Dacich v Director of Public Prosecutions

Court of Appeal (NSW)|2020-08-28|Before: Basten JA, Ms J

Solicitors: Office of Director of Public Prosecutions (Respondent) File Number(s): 2019/302523 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 9 September 2019 Before: Colefax SC DCJ File Number(s): 2015/330425; 2016/9320; 2017/174438

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

The factual and procedural background may be briefly stated. In December 2015 the applicant was convicted in her absence in the Local Court at Campbelltown of 7 offences of dishonestly obtaining a financial advantage by deception, the offences being committed between March 2014 and May 2015. In February 2016 she was convicted of a further four offences (again in her absence) involving dishonestly obtaining a financial advantage by deception and one further offence of publishing false or misleading material with the intention of obtaining a financial advantage. Those offences were committed between August and November 2015. In March 2016 she was sentenced in the Local Court with respect to the 12 offences, receiving a term of imprisonment of 12 months with a non-parole period of 3 months in relation to nine offences and good behaviour bonds for periods of 18 months (to run concurrently) with respect to the remaining three offences.
In November 2016, on appeal to the District Court, Judge Pickering SC suspended the sentences of imprisonment upon the applicant entering a good behaviour bond for a period of 12 months. With respect to two lesser offences, fixed terms of imprisonment for one month were imposed which had been served by the time the appeal was determined.
It is relevant to one aspect of the applicant's case that, prior to obtaining bail on the basis of her appeal to the District Court, she served a period of 1 month and 25 days in custody. Judge Pickering was conscious of that custodial period and suggested that, in the case of breach of the bonds, at which point she would be sentenced to serve her term of imprisonment, there could be an adjustment to any non-parole period to take account of the period already spent in custody.
In August and September 2016 and in March 2017 the applicant committed three further offences involving dishonesty. She was duly charged with those offences and the earlier bonds were called up. On 28 November 2018 she was sentenced in the Local Court at Picton to an aggregate term of imprisonment for the twelve earlier offences and the three new offences of 3 years and 6 months imprisonment with a non-parole period of 2 years. She lodged an appeal to the District Court, the scope of which is in dispute. Suffice it to say that it was dealt with in the District Court as a severity appeal. She was granted bail on 21 December 2018, having served 23 days of her aggregate sentence.
The matters first came before the District Court (Judge Townsden) on 22 February 2019. The applicant was represented by Mr Ramirez. On his application the matter was adjourned for a month to 22 March 2019. On that occasion the matter was listed before Judge Shead; the applicant did not appear although the Court had before it a communication which the judge said "purports to be a medical certificate". The prosecutor was ready to proceed. Because the certificate said she would be "suffering from a mental illness" until 28 March 2019, the matter was stood over to 29 March 2019. On 29 March 2019 the matter was listed before Judge Pickering. The applicant did not attend in the morning. The transcript records that she approached Mr Garretty, a Legal Aid solicitor, at 2pm. She told him that she had lodged a legal aid application two days earlier. The matter was adjourned until 3 May 2019, when it came before Judge Hunt. Mr Grant appeared for the applicant, who did not attend. She sent a message indicating that she had still not received a grant of legal aid; the prosecutor noted that she had been 14 weeks pregnant in November and must be close to delivering a baby. The judge stood the matter over until 12 July 2019, saying "I've tried to build in a little bit of post-natal time and I'm going to give it a must proceed marking." Mr Grant agreed to that procedure.
On 12 July 2019 the matter was listed before Judge O'Brien. Mr Grant was present in court but noted that he did not appear for the applicant, stating that "Legal Aid does not have an open file in this matter." Judge O'Brien stated, contrary to Mr Grant's advice, that the applicant had lodged an appeal to Legal Aid saying, "I've seen a copy of that appeal". On that basis she granted an adjournment to 6 September 2019. (The document before the court will be described further below.)
On 6 September 2019 the matter was listed before Judge Colefax. Further detail will be given of the events on that day in relation to the first ground of appeal, which challenged what was described as the judge's failure to grant an adjournment. In fact the matter did not proceed on that day but was stood over to the following Monday, 9 September 2019, when the judge dealt with it as a severity appeal. The second basis of challenge was that the applicant had in fact appealed from her convictions for offences to which she had pleaded guilty. That issue will be dealt with below.
With respect to the sentence of 3 years 6 months imprisonment, the judge expressed the view that the sentence was "excessive" and that an aggregate sentence of 2 years imprisonment was appropriate. He agreed with the putative individual sentences indicated by the magistrate in relation to the first 12 sentences, but reduced the putative individual sentences for the three fresh offences. He stated that, "having regard to the appellant's psychological condition (assuming it to be as she has said - about which I have some doubts) I make a finding of special circumstances to vary the ratio of the head sentence." He also noted that the appellant had spent a period of 23 days in custody before being granted bail. The appeal was allowed, an aggregate sentence of 2 years was imposed, with a non-parole period of 1 year to date from 17 August 2020. She was then taken into custody.
On 17 October 2019 the applicant filed a summons under Pt 50 of the Uniform Civil Procedure Rules 2005 (NSW) (which would have been relevant to an appeal to the Common Law Division), but which was provided to the Registrar of the Court of Appeal. Despite that, it was described as an appeal under s 52 of the Crime (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"), which provided for an appeal from the Local Court. No such appeal was available following the judgment of the District Court which superseded the Local Court judgment. [2]
Although at that stage there was only a patently incompetent appeal on file, on 18 December 2019 the applicant was granted bail. That bail has been continued and remains on foot. It was a condition of her bail that the applicant attend at court for the hearing of the summons. Given that she lives at Campbelltown and would be required to travel to the city by public transport, the Registrar indicated that the court would treat her attendance remotely via telephone or AVL as compliance with that condition of her bail for the purposes of the hearing of the summons.

