R v Alexandroaia

Court of Criminal Appeal (NSW)|2003-03-17|Before: Santow JA, Buddin J, Smart AJ, Carruthers AJ

The applicant stands charged under s.61J of the Crimes Act 1900 of 6 counts of aggravated sexual assault. The circumstances of aggravation alleged are that immediately beforehand he threatened to inflict actual bodily harm on the complainant by means of an offensive weapon. The offences allegedly occurred on 11 February 2002. Each carries a maximum penalty of 20 years imprisonment. The Crown Case

These allegations were made by the Crown: (i) The applicant and the complainant, a mature lady aged 37 years at the time of the offence with three daughters, two of whom lived with her, had lived together on and off for about six years. It was an unusual and tempestuous relationship. At times they lived in separate houses with the applicant spending nights at her house. The relationship was allegedly characterised by many arguments and occasional violence. The complainant had moved home from time to time. The applicant had endeavoured to move in with the complainant who had become increasingly reluctant to allow him to stay at her home. He grew more possessive and she wanted to end the relationship. (ii) On the morning of 11 February 2002 she was walking to work, having left her home about 7am. After she had gone some distance the applicant pulled up alongside her in his car. He offered her a lift to work which she refused. He told her that he would give her a lift to work and leave. He opened the front passenger door and she got in and shut the door. He drove off. His attitude changed once she was in the car. He was angry with her. He questioned her about a man she had met at a party on the previous Saturday night and demanded to know whether she had sex with the man. When she told him she had the applicant became abusive and wanted details of the man. The applicant did not drive her to work. She protested and tried to get out of the car but the door was locked. He grabbed hold of her and threatened her, telling her that he had a gun and not to scream or he would shoot her. She became scared and began to cry. (iii) She said that he drove the car to a forest area. On stopping the car he raped her. He allowed her to relieve herself. A little later he raped her again. He drove her away in the car and, while driving, again threatened to shoot her, saying that the gun had a silencer on it and that nobody would hear anything. He continued to drive around, during which time he again threatened her with the gun and threatened to blow his brains out, making her watch as he did so. Whilst driving along the applicant forced one of his fingers into the complainant's vagina, moving his finger about. (iv) The car was driven to another spot where the applicant again raped her. There was some conversation during which the applicant described the gun he had. After this interlude he raped her. The applicant struggled to break free. After she was overpowered and some further conversation the applicant struck himself with a length of pipe and suggested that she hit him with it. He drove back to her home, telling her on the way that if the police came for him, he would kill himself. She went inside and immediately called the police.

The crimes alleged were very grave and, if proved, the applicant faced the prospect of lengthy sentences.

The applicant's current trial started on 26 February 2003 in Taree District Court and continued on 27 and 28 February 2003, 3, 4 and 5 March 2003. Up to that stage the applicant had been represented by Mr. Robert Cavanagh of counsel instructed by Mr Michael Crozier of Walker Smith, Solicitors, Taree.

On the night of 5 March 2003 the applicant telephoned Ms. D. I. Mc Kern, a solicitor, and told her that he was worried about a possible conflict of interest on the part of Mr. Crozier who was acting for him and who (or his firm) had previously acted for witnesses for the Crown. The applicant also told her of what he believed were deficiencies in the way Messrs. Cavanagh and Crozier were conducting his defence.

On the morning of 6 March 2003 while the applicant was at the offices of Mr. Crozier he raised with him and Mr. Cavanagh the question of the conflict of interest of Mr. Crozier. He replied that his secretary was onto the Law Society to see where he stood. Mr. Cavanagh remarked, "If Mick stands down I will have to stand down too". The applicant said that he was asked to wait in another room while Messrs. Crozier and Cavanagh variously spoke to the Law Society, the Bar Association and the Crown.

Mr. Gilfillan was taken to Taree Court House by Mr. Crozier shortly before 10am. While waiting in a room at the court the applicant was advised by Mr. Crozier, "the jury was given leave to 1pm so that we can sort out this issue".

