MK v R

Court of Criminal Appeal (NSW)|2018-05-28|Before: Macfarlan JA, Johnson J, Adamson J, Mr J, MacFarlan JA

Judgment

MACFARLAN JA: I invite Johnson J to deliver the first judgment.
JOHNSON J: The Applicant, MK, seeks leave to appeal under s.5F Criminal Appeal Act 1912 against the refusal by a District Court Judge to adjourn a trial pending in that Court.

The Subject Trial

The Applicant is to stand trial in the Sydney District Court on charges of break, enter and steal contrary to s.112(1)(a) Crimes Act 1900 (with an alternative count of receiving contrary to s.188(1) Crimes Act 1900) and a further charge of driving a motor vehicle knowing that police officers were in pursuit and not stopping the vehicle and driving the vehicle in a manner dangerous to others contrary to s.51B(1) Crimes Act 1900.
The Crown case in respect of each of these alleged offences is that, on 25 June 2016, the Applicant was in possession of stolen goods from a break and enter committed less than three hours before together with evidence of call charge records which are said to implicate the Applicant. The Crown alleges that the stolen goods were located in the Applicant's vehicle following an extensive police pursuit through the eastern suburbs of Sydney where the Applicant was arrested after he eventually crashed.
The estimate for this trial is five days and there are 10 witnesses to be called as agreed between the parties.

Other Trials Involving the Applicant

The Applicant has two other trials listed this year to proceed in the Sydney District Court.
Listed to commence on 25 June 2018 is a trial upon an indictment containing 28 counts alleging sexual and other offences on the part of the Applicant.
Listed to commence on 30 July 2018 is a trial upon an indictment containing 42 counts alleging sexual and other offences on the part of the Applicant.
The adjournment decision under challenge related to the first trial only and not the second and third trials.
The Application Book was prepared and provided to the Court for the purpose of today's hearing. It included the judgment of 18 May 2018 which is under challenge and other material. At the hearing of the application today, counsel for the Applicant sought to rely upon additional evidence. The Court refused the Applicant leave to rely upon additional material with the exception of the transcripts of 17, 18, 21 and 22 May 2018: s.5F(4) Criminal Appeal Act 1912.

Application for Leave to Appeal Under s.5F Criminal Appeal Act 1912

The principles to be applied by this Court where leave is sought to appeal against an order refusing to adjourn a trial were summarised in KN v R [2017] NSWCCA 249 at [5]-[8]: "5 In Slotboom v R [2013] NSWCCA 18 this Court, at [6]-[7], confirmed the principles that apply in determining whether to grant leave to appeal under s 5F(3) as stated in Agius v R (2011) 80 NSWLR 486; [2011] NSWCCA 119 and in R v Alexandroaia (1995) 81 A Crim R 286. 6 In Agius, the Court said at [10]: 'This Court has said that leave will only be granted where the decision which is the subject of the s 5F application is attended with sufficient doubt so as to warrant the matter being argued on appeal (R v Steffan (1993) 30 NSWLR 633 at 644-645), or where the interests of justice otherwise require the intervention of the Court at this stage of the proceedings (R v Matovski (1989) 15 NSWLR 720 at 723; R v Dinh [2000] NSWCCA 536; (2000) 120 A Crim R 42 at 48 [34]). The Court should bear in mind the undesirability of interrupting criminal proceedings by the bringing of a s 5F application: R v Einfeld [2008] NSWCCA 215; (2008) 71 NSWLR 31 at 37 [23]-[25].' 7 Where the application relates to the discretionary decision of a trial Judge refusing to adjourn a criminal trial the governing principle, as stated in Alexandroaia at 290, is as follows: 'Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge. An appeal based upon the judge's refusal to grant an adjournment is thus one against the exercise of a discretion, and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion. There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown 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. An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. 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.' (citations omitted) 8 As is apparent from this passage, the relevant test is whether error has been demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40."
In approaching the present application for leave, it is appropriate to keep in mind, as well, the strong public interest that, once fixed for hearing upon the basis that the parties were ready to proceed, a criminal trial should ordinarily proceed with expedition: Slotboom v R [2013] NSWCCA 18 at [36].

