Meagher JA, Harrison J, Button J, Ierace JJ, McTiernan JJ
Catchwords
[1995] HCA 58.
Croke v R [2020] NSWCCA 8
House v The King (1936) 55 CLR 499
[1998] HCA 27
Jones v R (1997) 191 CLR 439 at 454
[1997] HCA 12
Category: Principal judgment
Parties: Tony Haddad (applicant)
Regina (respondent)
Representation: Counsel:
Source
Original judgment source is linked above.
Catchwords
[1995] HCA 58.
Croke v R [2020] NSWCCA 8
House v The King (1936) 55 CLR 499[1998] HCA 27
Jones v R (1997) 191 CLR 439 at 454[1997] HCA 12
Category: Principal judgment
Parties: Tony Haddad (applicant)
Regina (respondent)
Representation: Counsel:
Judgment (2 paragraphs)
[1]
Judgment
THE COURT: The applicant, Mr Haddad, and a Mr Kahil have been charged with conspiring with each other, Paul Roumi and others to import a commercial quantity of a substance, intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely safrole, contrary to Criminal Code (Cth), ss 11.5 and 307.11(1). That offence is alleged to have been committed between October 2010 and August 2011 and Mr Haddad was first charged with a like offence on 21 September 2011 (the current charge being laid in April 2015).
On 1 April 2019 the trial of the applicant and Mr Kahil was listed for hearing in the District Court before King SC DCJ for three weeks commencing on 2 March 2020. That date was fixed taking account of the availability of all counsel and "to provide a firm date for the commencement of the trial". On 24 February 2020 the applicant applied to vacate that hearing date, on the basis that he no longer had legal representation in the proceedings. That application was heard by King SC DCJ and rejected on 26 February 2020. The applicant appeared in person and relied on an affidavit sworn on 14 February 2020, which was prepared with legal assistance. He was also cross-examined. On 27 February 2020 the applicant sought leave under Criminal Appeal Act 1912 (NSW), s 5F to appeal from the order dismissing that application. On 28 February this Court (Harrison, R A Hulme and Ierace JJ) granted a temporary stay of the proceedings in the District Court until 4pm on 6 March 2020 to enable the present application to be heard.
On 6 March 2020 at the conclusion of argument this Court made the following orders in relation to that application:
1. Grant leave to appeal the District Court order of 26 February 2020.
2. Dismiss the appeal.
3. Discharge the orders made by this Court on 28 February 2020.
4. Reserve reasons for decision.
Those reasons follow. This Court could only interfere with the trial judge's exercise of discretion in refusing the application for an adjournment of the proceedings if error was established in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40; Croke v R [2020] NSWCCA 8 at [29]. In the language of Dixon, Evatt and McTiernan JJ in House v The King at 505, error will be established if the "judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration". Furthermore if the result embodied in the order is "upon the facts… unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion" notwithstanding that the nature of the error may not be discoverable. In such a case the exercise of the discretion is reviewed on the ground that a "substantial wrong has in fact occurred".
The applicant relies on the following grounds in support of his proposed appeal from the challenged order:
1. His Honour erred in concluding that the applicant had been at fault a) in the absence of evidence that he had failed to comply with the terms of the costs agreement in respect of the trial proceedings, as opposed to the proposed appeal proceedings, b) where the applicant's solicitor withdrew for health reasons, and c) in the absence of evidence that the applicant had made an inadequate attempt to ensure representation for his trial;
2. His Honour erred in failing to take into account the applicant's mental health in determining the degree to which the fairness of any trial would be affected by a lack of legal representation;
3. His Honour erred in finding, in the absence of evidence, that witnesses' memories would fade, if the trial were to be vacated;
4. His Honour erred in failing to consider the adjournment of the trial for a brief period to determine whether legal representation could, in fact, be secured;
5. His Honour erred in finding that it was in the interests of the applicant that the trial proceed without further delay; and
6. His Honour's decision not to vacate the trial was unreasonable in all of the circumstances.
At the commencement of the hearing the applicant was given leave under s 5F(4) to adduce "fresh" evidence, namely a report of Dr Stephen Allnutt, forensic psychiatrist, dated 5 March 2020. That report followed a consultation with the applicant and a meeting with his parents. As to the applicant's fitness to represent himself, Dr Allnutt said in that report:
In his current emotional state, he would be unable to meaningfully interact with the Court if he self-represented. I do not believe he would be able to apply himself to the legal process and I do not believe that his self-representation would be helpful for the Court or himself. …
When I saw him on this occasion, and considering [his] emotional state at the time I saw him, I would regard him as unfit to stand trial for the short term to medium term because I did not believe he would have the capacity to follow proceedings, make a defence [or] communicate with counsel due to his emotionality which would interfere with his cognitive ability to apply his mind to these tasks. I am of the view however that this emotionality is likely to be transient and will likely diminish if legal representation is allowed. …
Before considering these grounds of appeal and that further evidence, it is necessary to refer briefly to the chronology of the proceedings and circumstances leading to the making of the present application.