Ground 1 - refusal of adjournment application

Ground 1 alleged that Judge Colefax, in determining the adjournment application on 6 September 2019, failed to afford the applicant procedural fairness. It was said that a fair-minded lay observer might reasonably apprehend that he might not have brought an impartial mind to the resolution of the questions required to be decided on an application for adjournment under s 57 of the Legal Aid Commission Act 1979 (NSW). The particulars alleged that the judge failed to give the applicant an opportunity to give evidence and be heard on relevant matters, failed to address matters raised by the applicant and made an adverse finding with respect to s 57(b) without supporting evidence.
The written submissions appeared to rely on various particulars relating to the conduct of the hearing both as grounds for identifying a reasonable apprehension of bias and as separate grounds of failure to accord procedural fairness. The events of 6 September will be considered both individually and cumulatively.
First, it is necessary to identify the basis of the claim for another adjournment, which was the existence of an application to a Legal Aid Review Committee to appeal a refusal of legal aid. An applicant has a qualified right to an adjournment where a refusal of legal aid is under review, pursuant to s 57 of the Legal Aid Commission Act, which reads as follows: 57 Adjournment of certain proceedings Where it appears to a court or tribunal, on any information before it - (a) that a party to any proceedings before the court or tribunal - (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
The transcript of the District Court hearing on Friday, 6 September 2019 reveals that when the matter was first called neither the appellant nor any legal representative acting on her behalf was present. The judge revoked the appellant's bail and directed that a warrant for her arrest be issued. The matter was then stood in the list.
A note prepared in the court Registry recorded a telephone call from the applicant advising that she was "travelling from Central Coast and with heavy traffic she is running late by two hours."
The next entry on the transcript revealed an appearance by Mr Cupitt for the applicant. At that stage she was present in court. It appears from the exchange that the appearance occurred after lunch, Mr Cupitt stating: "If I can just indicate to your Honour that I was not previously instructed in this matter. I received instructions in this matter only this afternoon after your Honour had made the warrant. So my knowledge in relation to the circumstances around this matter is limited."
The judge then expressed his frustration that the matter was in the list for the sixth time and that the applicant had failed to appear on three occasions. He withdrew the warrant for her arrest but said he would proceed to hear the appeal. Mr Cupitt then stated that she was awaiting a legal aid review committee appeal. The judge asked, "Where's the evidence of that?" The applicant then intervened, stating: "I didn't bring it today with me, I have it at home. I lodged the appeal on 12 July. It was listed - the documents were listed in my last email to the court. I am awaiting a legal aid appeal, I've made the application. I have only instructed Mr Cruze (as said) today because I was desperate. I don't have the money to pay a solicitor. I paid him for his time today. I've got psychologists reports awaiting, I have a custody battle with all four of my children. Please, even if you just give me until Monday I can have all those documents ready and I will be here first thing Monday morning. CUPITT: If your Honour would stand the matter in the list for a brief moment I can make inquiries with Legal Aid to attempt to ascertain some documentation in support of this. APPELLANT: I have it home. I can have I back here in 20 minutes. I will retain Mr Cruze [if] need be to have the appeal heard on Monday. I will pay him right now for it. HIS HONOUR: The matter will stand in the list for 15 minutes to permit you Mr Cupitt and Ms Chan [the prosecutor] to make some inquiries to verify whether or not there has been an appeal lodged against the refusal of legal aid. The refusal of legal aid being because of the conduct of your client in relation to various retainers that were held by Legal Aid solicitors. The prospects of the appeal, from what I know of this matter, that is to say the Legal Aid Review Committee appeal do not seem good. But the matter can stand in the list so that there can be some verification as to what a person who is convicted of a series of offences of dishonesty [says] can be verified. Half past 3."
Following the adjournment Mr Cupitt stated: "Your Honour, I've made some inquiries with the Legal Aid Appeals Review Commission via the telephone line. They have been unable to locate anything in her name or in another name that she uses. I am instructed that she has paperwork at home evidencing that it has been sent in via post. I'm instructed on 12 July, but I can't take it any further. Your Honour, my client would be willing to give evidence in the box to that effect. But that's the highest I can place it. HIS HONOUR: I wouldn't waste the walk, a person who is convicted of dishonesty uncorroborated would not have much weight. APPELLANT: Can I just say something? CUPITT: I appreciate that your Honour."
The judge then obtained a chronology from the prosecutor and copies of "the severity appeal bundles" which contained details of the appeal listings and the reasons for the various adjournments.