Prior to court commencing on 6 March 2003 counsel for the applicant and the Crown Prosecutor saw the judge in chambers and counsel for the applicant informed the judge of "potential ethical difficulty" for himself and his instructing solicitor.

Ms. Mc Kern arrived at the Court House and advised Mr. Crozier, "I am only here in respect to the conflict of interest situation". Mr. Crozier advised that he and Mr Cavanagh were having discussions with the Crown.

A little later that morning Messrs. Cavanagh and Crozier, Ms Mc Kern the applicant and probably the applicant's father went to Mr. Crozier's office at his behest. At that office Mr. Crozier said to Ms. Mc Kern, the applicant and his father, "please wait here (in the waiting room) whilst Robert and I have further discussions with the Law Society, Bar Association and the Crown". After some time Mr. Crozier asked them to come into his office and they did so. Ms. Mc Kern said that Mr Crozier said to Mr. Cavanagh "Due to the conflict of interest, I will have to stand down". Mr Cavanagh said, "I will also be standing down". Ms. Mc Kern said conversation to the following effect took place: Mc Kern: "It appears you have a conflict and Rickie is concerned that it will affect how the trial goes. I believe that in the circumstances you need to withdraw as the issue was raised last year" (she showed Mr. Crozier a letter written by the applicant). Crozier: "It is not correct that it was raised earlier you should check that out. The first I knew about it was this week". Mc Kern: "I will check it out but that is what I have been told". Cavanagh: "That's right but if Rick has lost confidence in me then I can no longer act and Rick will have to withdraw his instructions".

Ms. Mc Kern said that Mr. Cavanagh then presented a piece of paper to the applicant to sign withdrawing instructions and asked Ms. Mc Kern to witness the applicant's signature. She did so.

Ms. Mc Kern said that Mr. Crozier said words to the effect of, "we have been onto the Crown and they are seeking instructions from someone in Sydney. There are some witnesses which they will not be calling including Emerton and Plane and the Crown is seeking to obtain authorities from witnesses being called to exclude any privilege I may have". The privilege was that of the witnesses and that is probably what was meant.

In a room separate from Messrs. Crozier and Cavanagh the applicant expressed his fear to Ms. Mc Kern that even if the Crown was able to obtain the witnesses' consent Mr. Crozier may not be able to act in his best interests. He was particularly worried about the potential witnesses named Alec Minns and Janeen Maddelina.

Ms. Mc Kern said that when the applicant, his father and she returned to meet with Mr. Crozier he asked the applicant to sign a piece of paper in reference to his conflict in having acted for Minns and Madelina. Ms. Mc Kern neither read nor was asked to read that piece of paper.

On the court resuming at 1pm on Thursday 6 March 2003 and in the absence of the jury Mr. Cavanagh sought leave to withdraw on behalf of himself and his instructing solicitor.

"…in chambers this morning both counsel told me that there was some, at least potential ethical difficulty confronting Mr. Cavanagh and his instructing solicitor and the matter was stood in the list whilst that area of possible difficulty was explored, if not resolved".

Mr. Cavanagh replied: "The matter from the Crown's perspective has been attempted to be resolved by speaking to a number of the witnesses, as I understand it, to lift any privilege that they may have in respect of my instructing solicitor. There still, however, remains a confidence issue on behalf of Mr Gilfillan in respect of those witnesses and representation of him by myself and my instructing solicitor". Mr. Cavanagh stated that their instructions had been withdrawn. They were then granted leave to withdraw and withdrew.

I interpolate that it is not easy to see how a waiver of privilege would assist in the resolution of the conflict of interest.

Ms. Mc Kern advised that she was at court in connection with the ethical problems or potential conflict of interest problems. She added "…our client was somewhat concerned that even if they [some Crown witnesses] did give the appropriate authority to Mr. Crozier to discuss it there would still be a conflict and on that basis he felt that wouldn't be the right thing to proceed with Mr. Crozier and Mr. Cavanagh".