The committal proceedings against Mr Haddad commenced in July 2013, and those involving Mr Kahil commenced in August 2014. Eventually those accused were committed for trial in June 2015. Mr Roumi entered a plea to the conspiracy count in September 2014 and was sentenced in April 2016. Thereafter the date for trial of the remaining accused was fixed and vacated on a number of occasions, before being allocated to King SC DCJ for commencement on 20 March 2019.
In July 2016 a question was raised as to Mr Haddad's fitness to be tried. Following a hearing addressing that question on 5 April 2018 Traill DCJ was satisfied that he was unfit to be tried. There was a further fitness hearing before her Honour in February 2019 and on 26 February 2019 Traill DCJ concluded that the applicant was then fit to be tried although "he may need a number of breaks in Court to have matters explained to him during the course of the trial and… there is a possibility he may become unfit during the course of the trial". In those hearings psychiatric evidence was tendered by the Crown - Dr Andrew Ellis - and by the applicant - Dr Allnutt. At the time of the second fitness hearing there remained a difference of opinion between them as to whether or not Mr Haddad had a psychotic illness or was delusional. However both agreed that he was fit to stand trial and give instructions to his lawyers, assuming he was represented.
In March 2019, and following an adjournment application made on behalf of Mr Haddad because of medical issues, King SC DCJ heard argument on the admissibility of the evidence of a Mr Ming given in the committal proceedings, in circumstance where he was absent from Australia and no longer available to give evidence. On 22 July 2019 his Honour ruled that evidence was admissible notwithstanding Mr Ming's absence. His Honour then proceeded to hear an application of Mr Haddad for a permanent stay of the proceedings. Argument on that application concluded on 26 July 2019, his Honour then reserving judgment. In those hearings and applications Mr Haddad was represented by Mr Lloyd QC and Dr Hickie, who were instructed by Mr John Hajje of Hajje and Associates. The judgment dismissing that application was delivered on 24 January 2020.
As to the circumstances in which that firm and those counsel ceased to act for Mr Haddad, his evidence was that before January 2020 he had paid $230,000 in legal costs in respect of the defence of the conspiracy charge and application for the permanent stay, and that he had committed to paying further amounts of $50,000 and $170,000. The former amount was to be for the costs of any appeal from an adverse determination of the stay application and was to be paid by 15 January 2020. The latter was on account of the remaining costs of the trial and was to be paid by 27 January 2020. Mr Haddad's evidence was that he overlooked the making of the first payment and that as a result was informed on 16 January 2020 that his barristers had "withdrawn from the trial due to non-payment of fees". On 21 January 2020 Mr Haddad met with Mr Hajje who said that he would "get the barristers back in the matter". Mr Haddad says that he also asked Mr Hajje at that time "to help me set up a new team if that counsel won't return". The evidence does not reveal what efforts were made to obtain other counsel either at that time, or at any time up to 14 February when Mr Haddad's affidavit was sworn. On 4 February Mr Haddad was advised by Mr Hajje "that [Mr Hajje] must also withdraw from [Mr Haddad's] matter for health reasons".
Subsequently on 7 February 2020 Mr Haddad retained Birchgrove Legal to act for him in an appeal from the rejection of his permanent stay application. Mr Barrow of counsel was retained to advise and act in relation to that appeal. A letter from Birchgrove Legal to Mr Barrow of 12 February 2020 records that they had been instructed "to urgently appeal the decision" on the stay application. Mr Haddad's affidavit asserts that firm "refused to take on my trial matter because they did not have enough time to prepare". It also asserts that firm had not "received my full brief and continue to make inquiries for [its] collection". However an email from Hajje and Associates dated 27 February 2020 asserted that Mr Haddad's copy of the Crown "brief has been available for collection since 11 February 2020" and that although part was collected "the remainder of his brief is still yet to be collected".
Turning to the trial judge's ex tempore reasons, after noting that as at 26 February no appeal of the permanent stay application had been lodged, the trial judge made the following observations and findings:
…The predicament now for the offender in my view is one created by his failure to put his legal team in funds at the time that had been requested.
I do not accept that he somehow overlooked the need to deposit $50,000 on 21 January 2020 for the purpose of a stay appeal should he receive advice that it was appropriate.
The information before the Court in relation to the offender's ability to fund the trial indicates that he is not an indigent person as referred to in Dietrich v The Queen (1992) 177 CLR 29.