The Proposed Grounds of Appeal

By a Second Further Amended Application for Leave to Appeal filed in Court today, the Applicant relies upon the following grounds of appeal: 1. Ground 1 - The pretrial Judge erred by declining to exercise the discretion and to grant the Applicant an adjournment of the relevant proceedings pursuant to s.40 Criminal Procedure Act 1986 until the hearing and determination of an application of permanent stay on the grounds of an abuse of process. 2. Ground 2 - The pretrial Judge erred by declining to exercise the discretion and grant the Applicant orders for pretrial disclosure pursuant to s.141 Criminal Procedure Act 1986 and/or a proper pretrial hearing pursuant to s.139(2) Criminal Procedure Act and a reasonable opportunity to present evidence and arguments in support of the Applicant's application for a permanent stay of the relevant proceedings and by failing to set down a timetable for pretrial disclosure pursuant to s.141 Criminal Procedure Act 1986. 3. Ground 3 - The pretrial Judge erred by acting on a wrong principle, allowing extraneous or irrelevant matters to affect the determination of the matter, by mistaking the facts or taking into account irrelevant considerations and by ultimately finding the Applicant did not raise a prima facie case for an adjournment of the relevant proceedings on the grounds of an abuse of process.

The Adjournment Application and Decision Under Challenge

The Applicant was arrested and charged with the offences which are the subject of the first trial on 25 June 2016. He was committed for trial from the Local Court to the District Court on 19 January 2017. On 30 June 2017, the matter was listed for trial in the Sydney District Court commencing on 21 May 2018.
The genesis of the application for a permanent stay and the application to adjourn the trial appears to have arisen out of the location by the Applicant on 26 February 2018 of a surveillance device in an air-conditioning duct in the ceiling of a room at Parklea Correctional Centre.
Following this, the Applicant's legal representatives made application to the District Court which came before her Honour Judge Syme, as the Criminal List Judge, at various times on 15, 16 and 17 May 2018.
Her Honour heard evidence from a number of persons including Mr John Greenwood, the person who had installed the device on 23 February 2018, Mr Roderick Casimir, Legal Manager for the GEO Group Australia Pty Limited (a private corporation which runs Parklea Correctional Centre), Mr Artie Shahho, a computer analyst retained for the Applicant and the Applicant himself.
In addition to the oral evidence, a number of documents were tendered at the hearing before her Honour Judge Syme together with the surveillance device which had been placed in the air-conditioning unit which became Exhibit A.
Reference was made as well to statements obtained by police from a prison informer, Witness A, in April and July 2017. The Crown indicated that Witness A was not to be called at the first trial.
Evidence also related to a USB stick which had been taken from the Applicant by correctional authorities. It was said that this USB stick contained the Applicant's instructions to his legal representatives.
Put shortly, on the adjournment application, it was submitted for the Applicant that there was a real question as to when the surveillance device was installed and that there was a prima facie case that the Applicant's legal visits in that room had in fact been recorded since the beginning of 2017 and had been the subject of audio recordings which allegedly had been disseminated to Corrective Services NSW and prosecutorial bodies.
Her Honour delivered her judgment on the afternoon of 18 May 2018 refusing the application for an adjournment of the first trial.
After outlining the relevant evidence in relation to the surveillance device, her Honour noted that there was no evidence that there was any surveillance device installed in the computer room prior to 23 February 2018 nor was there evidence that any recording device was installed at the time of any legal visit, the last legal visit having taken place on 11 February 2018.
Her Honour noted that the Applicant had stated that he saw a microphone attached to the hidden surveillance device. However, in his evidence on the application, the Applicant was unable to describe what it looked like. The item removed from the ceiling had been produced to the Court. It was the evidence of Mr Greenwood that the camera was not capable of recording audio and that no microphone was installed.
Her Honour noted that the Applicant was suggesting that there was a form of conspiracy to record legal visits between himself and his legal adviser for the purpose of undermining the defence of the various charges that he faces. Her Honour found that the evidence only supported that a temporary camera was placed in the relevant room on 23 February 2018 and there was no evidence that the Applicant had a legal visit in that room after that date.
Her Honour stated that, despite the item removed from the ceiling being before the Court, there was no evidence that a microphone was attached to it. To the extent that there was a recording tendered which related to 26 February 2018, her Honour noted that there was no evidence that there was audio on that recording.
With respect to Witness A, her Honour noted that the statements of Witness A had been made months before the discovery of the recording device in February 2018. In any event, her Honour observed that the Crown did not propose to rely on Witness A for the purpose of the first trial.
With respect to the Applicant's complaints concerning the taking of a USB stick from him and the asserted inability as a consequence to prepare for the first trial, her Honour noted that there was no suggestion that the Applicant's solicitor was at any time without the brief.
In any event, a hard copy of the brief together with a USB stick containing the entire brief concerning the first trial were re-served on the solicitor for the Applicant on 16 May 2018 for the purpose of direct delivery to the Applicant. Her Honour accepted that the Applicant had ample opportunity to access the brief for the purpose of the first trial.
Her Honour was not satisfied there was any injustice in the first trial commencing on 21 May 2018 (as then scheduled) and refused the adjournment application.
On 22 May 2018, there was a further application made to her Honour for an adjournment which was declined. A third application was made to his Honour Acting Judge Charteris SC, the allocated trial Judge, on 23 May 2018. His Honour declined to vacate the trial, but noted that a s.5F application had been lodged and as a consequence of the associated unavailability of the Applicant's counsel, the first trial was adjourned until 28 May 2018.
The first trial is now scheduled to commence tomorrow, 29 May 2018.