Ms. Mc Kern went on to indicate that there were other aspects of the conduct of his case by Messrs. Cavanagh and Crozier with which the applicant was not satisfied. She submitted that to continue the trial would entail a grave miscarriage of justice.

The judge immediately responded, "Well I'm against you on that Ms. Mc Kern". The judge expressed his reluctance to waste 7 days and have the complainant put through four days of evidence again if he could possibly avoid it.

The judge stated that he was going to stand the trial over to 10 March 2003 and told Ms. Mc Kern that he expected her to retain counsel and that he would hear counsel's application, if any, that day. The judge had in mind an application for a further short adjournment to enable counsel to become familiar with the brief. The judge foreshadowed that in the most extreme circumstances he would require the applicant to go on unrepresented.

The Crown Prosecutor stated that it had been intended to have "a Basha day to-day" in respect of some further witnesses whom the Crown intended to call but who had not provided statements for the committal proceedings.

The judge adjourned the matter to Friday 7 March 2003 for mention to enable Ms. Mc Kern to report progress. On that day she explained that despite strenuous efforts on her part she had not been able to obtain counsel who was available and prepared to take the brief on behalf of the applicant at such short notice. That is not surprising. She had contacted a large number of barristers and barristers' clerks. She explained that she was only representing the applicant in respect to the conflict and ethical issue.

When on 7 March 2003 Ms. Mc Kern stated that the applicant was left without representation "due to the fact that his representatives have had to withdraw as a matter of conflict of interest" the judge responded: "I didn't understand the situation to be that they withdrew because of a conflict of interest. I understood that the conflict of interest had been raised, that that was in the process of being resolved by the Crown seeking some assurances from the witnesses, but, regardless of the outcome of that, Mr. Gilfillan had withdrawn his instructions from his lawyers. It's his action, rather than theirs. I think that's an important distinction".

Ms. Mc Kern replied that her understanding was that Mr. Crozier withdrew as a result of the conflict and that the withdrawal of instructions stemmed "from the fact that Mr. Crozier had to withdraw, after discussions, with the Law Society yesterday morning".

The Crown said that it understood Mr. Crozier's difficulty was resolved and any potential conflict there was removed but that the accused was in a position where he had lost confidence in his legal representation and that was the basis for the withdrawal of the instructions.

Ms Mc Kern then said to the judge: "My understanding of the - document was signed, I understand, at the offices of Walker Smith yesterday, the discussions that took place prior to us coming back into the court yesterday because of the conflict and although what my friend has said here that they were prepared to have some witnesses not give evidence, there were still concerns about a couple of witnesses that were going to give evidence and the fact that because Mr. Crozier's acted in the past in criminal-type matters which reflect back to part of these-the character of our client et cetera, that there was no-is our client had no confidence that they would be able to be overcome. I mean, if there's a conflict, unless- you won't know the outcome of that until after the witness is before the court and then it's too late. So the potential was there for a possible conflict and on that basis, in relation-two witnesses, I think, were Alex Minns and I believe the other person was Madelina - Mr. Crozier agreed there was a conflict. And he hadn't - and he discussed the matter with the Law Society who agreed with that conflict. I also personally had discussions with the Law Society regarding that as well. So there was a conflict in relation to the witnesses - ".

The judge responded that this was not his understanding. The judge asked the court staff to see if Mr. Crozier was still in the building. He appeared and the judge said to him: "Mr. Crozier can I ask you, were your instructions withdrawn by Mr. Gilfillan or did you withdraw from the trial?"

Mr. Crozier replied, "Our instructions were withdrawn".

The applicant said, "Yes, your Honour, yes, that's correct yes".

Mr. Crozier was not asked about the circumstances in which the instructions were withdrawn.

The judge commented: "I just want to get the record clear that my understanding was that Mr. Gilfillan had opted to dispense with the services of his then legal advisers, both Mr. Crozier and, perhaps in consequence Mr, Cavanagh and that the obligation, therefore, to do something about it was on him".