It was communicated to the applicant at the latest by 17 January 2020 that Mr Lloyd and Dr Hickie would not be appearing for him because they were returning the brief. He has indicated that he has otherwise contacted Mr Hament Dhanji SC and Birchgrove Legal in relation to obtaining representation.
…However there is no indication that Mr Barrow, barrister [retained only in relation to an appeal from the refusal of a permanent stay application], was asked to do anything more than advise on a stay appeal.
The trial judge then considered the likely complexity of the trial in the light of the preliminary matters that had been dealt with in early 2019. He concluded that "the trial will actually be within a relatively narrow ambit". He noted that the two accused had signed a statement of agreed facts in March 2019, with the result that "a substantial amount of evidence that would have otherwise occupied a jury has been resolved". The Crown's estimate was that its case would involve calling approximately seven witnesses and occupy five to seven hearing days, including the time occasioned by the "playing of the recorded committal evidence and reading of the materials relating to Mr Ming". Taking these matters into account the Crown considered that the trial would finish in two to three weeks "at the outside".
Having earlier referred to the affidavit evidence including documents in relation to Mr Haddad's "state of health in the past, but not current" and specifically to the psychiatric reports of Dr Ellis dated 12 February 2019 and of Dr Allnutt dated 13 February 2019 the trial judge considered Mr Haddad's claim "that he had not read the [Crown] brief and … does not understand what it is all about". His Honour did not accept that evidence, pointing to the evidence of Dr Ellis given in relation to his being fit to be tried. He concluded that "the applicant is in fact well aware of the nature of the Crown case against him, and of his response to it, that is, what his response to it would be at trial".
Finally, the primary judge emphasised that the proceedings concerned two accused in relation to a charge first laid in September 2011. He considered "witnesses will forget what it is they might say and it is in the interests of each of the accused that it proceed rather than that there be any further delay, which would be again, inordinate." His Honour had earlier noted that despite communications directed to Mr Kahil, or at least to his representatives, there was no appearance on his behalf in respect of the application which affected him as a co-accused.
The trial judge's dispositive reasoning was as follows:
In the circumstances, in my view it is the applicant who has placed himself in the current situation. He is not, as I have said, impecunious, and in my view has made an inadequate attempt to ensure that he is represented at trial. In those circumstances the application to vacate the trial date is refused…
We turn now to the grounds of appeal.
As to ground 1: Referring to the circumstances in which senior and junior counsel withdrew, both from the prospective appeal proceedings and the trial proceedings in mid-January 2020, and to the withdrawal of Mr Hajje, apparently "for health reasons" in early February 2020, the applicant submits that his delay of one day in making the payment of $50,000, whether deliberate or otherwise, "does not rise to the level of gratuitous or unreasonable conduct" in the sense referred to by Olsson J in the passage of his judgment in the Full Court cited by the High Court in Craig v State of South Australia (1995) 184 CLR 163 at 184; [1995] HCA 58.
However this submission does not address the focus of the trial judge's conclusion which was that the applicant had made "an inadequate attempt to ensure that he is represented at trial". Accepting that the applicant was not impecunious, the trial judge focussed on whether he had taken reasonable steps to obtain legal representation in circumstances where his existing legal team had withdrawn. The applicant was aware by 20 January 2020 that he was required to brief new counsel. His existing counsel had made their position clear on 17 January, including by then refusing to attend a meeting with Mr Hajje scheduled for 21 January. The applicant's evidence was that he asked Mr Hajje "to help me set up a new team"; that he sent emails to his previous barristers on 4 and 5 February 2020; and that since then he made "numerous attempts to find new legal representatives". At the same time he retained Birchgrove Legal and Mr Barrow to advise and act on any appeal from the refusal of the permanent stay.
Although the applicant had legal assistance from Birchgrove Legal in relation to the preparation of this evidence, it does not descend to any detail about the inquiries made or steps taken by him, or on his behalf, to brief other counsel to act in the trial commencing on 2 March. In the absence of its doing so it could not show whether he had taken reasonable steps to secure other legal representation.
That being the position, the following observation of the Western Australian Court of Appeal in Szulc v Chief Executive Officer, Department of Environment and Conservation (No 4) [2012] WASCA 143 at [48] is directly on point. Having found that the stay application made by Mr Szulc must fail as there was no evidence demonstrating that he was "indigent", the Court identified another reason why his application must fail:
A person cannot be said to be deprived of a fair trial by reason of lack of legal representation if he does not take reasonable steps to obtain it: Karounos v R (1995) 63 SASR 451 at 457. The appellant was the only person in a position to say what endeavours he had made and why those endeavours had been unsuccessful. His explanation of what he had done in that regard fell well short of demonstrating that he had taken reasonable steps."