The judge then delivered a judgment covering four pages with respect to the adjournment application. He set out the history which included reference to the applicant lodging an application for legal aid on 27 March 2019, two days before the third listing of the matter. Legal aid was withdrawn on 3 May 2019. The judge noted that she had left a message with the Registry "saying she had chicken pox and that she was appealing the withdrawal of legal aid." He noted that inquiries had been made by the prosecutor and Mr Cupitt and that the Legal Aid Review Committee had no record of receiving an appeal. He stated: "I am not persuaded on the balance of probabilities that any appeal has been filed with the Legal Aid Review Committee. I am persuaded, however, that this is yet another 'dodge' by the appellant to seek to avoid facing up to her criminality, which she has been avoiding for some years. Furthermore, even if there had been satisfactory proof that an appeal had been lodged, I would have turned my attention to s 57 of the Legal Aid Commission Act. The section reads as follows: … If it had been proved that there was a competent appeal before the committee, I would not have been persuaded that it was bona fide. I am not persuaded that it is not frivolous. In fact, I am persuaded that it is vexatious and intended to improperly hinder the conduct of this appeal. It is yet another step that this offender has taken for years to avoid the consequences of her dishonest conduct. I shall not, in those circumstances, adjourn the proceedings to allow any alleged appeal to the Legal Aid Review Committee to be processed."
The judge then stood the matter over to 10am on Monday, 9 September. It may be noted that that was effectively the adjournment that the applicant had sought in order to provide documentation in support of her application.
Following delivery of those reasons, the judge noted that she would need to re-enter her bail because the previous bail had been revoked. He continued: "Theoretically Mr Cupitt, because of the proven two breaches of bail she should go into custody now until Monday morning. Theoretically that should have happened. … It's only because there's a mention of children. But that will not necessarily stay my hand on Monday. Appropriate steps should be taken by the appellant to take into account the very real possibility that she will be going to gaol on Monday night. She should take those steps over the weekend just in case that eventuality comes to pass Mr Cupitt. I don't know anything about the case. I've formed no firm opinion. But someone else thought it was appropriate for a custodial sentence and more than one person, three judicial officers have looked at her conduct and have thought it warrants some form of imprisonment. Two of those judicial officers have thought it was warranted for fulltime custody so therefore, as a matter of precaution, your client should take steps in the event that the appeal on Monday does not go as she wishes."
The challenge to the "decision" made on 6 September 2019 is without substance. The purpose of the adjournment was to allow the applicant to obtain legal representation. She had applied for and been refused legal aid. She had no evidence of having lodged an appeal, so as to invoke a qualified right to an adjournment pursuant to s 57 of the Legal Aid Commission Act. However she had evidence at home, she claimed, to support her assertion. In fact the matter was adjourned on the Friday until the following Monday, when she appeared with a privately funded solicitor. No mention was made of a Legal Aid Review Committee appeal. She did not produce the copy of the application which she claimed to have, and of which the Legal Aid Commission had denied knowledge to her solicitor on the Friday. Instead, she obtained a psychologist's report, and representation, for the purposes of pursing her severity appeal. In short, she had the opportunity to pursue her adjournment application and did not avail herself of that opportunity.
It is not clear that the document before Judge O'Brien on 12 July 2019 was before Judge Colefax on 6 September. The document seen by Judge O'Brien was part of the court file (which was before this Court annexed to the affidavit of Ms Dacich's former solicitor). However, it was a photocopy of one page of an appeal form, unsigned and undated, which indicated the next court date was 12 July 2019 and provided earnings for the financial year 2018-2019. It may be inferred that it was prepared shortly before 12 July. Whether it was ever lodged is not apparent. The information that Legal Aid did not have an open file with respect to her, provided information which contradicted her claim to have lodged any appeal, prior to 6 September. An alternative explanation was that by 6 September the appeal had been determined and dismissed. When she appeared before Judge Colefax on 6 September, she was not able to satisfy the judge that there was any appeal outstanding, or that it was not frivolous or vexatious and not lodged with an intention to delay the proceedings.
In any event, as ground 1 merely sought to review a decision which resulted in the proceedings being adjourned, the attempt to challenge that decision was misconceived. If the applicant had a basis for a further adjournment, she did not pursue it on Monday 9 September, when the matter was back before the court. If she had no reasonable basis for an adjournment, the fact that the hearing proceeded on the Monday was not a legitimate ground of complaint.
The other particulars of the ground related to the manner in which the judge dealt with the matters raised in s 57(b). However, to the extent an adjournment was refused, it was refused on the ground that the applicant had failed to establish that a review application had been lodged with the Legal Aid Commission. The further observations of the judge as to whether or not he would have been satisfied as to other aspects of s 57(b), (as to which the onus lay on the applicant) were not determinative, although they might have forewarned her of matters she would need to address had she obtained evidence of having lodged the relevant review application. Given the applicant's failure to appear to pursue her appeal on three occasions on which it was listed, together with the late attendance on 6 September, and conduct apparently in breach of her bail conditions, the judge was entitled to be sceptical of her application for an adjournment. It could not be said that a fair minded lay observer, knowing the procedural history, might have reasonably apprehended that the judge might not bring an impartial and unprejudiced mind, either to the resolution of the adjournment application, or to the appeal against severity of sentence. [3]
Ground 1 must be rejected.