The judge took a short adjournment. Upon his return Ms. Mc Kern stated in the presence of Mr. Crozier: "My understanding is that because of this conflict which we did not think could be overcome- my client did not think could be overcome then the instructions were withdrawn by my client".

"All right. I don't know his reasons, I don't need to know his reasons; in fact, in some-in many ways, I think it's best if I don't know his reasons for withdrawing his instructions, but there's not much point sending Mr. Formosa up here on Monday to argue that the 'poor old accused has been dumped by his lawyers and is put in this position of disadvantage' if, in fact, it's been his choice to do that. So I simply give you that perhaps unwanted and I'm sure unnecessary advice and I urge you to redouble your efforts to find somebody to come and run the trial".

This passage is indicative of error. The reasons why the instructions were withdrawn, were in the circumstances of the present case of importance. The judge saw the issue in terms which were too restrictive. Enough had been said by Ms. Mc Kern to indicate that the applicant had withdrawn his instructions for reasons which appeared to have some substance and validity. The conflict of interest situation appeared to be real. Mr. Crozier had acted in some criminal type proceedings for some witnesses whom the Crown was proposing to call. It may have become necessary to cross examine them as to their credit. Even if there was no question of special knowledge or of its use, an invidious situation was about to arise. No client could contemplate that situation with equanimity.

Ms. Mc Kern, obviously troubled by what she regarded as the inadequate factual materials on which the judge was acting and his seemingly restrictive approach to the issues, caused detailed affidavits to be prepared by herself, the applicant and his father over the weekend and delivered to the judge about 9:30am on 10 March 2003. They were before the judge when he resumed on 10 March 2003. He enquired of the applicant, who was then unrepresented, as to the purpose of the affidavits. The applicant had difficulty in dealing with the judge's questions. He did however say, "Just to point out that why I stood me barrister and solicitor down and the conversations that took place….at Walker Smith's office on Thursday morning".

The judge then said to the applicant that unless he was asking him (the judge) to do something the affidavits did not seem to be relevant to the ongoing trial. The applicant stated that Ms Mc. Kern had tried to get about 20 different barristers and that she did not do criminal law of which he was unaware at the time he contacted her. The applicant told the judge, "And I don't know what path to follow. I am at a total loss….".

In her affidavit Ms. Mc Kern stated that as at the time of swearing it, early on 10 March 2003, she had not been able to locate any barrister who was able to act for the applicant. She deposed to a number of barristers telling her that even if they had been available they would have been reluctant to take over a half heard matter. Looked at objectively, at very short notice to find a barrister of some experience capable of handling the defence to six serious offences who was available to go to Taree for the ensuing ten days and perhaps longer was likely to range from the very difficult to the impossible particularly with a part heard matter. The barrister would have had to be given some days to master the brief and read the transcript to date. Of course the trial might have lasted much longer if the accused had called evidence.

The judge embarked upon a process of endeavouring to ascertain what was likely to be the future course of the trial if it continued. The judge ascertained from the Crown Prosecutor that he was proposing to call six witnesses whose evidence was to be subject of a Basha enquiry, namely Janeen Maddelina, Darren Maddelina, Amanda Wesley, Maree Minns, Alec Minns and Christopher Tate. There were another three witnesses the Crown was not proposing to call (Craig Plane, Tim Tompkins and Pater Emerton) but whom the Crown would make available to the defence if desired. The Crown Prosecutor gave the judge a brief outline of what the witnesses intended to be called would say. There were also 12 police officers and an analyst to be called with many of the police officers being corroborative of each other. Some were likely to be formal and short. The Crown Prosecutor also stated that counsel previously appearing for the applicant had indicated that there was going to be an objection to the whole of the ERISP. There were some parts which counsel and the Crown prosecutor had agreed should be excluded. The judge asked the Crown Prosecutor to outline both sides of what he anticipated would be the arguments as to the admissibility of the balance of the ERISP and he endeavoured to assist the judge.

