not Known if Mr Turnbull is Indigent
Relevantly, Garling J in Warwick (No 64) opined as follows (at [25]-[27]):
25. An Accused is regarded as indigent when the value of their assets and income fall "…well short…" of what is required to conduct a trial: R v Macdonald (No 4) [2016] NSWSC 486 at [95]. In order to be regarded as indigent, it should not be considered necessary for a person to charge their home to pay their legal expenses in a criminal trial: R v Joyce [2003] NSWCCA 280 at [23] per Shaw J.
26. Further, it is expected that an Accused will demonstrate they have been refused Legal Aid and other pro bono assistance: Craig v State of SA [1995] HCA 58; (1995) 184 CLR 163.
27. Any effort by the accused to establish that he or she is indigent will be undermined if full financial disclosure is not forthcoming: Macdonald (No.4) at [104] and [111].
Again, due to the paucity of the evidence before the Court, the Court does not accept that Mr Turnbull has discharged his obligation of establishing that he is indigent. Full financial disclosure has not been forthcoming from him. Nor was there any evidence as to "what is required to conduct a trial" of this type given that the s 247K notice is all but complete.
The failure of Mr Turnbull to demonstrate that he is personally indigent and that he personally lacks the capacity to pay for alternative counsel is likewise sufficient to dismiss the notice of motion.
Moreover, given that this was the third application to vacate the hearing, and given that Mr Littlemore QC's incapacity did not arise until early June 2019, that is, only three months prior to the hearing, it may be assumed that much of the preparation for the trial has already been completed. In this context, Ms Lane confirmed that apart from "a few" outstanding affidavits, Mr Turnbull's notice under s 247K of the Criminal Procedure Act was ready to be filed. This means that all of the prosecutor's affidavits have been read, questions of admissibility have been considered, and that Mr Turnbull's defence has been formulated and finalised.
Third, from at least 2 July 2019 Mr Joseph was put on notice of Mr Littlemore QC's likely inability to appear at the hearing and that Ms Lane had handed back her brief. Notwithstanding this information, the notice of motion was not filed until 22 August 2019. No reasonable explanation was given for this delay. The suggestion that Mr Joseph was waiting to ascertain the prosecutor's attitude to vacating the hearing dates in circumstances where the hearing had been vacated twice before, once in the face of the prosecutor's opposition is fanciful, at best. At no point was it disclosed that Mr Joseph spoke directly to Mr Littlemore QC, rather he sought to communicate with him through Ms Lane, who no longer held a brief in the matter. In addition, it was not until 31 July 2019 that Mr Joseph raised the possibility of a consensual vacation with the prosecution. Twice the prosecutor sought sufficient documentation and information from Mr Joseph in order for it to consider its position. It did not receive a response.
Fourth, Mr Joseph's affidavit did not indicate what, if any, steps had been taken to secure alternative counsel. Given that in his affidavit sworn on 21 January 2019 (tendered by the prosecutor), relied upon for the purpose of the second vacation application, Mr Joseph was at pains to detail the steps taken by him to retain alternative counsel, it may be assumed that he knew the central importance of this evidence. Its omission from his latest affidavit gives rise to an almost irresistible inference that no steps have been taken. Although Legal Aid is unlikely to be granted for a breach of s 12 of the Native Vegetation Act where imprisonment cannot be ordered (Source & Resources at [39]), there was no evidence of any application having been made, or indeed any measures taken whatsoever to secure alternative counsel. It may be noted that over four weeks remained to secure such counsel. Counsel need not be senior counsel.
Fourth, in any event, there was no evidence suggesting that Cole & Butler solicitors (of which Mr Joseph is a partner) were unable by reason of competency to represent Mr Turnbull at the hearing. Not all criminal matters in this Court are conducted by counsel. In other words, Mr Turnbull remains legally represented.
Fifth, Mr Joseph did not provide any cogent evidence as to Mr Turnbull's true financial position. Reference was made to, and financial documents were provided in respect of, Qanagco Trust, but the relationship of that entity to Mr Turnbull is not known. Apart from the bald claim by Mr Joseph that Mr Turnbull is impecunious, no documents (for example, recent tax returns or bank account statements) pertaining to the financial affairs of Mr Turnbull were put before the Court; only those of Qanagco Trust.
Furthermore, recent correspondence from ANZ to "The Director" of "Qanagco Pty Ltd" dated 6 August 2019 indicated that a total loan facility of approximately $16,258,989 had been extended to Qanagco (assuming that this company is the same entity as Qanagco Trust) expiring on 30 June 2020. And while Mr Joseph deposed that Mr Turnbull has listed "his farms" for sale, again it was not clear if these are owned by Mr Turnbull or some other entity.
In other words, it is not known if Mr Turnbull is personally indigent and unable to afford to brief alternative counsel. It may be possible, for example, that any fees that were to be used to pay Mr Littlemore QC and Ms Lane (there was no indication that they were acting on a pro bono basis) can be used to secure alternative counsel (although, as at 5 August 2019 such fees appear not to have made their way to Mr Littlemore QC). Mr Joseph's affidavit did not provide information as to what preparation, together with attendant costs, would be wasted if alternative counsel were obtained given that the s 247K notice was to be filed imminently.