Hearing on 9 September 2019

The applicant appeared by herself on Monday morning but noted that she had instructed a solicitor, who was not able to be there until later in the day. The following exchange occurred: "HIS HONOUR: I'd like the name of the solicitor whom you have retained over the weekend please. And what time would it be convenient for Mr [Rajeev] for me to list this matter which has been in the list now on eight occasions? APPELLANT: 2pm. He said if you would stand the matter down until after lunch. HIS HONOUR: The matter is stood in the list until 2pm. APPELLANT: Thank you. HIS HONOUR: Your bail is continued until that time. Is that convenient to you, Ms Chan?"
The matter was called again at 3.22pm, when a solicitor, Mr Rajeev, appeared for the applicant. The prosecutor tendered a copy of an appeal bundle and two presentence reports produced in 2016 that were said to provide "the offender's explanation for some of the offending." She also tendered a further affidavit which was said to be referred to in a psychologist's report prepared for the applicant, of which the prosecutor had a copy. The prosecutor stated she was unsure whether there would be an application under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("Forensic Provisions Act"). Mr Rajeev then answered a question from the judge as to how long the appeal would take, stating that his submissions would take some 20 minutes. He said he was "considering" a s 32 application but, however, "not on the basis of just the psychologist's report. But then I think we finish the sentencing today and have a day further for the s 32 if the need be, because I have no instructions on that yet." The following exchange then took place: "HIS HONOUR: I don't understand you, Mr Rajeev. RAJEEV: Your Honour, being a diversion of the regime under s 32, I would like - HIS HONOUR: Do you understand what s 32 means? RAJEEV: Yes. HIS HONOUR: I didn't understand your submission. RAJEEV: I would like to just go to sentence for submissions on the legal aspects on background and the mitigating factors and then go for sentencing. HIS HONOUR: The appeal is going to be determined this afternoon. RAJEEV: Yes. HIS HONOUR: I have made that abundantly clear. There are no adjournments for any purpose. RAJEEV: I know, your Honour, and I don't want to seek an adjournment because I know it's the fifth time before the Court."
As will be noted shortly, this exchange was said to demonstrate that Mr Rajeev was incompetent because he did not understand how s 32 of the Forensic Provisions Act worked. (The section provides an alternative to the imposition of a sentence with respect to a person who is cognitively impaired, suffering from a mental illness or a mental condition for which treatment is available in a mental health facility, but who is not a mentally ill person.)
The better reading of this exchange is that the judge understood Mr Rajeev to be saying that he was indeed considering seeking an order under s 32, but did not have adequate material to do so at that time. A reading of the psychologist's report available in court would suggest that this was a judgment well open to Mr Rajeev. However, the judge, understandably, heard intimations of an incipient adjournment application. Mr Rajeev, foreseeing what was coming, fudged. The judge then made it clear that no adjournment would be allowed.
Following this interruption, initiated by the judge, the prosecutor completed the tender of the material in her case. Mr Rajeev tendered two character references and then commenced to address on sentence. In the course of submissions he referred to "the medical report", to which his Honour responded that there was no medical evidence before the Court at all. Mr Rajeev noted that the applicant had been referred to a psychologist "over the weekend" and sought leave to tender the psychologist's report. Leave was granted and the report was admitted.
The psychological report revealed that the applicant was assessed on 8 September 2019, which was also the date of the report. That was the Sunday before the Monday hearing of the appeal. It was said to have been prepared for a firm of solicitors who, so far as the court records reveal, had no prior involvement in the criminal proceedings. It may be noted that on the previous Friday afternoon applicant had told the Court, "I've got psychologists reports awaiting". If in fact she had any psychologist's report on that Friday, it was not the report tendered on the Monday. The promised documentation evidencing an appeal to a legal aid review committee did not eventuate either.
Mr Rajeev then made a submission that "the offending behaviour is directly related to her mental condition and that there is a nexus between what has happened to her during her childhood days which became a full blown problem when she was pushed into financial difficulties and all these things, your Honour." Mr Rajeev continued: "I will accept that the offending behaviour was quite serious in nature. She has accepted remorse and has taken responsibility for her actions, your Honour, and she's willing to undergo the full treatment under the treatment plan and has also owned responsibility in that she has agreed to pay the full amount of compensation to the victims by the end of this month, that is 30 September 2019. Your Honour, for further clarifications I would request in your Honour is now satisfied I will be happy for Ms Dacich to go on the witness stand, your Honour."
What ensued was the subject of an allegation of procedural unfairness, so it is necessary to set out the exchange in full: "HIS HONOUR: You told me 20 minutes. It's quarter to 4. RAJEEV: Just a couple of questions your Honour, just - HIS HONOUR: The Crown has a right to cross-examine. RAJEEV: Yes, I know that. I'm aware, your Honour. I've been instructed but that's fine. HIS HONOUR: I asked you whether the evidence was complete - RAJEEV: Your Honour, it is not really required but in case that's required. That's fine, your Honour. I'd be happy without it. That's fine. That's my submissions."
Ms Chan commenced submissions for the prosecution submitting that "this offending is too serious to be appropriately dealt with under the Mental Health (Forensic Provisions) Act", to which the judge said, "I don't need to hear you further on that subject." The further submissions were largely uncontroversial. Ms Chan stated with respect to Mr Rajeev's final submission: "I note my friend has claimed that the offender is extremely remorseful, but I have confirmed with the officer-in-charge that no compensation has been paid to any of the victims despite the original compensation order being made back in March 2016. Your Honour, the offender's actions speak louder than her words." Mr Rajeev made brief submissions in reply.