The judge explained that he wanted an overview of the obstacles which remained in the case. The judge confirmed with the applicant, although he had not said so, that he was really making an application to have the trial terminated and started again. The judge noted that the substantial part of the Crown Case had been presented and tested in cross examination.

The judge did not ask the applicant whether he proposed to give evidence and call any witnesses. This is understandable. The judge was dealing with an accused in person and he was not bound to indicate what he proposed to do until the Crown case closed. The applicant did not volunteer that information. He may not have known at that stage. This made it very difficult to assess the future course of the trial. Very few accused know how or are able to lead evidence in chief.

The Crown Prosecutor told the judge he had interviewed the various Crown witnesses intended to be called on the Basha inquiry and came to the conclusion that only two of them, Minns and Janeen Maddelina were affected by the ethical concern (as clients or former clients of Mr. Crozier) and, in his opinion to a very minor degree. They had both given instructions that, if it became an issue in the trial, they were happy to waive privilege.

The Crown Prosecutor said that from his enquiries and knowledge it was more a matter of instructions being withdrawn than an ethical problem. He thought that problem was eminently curable. While the Crown Prosecutor's views were worthy of respect, the evidence of Ms. Mc Kern shows the nature of the problem and how it was resolved.

The judge gave the applicant another opportunity to make some telephone calls to see if he could obtain counsel. He was unsuccessful.

On the hearing of this appeal we had the advantage of the affidavit of 16 March 2003 from the Crown Prosecutor at the trial. He has confirmed that he interviewed the six further witnesses whom the Crown intended to call. Of those six witnesses no question of conflict of interest arose as to Christopher Tate and Amanda Wesley. Darren Maddelina informed him that he had never been in trouble and had never met Mr. Crozier. Mr. Crozier's firm (Walker Smith) may have acted on the sale of a business or property but he was not sure as that was a long time ago. Janeen Maddelina reiterated what her husband had seen.

Maree Minns told the Crown Prosecutor that she had never been in trouble. In June or July 2002 her husband Alec had been charged with an assault upon her and they had attended a conference with Mr. Crozier in regard to that matter. At the conference there was another solicitor, Mr Day from Newcastle. When Mr. Crozier asked about the applicant and what she thought about what had happened she replied, "I hope they call me up because I have plenty to say". Mrs Minns said that Mr. Crozier then said, "I don't want to hear any more". Her husband was represented at court by Mr Day.

Alec Minns told the Crown Prosecutor that he (Minns) had been "in trouble for things like drink driving and assault". In June 2002 he had been charged with assault upon his wife. He and his wife attended a conference with Mr. Crozier about that matter. Mr. Day, solicitor, was also present. Mr. Crozier asked him if he knew Rick Gilfillan and what was happening and he replied, "Yeah". Mr. Crozier replied, "I don't want to hear anything else". Mr. Minns was represented at court in regard to the assault by Mr. Day.

It seems that Mr. Crozier was originally retained by Mr. Minns and that Mr. Crozier brought Mr. Day in to handle the matter. We do not know the extent to which Mr. Crozier took instructions as to the assault from Mr. Minns but he attended conferences with Mr. and Mrs. Minns on that matter. The fact that Mr. Day appeared at court does not dispose of the problem. Mr. Crozier stated in evidence before this Court that he received instructions to act for the applicant after the committal proceedings and a short time before the matter was listed before the District Court. The District Court sittings in Taree were due to occur in October 2002. Mr. Crozier said that he had not checked his records for the dates and would need to do so.

It is not clear why Mr. Crozier would have been concerned about the applicant in June 2002 when speaking with Mr. and Mrs. Minns at that time if he had not yet received instructions from the applicant. Perhaps he had had a preliminary conversation with the applicant.

