Refusal of adjournment and legal representation
52The decision of Nicholson DCJ to refuse the adjournment application was discretionary. The grounds upon which such decisions may be challenged on an appeal (which is not the present application) are confined to those identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. Thus on an appeal, it would have been necessary to show that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion, it is under a duty to review the order made: R v Alexandroaia (1995) 81 A Crim R 286 at 290.
53Counsel for Mr Jamal contended that the refusal of an adjournment was a denial of procedural fairness, because Mr Jamal was not given a reasonable chance to present his case on appeal to the District Court with legal representation.
54It may be accepted that it is basic to the rules of procedural fairness that an accused must be given a reasonable chance to present his or her case, which necessarily includes a reasonable opportunity to prepare that case before being called upon to present it. The appearance that justice has been done is particularly important in a criminal trial, but nonetheless some limitation is required to be placed upon the right of an accused to delay his or her trial in order to prepare his case: R v Alexandroaia at 289.
55The same observation may be made in relation to an adjournment to obtain legal representation. There is no general test however, as to where the line should be drawn in every case involving an adjournment application: "each case must really depend upon its own circumstances": R v Alexandroaia at 289.
56It is clear from the transcript of 1 June 2012, that in rejecting the adjournment application, Nicholson DCJ attached primary significance to the timing and context of the application, the utility of an adjournment and the unlikelihood that a legal representative could meaningfully assist Mr Jamal with his submissions based on his Honour's assessment of the transcript and exhibits from the Local Court. In this regard, the following observations can be made.
57First, as to timing and context of the application, the nature of a conviction appeal was a significant factor for his Honour to take into account in refusing the adjournment. Having earlier refused the application to admit further evidence, his Honour was required to determine the appeal based on the evidence from the Local Court, where Mr Jamal was represented. In those circumstances, an adjournment to obtain legal representation was not as significant as it may have been in a different circumstance, such as if it was an application by an unrepresented person prior to a trial by jury. His Honour was entitled to take into account in refusing to grant the adjournment to seek legal representation, that the evidence on which the appeal was to be determined involved a hearing in the Local Court where Mr Jamal was legally represented when the actual evidence against him was called, and his counsel in the Local Court had an opportunity to cross-examine the victim and make submissions on his behalf.
58Secondly, Nicholson DCJ was entitled to regard the application as being significantly late in the proceedings and this was a relevant factor in refusing the application.
59Thirdly, Nicholson DCJ was entitled to take into account the utility of any adjournment application being granted. In this regard, Mr Jamal had not taken any steps to obtain legal representation after the first day of the hearing on 23 March 2012, other than apparently speaking with the Law Society shortly before the date of the adjourned hearing. He told Nicholson DCJ on 1 June 2012 that he could not afford legal representation. No complaint is made to this Court concerning his Honour's observation that it was unlikely that an adjournment would result in Mr Jamal ever being able to fund a legal representative. It is also relevant that Mr Jamal did not seek an adjournment at the beginning of the adjourned hearing on 1 June 2012, as apparently suggested in the letter from the Law Society. He freely chose to continue to represent himself on that day. He only sought an adjournment near the end of the hearing of his appeal, after his application to tender further evidence had been unsuccessful and his Honour was about to give his decision on the appeal.
60Fourthly, Nicholson DCJ was entitled to take the view that any legal representative could not meaningfully assist Mr Jamal with his submissions, based on his Honour's assessment of the transcript from the Local Court.
61The only submission advanced by counsel for Mr Jamal, in this Court was the possibility that a legal representative could have advanced better arguments in support of the application to tender further evidence. This turns on whether the further evidence was relevant and the sufficiency of any explanation for why it had not been sought to be tendered in the Local Court, when Mr Jamal was legally represented. For the reasons given below, there is no merit in relation to the complaint concerning the rejection of the further evidence on appeal.
62In my view, no error has been shown in Nicholson DCJ's exercise of discretion to refuse the adjournment application. Furthermore, there is no substance in Mr Jamal's complaint that the refusal of the adjournment application involved a denial of procedural fairness. No injustice has been demonstrated in this regard.