Grounds 2, 3 and 4 - conviction appeal

The premise of grounds 2, 3 and 4 was that the applicant was seeking to pursue an appeal against both conviction and sentence when she appeared before Judge Colefax on 9 September 2019. There is no doubt that both Judge Colefax and the prosecutor understood that the matter was a severity appeal in relation to the sentence. The question is whether that view was erroneous, on a basis which revealed jurisdictional error.
The written submissions prepared by counsel on behalf of the applicant did not engage with the factual premise underlying this claim; however, that is the essential starting point for consideration. The proceedings in the Local Court which were the subject of the appeal to the District Court involved four charges laid by police on 10 June 2017. On 5 July 2018 the applicant entered pleas of guilty to the offences; the bonds and suspended sentences imposed for the earlier offences were then called up. The matter was adjourned for sentence to 28 November 2018. On that day the applicant was legally represented. She was sentenced to the aggregate term which was the subject of the appeal to the District Court. The following day (29 November) she lodged a notice of appeal to the District Court identifying the offences as "(i) breach s 12 bond; (ii) gain financial advantage by deception and (iii) breach s 9 bond."
The notice of appeal was in a standard form with three possibilities, namely a conviction appeal, a sentence appeal and an appeal from an apprehended violence order. The instructions directed the person seeking to appeal to cross out whichever was not applicable. The applicant crossed out only the third, leaving conviction and sentence unmarked. It was therefore correct to say that she originally sought to appeal from both conviction and sentence in relation to the matters which had been identified.
However, the right of appeal conferred by s 11(1) of the Appeal and Review Act does not extend to convictions following a plea of guilty: s 11(1A). An appeal is available pursuant to leave in the circumstances identified in the following provisions: 12 Appeals requiring leave (1) Any person who has been convicted by the Local Court in the person's absence or following the person's plea of guilty may appeal to the District Court against the conviction, but only by leave of the District Court. … (3) An application for leave to appeal must be made - (a) within 28 days after (but not before) the sentence imposed after the relevant conviction is made, or (b) if an application for annulment of the conviction has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part. 13 Late applications for leave to appeal (1) An appeal to the District Court may be made - … (b) by any person by whom an application for leave to appeal could be made under section 12, but for section 12 (3), but only by leave of the District Court. (2) An application for leave to appeal must be made within 3 months after the relevant conviction or sentence is made or imposed, or the relevant application under section 4 is refused, as the case may require.
When the matter first came before the District Court (Townsden DCJ) on 22 February 2019 the applicant was represented by Mr Ramirez. The applicant was present. Mr Ramirez sought an adjournment for four weeks to obtain a psychological report and "some other material". The prosecutor did not object. The following exchange then took place: "HIS HONOUR: That's a severity, is it, appeal? RAMIREZ: Your Honour, it's listed for severity currently. Ms Dacich has advised me that she's recently read evidence from her matter and that she has now flagged … that she may wish to amend that or seek leave to have it amended to an all grounds appeal, your Honour. I will need to speak with her. I will need to get the evidence which Legal Aid doesn't have and she will need advice around that. HIS HONOUR: I will put it in for severity in four weeks and for mention to confirm it's proceeding on that basis." Mr Ramirez was clearly conscious that there was no right of appeal against conviction and that no application for leave to appeal had been lodged.
Section 14 of the Appeal and Review Act provides: 14 Lodgment of appeals and applications for leave to appeal (1) An appeal under section 11 or 11A is to be made by lodging a written notice of appeal with - (a) a registrar of the Local Court, or (b) the person in charge of the place where the appellant is in custody. (2) A notice of appeal must state the general grounds of appeal. (3) An application for leave to appeal under section 12 or 13 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with - (a) a registrar of the Local Court, or (b) the person in charge of the place where the appellant is in custody. (4) An application for leave to appeal must state the general grounds of the application and, in the case of an application under section 13, must state the reasons why an appeal or application for leave to appeal was not made within the time allowed by section 11, 11A or 12, as the case may be. (5) On the granting of leave to appeal, an appeal is taken to have been made in accordance with the written notice of appeal referred to in subsection (3).