Application for Leave to Appeal

Detailed submissions were made in writing and it is not necessary to repeat them in this judgment. Further arguments were contained in the Second Further Amended Application for Leave to Appeal. It was submitted for the Applicant that her Honour had not acted in accordance with the requirements of procedural fairness in the way in which the application proceeded and was determined. It was submitted as well that her Honour had erred in findings made concerning the surveillance device and associated issues.
The Crown submitted that no proper foundation had been established for the Court to grant leave to appeal with respect to the refusal of the adjournment.
Her Honour conducted a hearing which extended over parts of three days whilst her Honour exercised the demanding functions of Criminal List Judge in the Sydney District Court. Her Honour observed (judgment, page 1) that, in order for the adjournment application to be properly ventilated, the Court "allowed each party to call as much evidence as they sought to with the clear understanding that the focus would be on" the adjournment application with respect to the first trial. Although counsel for the Applicant disagreed with this statement, it can be said that her Honour undertook an extensive hearing which involved oral and documentary evidence and submissions with respect to it. The Applicant's counsel submitted that her Honour should have allowed even more time with more persons to be called (presumably by the Crown) for cross-examination. No error has been demonstrated in this respect.
Evidence was given and, after hearing submissions, her Honour made findings with respect to the evidence and refused the adjournment.
The first trial of the Applicant is a relatively short one involving what appear to be straightforward issues. It is difficult to see how the issues agitated on this application could bear on that trial or give rise to a realistic foundation for a permanent stay application with respect to that trial. The Applicant has access to the full brief of evidence against him with respect to that trial. The Crown does not propose to call Witness A at that trial.
As her Honour made clear, the decision made on 18 May 2018 did not relate to the scheduled second and third trials.
It has not been demonstrated that her Honour failed to accord the Applicant procedural fairness at the hearing. Indeed, the Court made substantial allowances for evidence to be called from a number of witnesses over several days and for submissions to be made before the Court ruled on the application.
The Applicant seeks to challenge a discretionary decision refusing an adjournment of the first trial. Applying the principles referred to earlier in this judgment, no basis has been demonstrated for this Court to intervene.
The submissions advanced for the Applicant appeared to invite this Court to enter upon a factual rehearing of the matter. It was the case that her Honour saw the witnesses and heard the evidence.
The Applicant has failed to demonstrate that any of the findings made by her Honour were not open on the evidence adduced at that hearing. It has not been demonstrated that her Honour erred in principle in any respect.
I do not consider that the Applicant is assisted by the complaint concerning the USB stick and its contents. The matters raised are speculative and did not require her Honour to extend even further what had already been a lengthy pretrial hearing.
To the extent that the Applicant contends that, if relief is obtained on a basis with respect to the second and/or third trials, this could, in some way, relate back to the first trial, that is an entirely speculative proposition and not one upon which this Court should act on this application for leave.

Conclusion

I am not persuaded that the matters argued on this application warrant a grant of leave nor am I satisfied that the interests of justice otherwise require the intervention of the Court at this stage of the proceedings.
I propose that leave to appeal should be refused.
MACFARLAN JA: I agree with Johnson J.
ADAMSON J: I agree with Johnson J that leave to appeal ought be refused for the reasons given by his Honour.
MACFARLAN JA: The Court's order is therefore that leave to appeal is refused.

Amendments 01 July 2021 - Publication restriction removed. 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: 01 July 2021

At a glance

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Judgment (9 paragraphs)

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Cases Cited (11)

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