Contrary to the suggestion made by para (c) of ground 1, it was for the applicant to show that he had not "by his gratuitous and unreasonable conduct been the… author of his own misfortune" (per Olsson J in the passage extracted by the High Court in Craig at 184). The trial judge did not err in concluding that he had not done so. This ground should be rejected.
As to ground 2: In our view the trial judge did give appropriate consideration to the applicant's mental health in determining his application. His Honour noted, as was the case, that there was evidence in relation to Mr Haddad's "state of health in the past, but not current". Having previously recorded that in February 2019 Traill DCJ had found him fit to be tried, his Honour then considered the psychiatric evidence, noting that Dr Ellis and Dr Allnutt had considered the applicant to be fit for trial, and concluding that the evidence indicated that the applicant was "in fact well aware of the nature of the Crown case against him and of his response to it". This ground, which asserts that the trial judge "failed to take the impact of the applicant's mental health into account whatsoever", is not made out.
The admission of the "fresh evidence" does not affect this conclusion because it remains open to the applicant to raise the question of his unfitness to be tried in the circumstances addressed by Dr Allnutt's second report. That matter will then properly fall for determination by the District Court in accordance with the Mental Health (Forensic Provisions) Act 1990 (NSW), s 10. Indeed, the possibility of such a further fitness hearing was expressly raised by Traill DCJ in her Honour's judgment of 26 February 2019; "there is a possibility he may become unfit during the course of the trial. His fitness may have to be re-evaluated by the trial judge during the course of the trial".
As to ground 3: It is submitted that there was no evidence before the trial judge that the recollection of the few witnesses in the prosecution case would be adversely affected if the trial were to be adjourned. Accordingly it is submitted that the trial judge erred in proceeding on the basis that "witnesses will forget what it is that they might say and it is in the interests of each of the accused that [the trial] proceed rather than that there be any further delay".
As the Crown submits the trial judge did not require evidence to justify his proceeding on that basis. It is sufficient to refer first to the observations of Gummow and Hayne JJ in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 where it was said at [29] that:
Delays in the courts are a major cause of disquiet not only among those who resort to the courts but also among judges and all others associated with the courts. Delay will almost always impede the proper disposition of any case that does not come to trial promptly. Memories fade; records may be lost. The impediments are many, varied and obvious. Those impediments may be overcome but their presence is an added burden for both the litigants and the court that must try the case.
and secondly, to the following comments of Gaudron, McHugh and Gummow JJ in Jones v R (1997) 191 CLR 439 at 454; [1997] HCA 12:
An innocent person's ability to recall the events which took place at the time of an alleged incident is undoubtedly impeded by any extensive delay in the making of the complaint against him or her. As Mahoney ACJ said in the Court of Criminal Appeal, delay is "a matter of considerable importance to the person accused", and has the effect of relegating the accused from giving an account of what actually happened to "what must have happened"…
The Crown indicated that it would call seven witnesses. Accepting that the events to which the proceedings relate happened almost ten years ago the trial judge was well justified in proceeding on the basis that additional delay may further adversely affect the recollection of one or more of those witnesses.
As to ground 4: it is submitted that his Honour failed to consider the adjournment of the trial for a "brief period" to determine whether legal representation could, in fact, be secured. The error asserted by this ground is not made out. There was no discrete application made to his Honour for an adjournment for a "brief period", as opposed to the more general application that the trial date be vacated. Secondly, the trial judge did consider that possibility, concluding that the likely "inordinate" delay occasioned as a consequence was a further reason to refuse the application.
As to ground 5: It is submitted that his Honour erred in finding that it was in the "interests of the applicant" that the trial proceed without further delay. It is suggested that this finding was not justified in circumstances where the trial would or might proceed without him having legal representation. As the Crown responds, his Honour's statement must be read in context. It refers to the inordinate delay evident in the history of the proceedings and the adverse effect that was having or likely to have on both the applicant and his co-accused with respect both to the lack of resolution of the proceedings and the capacity to conduct them at some later point in time. It does not bespeak any error, indeed it was wholly justified in the face of the unacceptable delay of over 8 years since the applicant was charged.
As to ground 6: It is asserted that the decision not to vacate the trial was "unreasonable in all of the circumstances". No further or separate argument is made in support of this ground which should also be dismissed. The "fresh" evidence did not affect that outcome because any question as to the applicant's fitness to be tried was for the District Court to determine before proceeding, as expeditiously as possible, with the trial.
In the circumstances it was appropriate that the applicant have leave to appeal. However the appeal must be dismissed so as to permit the matter to proceed in the District Court.
[2]
Amendments
02 August 2024 - Publication restriction removed by Court order.
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Decision last updated: 02 August 2024