It was clear that the notice of appeal did not purport to be an application for leave to appeal and stated no grounds for the application. Unless an application for leave to appeal was lodged, the purported conviction appeal was apt to be struck out. While an application for leave had not been made within 28 days of sentencing, the existence of a timely notice of appeal might well have provided a sufficient basis to extend time. However, time could not be extended beyond three months, a period which expired on 28 February 2019, that is, six days after the hearing before Judge Townsden. No such application for leave was lodged.
The written submissions in this Court prepared by counsel on behalf of the applicant described the notice of appeal as a "defective, but not invalid, application for leave to appeal against conviction in relation to convictions entered following her pleas of guilty". [4] The submissions thus treated the notice of appeal as if it were an application for leave to appeal against conviction, and further stated that it could not be dismissed without the court granting leave to the appellant to withdraw the application: Appeal and Review Act, s 67(1). However, the requirement for leave to withdraw an application should be understood to depend upon the existence of a valid application. In the absence of any application, s 67(1) was not engaged.
To describe the proposed appeal against conviction as a "defective … application for leave to appeal against conviction" was to ignore the context and purpose of the requirements with respect to a leave application. Although on an appeal to the District Court from the Local Court the person charged is the moving party, the effect of the statutory scheme in Pt 3 of the Appeal and Review Act is to require the prosecution to prove the offence beyond reasonable doubt, as if it were a trial at first instance. Nevertheless, the appeal is required to be conducted "on the basis of evidence given in the original Local Court proceedings": s 18(1). Fresh evidence may only be given by leave of the District Court if the court is satisfied that it is "in the interests of justice that fresh evidence be given": s 18(2). It is possible to obtain a direction from the District Court requiring a person to attend and give evidence but, in a case such as the present, such a direction may only be given if the court is satisfied that "there are substantial reasons why, in the interests of justice, the person should attend and give evidence": s 19(1)(b). Further, an application for such a direction requires service of advance notice on the other parties within a period specified by the District Court: s 19(2). The expectation is that the appeal will be either wholly or substantially conducted on a transcript of the evidence in the Local Court, each party being entitled to a free copy of the transcript: s 18(3).
Where a person has entered a plea of guilty in the Local Court, there will have been no trial and no evidence taken with respect to the elements of the offending. The circumstances in which a person convicted on a plea of guilty will be able to withdraw the plea and insist on a trial in the District Court will be limited. Given this context and the structure of Pt 3, it is not possible to characterise a notice of appeal as a "defective" application for leave to appeal.
It follows that complaints as to the primary judge's failure to address the "conviction appeal", or permit submissions with respect to the conviction appeal, were misconceived. There was no conviction appeal. Accordingly grounds 2-4 must be rejected.
A further point may be made in relation to the submissions in support of these grounds. The submissions contained an implicit suggestion that the applicant was deprived of some entitlement or expectation with respect to the nature of the proceedings in the District Court. While this was not a relevant matter, it was also factually unfounded. First, the applicant was present in court on 22 February 2019 when the fact that it was listed as a severity appeal was explained by her lawyer who noted that "she may wish to amend that or seek leave to have it amended to an all grounds appeal". Secondly, when she belatedly appeared on 29 March 2019, Mr Garretty explained that it was an appeal of a custodial sentence. It was stood over for hearing on that basis.
When she attended on 6 September, it was clear that the matter was to be dealt with as a severity appeal and the prosecutor handed up what she described as "the severity appeal bundles". The judge gave a judgment referring to an appeal against "the alleged severity" of the sentence. She was represented on 9 September when the severity appeal was heard. In addition, the matter was also referred to as a severity appeal on the three occasions when she failed to appear. An inquiry at any stage over the six months of listings, either of a solicitor who appeared for her, or of the prosecutor, would have confirmed that the matter was listed as a severity appeal. When it was eventually heard on 9 September 2019, it was heard as a severity appeal.

Ground 5 - severity appeal - Forensic Provisions Act

Ground 5 in the amended summons alleged that the judge failed to afford the applicant procedural fairness in relation to her appeal against sentence, which was particularised as the lack of a fair hearing because of the incompetence of her solicitor. The primary basis of the supposed incompetence was the failure to "take adequate instructions to advance the applicant's interests in relation to a diversion under s 32 of the [Forensic Provisions Act]." The particulars also alleged a failure to "adduce evidence" on the appeal.
The written submissions on behalf of the applicant were cursory, alleging that the solicitor's "incompetence was obvious on many fronts" and his representation of the applicant "fell below the standard expected of practitioners experienced in criminal law".
These statements made no attempt to isolate the basis of the alleged incompetence, identify any instructions which may have been given, or consider the circumstances in which the solicitor was instructed. To summarise the history set out above, having been listed for Friday 6 September, the applicant did not appear when the matter was called and her bail was withdrawn and a warrant issued for her arrest. The matter was adjourned to the following Monday. The solicitor who appeared on the Friday afternoon for the applicant did not appear on the Monday. The applicant found a new solicitor over the weekend. He had other commitments on the Monday and did not appear for her until Monday afternoon. It is apparent that, in the course of the weekend, the applicant had obtained a psychologist's report, apparently in support of an order dismissing the charge and discharging the applicant pursuant to s 32 of the Forensic Provisions Act on the basis that she was suffering from a mental condition but was not a mentally ill person. As has been noted, the report was prepared on the Sunday before the hearing. The report was in the materials provided to this Court. It is apparent from the transcript that the solicitor had access to the report but did not consider it would provide a basis for an application under s 32. There is no reason to doubt the soundness of that judgment. Otherwise, there is no evidence before the Court as to when the solicitor was instructed, what instructions he was given, nor as to whether he was instructed to call the applicant to give evidence.
There is, in short, no evidential basis for the proposition that the solicitor appearing for the applicant on 9 September 2019 was incompetent or failed to take steps which, on an objective assessment of the case, could not have been omitted, in the exercise of professional judgment, by a reasonably competent solicitor. It follows that ground 5 must be rejected.
Before leaving that ground, it is proper to note that the written submissions for the applicant assumed that the legal basis for the complaint was that incompetent representation, which raised a significant possibility that the sentence outcome was affected, constituted a denial of procedural fairness and hence jurisdictional error. The decision of the Court of Criminal Appeal in Brown v R [5] was cited as support for that proposition.
There was a large question raised by this submission which does not need to be determined, given that no factual basis was established which would engage the principle. However, it is proper to express doubt that Brown stands for the asserted principle. The relevant passage in the reasoning in Brown at [38] relied upon a lengthy extract from the reasoning of Beech-Jones J in Tsiakas v R. [6] Like Brown, Tsiakas was a sentence appeal which involved allegations of incompetence of counsel. The issue under consideration was the legal basis upon which the court could review a sentence pursuant to s 6 of the Criminal Appeal Act 1912 (NSW). The general principles are set out in House v The King [7] and do not encompass incompetence of counsel. As was noted in Tsiakas, the Court of Criminal Appeal, in a number of cases, has treated the language of s 6(1), dealing with appeals against conviction, referring to "a miscarriage of justice", as applicable to a sentence appeal. Beech-Jones J said of those cases (none of which used the language of procedural fairness): "[43] … In effect, these decisions appear to treat a conclusion that a miscarriage of justice of this kind was occasioned by the conduct of an offender's legal representative as equivalent to a finding that there was a denial of procedural fairness. The affording of procedural fairness is an 'immutable characteristic' of a court, including a court exercising a discretion to impose a sentence. [8] The establishment of a breach of procedural fairness in the course of sentencing proceedings is a basis for interfering with the exercise of the power to impose a sentence."
It is a large step from a statement identifying a basis for exercising a statutory right of appeal against sentence to the conclusion that a court commits jurisdictional error if it sentences a person who has failed to obtain competent legal representation. Neither Tsiakas nor Brown provide authority for the latter proposition. It is extremely doubtful that the District Court, hearing an appeal against severity of sentence imposed by the Local Court, lacks jurisdiction to determine the appeal in the absence of competent representation of the appellant. It would involve a large extension of the limited principle, based on the right to a fair trial, accepted in Dietrich v The Queen. [9]

Grounds 6 and 7 - pre-sentence custody

The final two grounds in the amended summons alleged a failure on the part of the District Court to give effect to a mandatory requirement in s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") to take into account "any time for which the offender has been held in custody in relation to the offence". The period in question was not entirely clear. The written submissions for the applicant relied upon a statement by Judge Pickering, who imposed the 12 month bonds in respect of the suspended sentences, that: "I could adjust, if she ever breached the suspended sentence, the non-parole period to take into account the time that she has already served".
The submission in this Court was that Judge Colefax failed to take that time served into account. However, there was some lack of clarity as to how long that period was. With respect to three matters, Judge Pickering imposed a fixed term sentence of 1 month to date from 25 February 2016, which he noted had already been served so that those sentences had come to an end. Yet in the written submissions, that period was included as part of the period relating to the offences for which she was currently being sentenced.
The factual premise on which the ground is based has not been made out. First, there is no reason to suppose that Judge Colefax was not cognisant of the fact that no non-parole period had been fixed for the suspended sentence imposed by Judge Pickering in 2016. Secondly, the coversheet for the severity appeal prepared by the DPP, which became exhibit A on the sentence appeal, included a note of the pre-sentence custody. Although the typed form had contained the information "pre-sentence: 53 days", that entry had been crossed out and a handwritten notation, "ONLY 23 days in custody referable to current proceedings" inserted in the relevant box. That notation was consistent with 30 days having been attributable to the sentences which had been completed prior to the sentencing in the District Court in 2016.
Further, Judge Colefax expressly noted "that the appellant did spend a period of 23 days in custody before being granted bail at some point." He continued: "Taking into account the 23 days already spent in custody, the non-parole period of 1 year will date from 17 August 2019 and will expire on 16 August 2020."
In short, there is no doubt that the judge applied the principle set out in s 24(a) of the Sentencing Procedure Act. He was correct to do so. Whether the correct number of days was taken into account is a factual matter which, if there were error, would not constitute any form of jurisdictional error. Accordingly there is no need to determine whether the calculation was correct or otherwise.
Grounds 6 and 7 must be rejected.

Further adjournment application

As has been noted in an accompanying judgment, at the outset of the hearing in this court the applicant sought an adjournment of the hearing of the proceedings, which was refused. Following submissions by counsel for the Director, the applicant again sought an opportunity to provide further written submissions and a possible amendment to the summons, asserting (without evidence) that she had obtained agreement from counsel to assist if the transcript could be provided to him. That opportunity was granted and a copy of the transcript was provided to the applicant, as directed by the Court. Although no further submissions were received from the applicant in the time allowed, an application for further time was received and granted. No submissions were received within the extended time.

Conclusions

For the reasons identified above, the application to review the judgment and orders of the District Court of 6 and 9 September 2019 must be rejected. The summons will be dismissed with costs.
The applicant spent a period in custody from the date of the orders of the District Court (9 September 2019) until 23 October 2019, when she was granted bail by the Supreme Court pending determination of these proceedings. She has therefore served 45 days of the sentence imposed by Judge Colefax. The period during which she has been at liberty on bail pending determination of these proceedings does not count as part of any term of imprisonment under the applicant's sentence: Supreme Court Act, s 69A(3). The Court has power to order when the original sentence of imprisonment is to recommence. The sentence will recommence on the day on which she returns to custody.
The Court makes the following orders: 1. Dismiss the amended summons for judicial review filed on 15 July 2020. 2. Order that the applicant pay the costs of the Director of Public Prosecutions (NSW) in relation to these proceedings. 3. Direct that the sentence imposed in the District Court on 9 September 2019 recommence upon the return of the applicant to custody.
MEAGHER JA: I have had the benefit of reading in draft the judgment of Basten JA, with which I agree.
SIMPSON AJA: I agree with Basten JA.

Endnotes

District Court Act 1973 (NSW), s 176; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10].
Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8.
Johnson v Johnson (2001) 201 CLR 488; [2000] HCA 48 at [11].
Written submissions, par 57.
[2018] NSWCCA 257.
[2015] NSWCCA 187.
(1936) 55 CLR 499 at 505; [1936] HCA 40.
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [194] (Gageler J).
(1992) 177 CLR 292 at 311-312 (Mason CJ and McHugh J); 330-331 (Deane J); [1992] HCA 57. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2020

Crime (Appeal and Review) Act 2001(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

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