In his judgment refusing an adjournment and refusing to terminate the trial and order a fresh trial the judge noted that the applicant withdrew his instructions from retained legal representatives on the seventh day of the trial when more than half perhaps as much as three quarters, of the evidence to be called by the Crown had been called and tested in cross examination by the applicant's legal representatives.

The judge acknowledged that it was in the best interests of both the accused and the administration of justice generally that an accused should be represented. However, the judge stressed that the interests of justice also included the interests of the witnesses especially those of the complainant because of the bulk of her evidence and the personal distress which was occasioned her. He referred to balancing the interests involved and the advanced stage the trial had reached. In his view the interests of justice required neither an adjournment nor the termination of the trial.

The judge said: "I reiterate that the bulk of the evidence relevant strictly to the commission of the alleged crimes has already been given at a time when the accused was represented. The actions of the accused in withdrawing his counsel's instructions, whilst apparently made the subject of some attempt to obfuscate the issue this morning remains his decision. It cannot be the case that an accused can dictate the timing of his trial simply by withdrawing his instructions and thereby guaranteeing himself a fresh start before another judge and jury". The judge thought that the balance was clearly in favour of the trial proceeding.

There was no reference in the judgment to the conflict of interests issue nor to the issue of whether it was reasonable for the applicant to withdraw his instructions. There was no analysis of the applicant's position qua Mr. and Mrs. Minns and Janeen Maddelina. Nor was there any mention of how any waiver of privilege would resolve the conflict of interests issue.

It was accepted that the judge made a discretionary judgment and that this Court does not lightly intervene in the exercise of a judicial discretion. The principles to be applied are those specified in House v. The King (1936) 55 CLR 499 at 504-505.
In Thornberry v. The Queen (1995) 69 ALJR 777 the trial judge refused an adjournment from lunchtime on 26 August 1993 until the morning of 27 August 1993. This was sought to enable the appellant to produce two witnesses critical to the appellant's defence who were absent at a medical appointment. The joint judgment of the court contains this passage (citation omitted): "Of course the refusal of an adjournment is an exercise of a discretion and the respondent submits that no ground exists for reviewing the trial judge's decision. The principles governing the review of the discretionary judgment are well established. One ground for review is: 'that the result is so unreasonable or plainly unjust that the appellate court may infer that there had been a failure properly to exercise the discretion which the law reposes in the court at first instance ; House v. The King' . That is taken from the judgment of Kitto J in Australian Coal and Shale Employees' Federation v. The Commonwealth . See also R v. McGill. In this case the refusal of the adjournment resulted in the appellant's being unable adequately to present his case. The discretion miscarried".

The applicant contended that in the exercise of the discretion there was specific error in that the judge failed to take relevant matters into account and applied the wrong test. It was also contended that the result reached by the judge was unreasonable and unjust.

Before turning to the various complaints a number of matters should be noted. It was accepted that in this trial counsel could not continue on his own. The adequate conduct of the defence required that counsel be instructed by a solicitor who was fully seized of the matter and competent in criminal law cases. The appellant did not suggest that Mr. Cavanagh was affected by any conflict of interest. The difficulty was that he had announced that if Mr. Crozier had to withdraw he (Cavanagh) would withdraw. During the hearing counsel for the applicant before this Court, at its request, contacted Mr. Cavanagh. Counsel told us that Mr. Cavanagh was not prepared to return to the trial even if he was provided with a fresh instructing solicitor.

While there are differences of some significance between a case where the trial is well underway (as in the instant case) and one where the trial has not started and the accused does not have legal representation, the observations of the High Court of Australia as to the latter instance in Craig v. South Australia (1994-1995) 184 CLR 163 at 183-184 (citations omitted) are helpful: "The decision of the court in Dietrich v The Queen established that, in a criminal case where an unrepresented accused is facing trial for serious offences, a trial judge has power to make an order staying the proceedings if, in the circumstances of the case, it appears that the accused would otherwise not receive a fair trial. In the course of their joint judgment Mason CJ and McHugh J made the following comments as reflecting their approach and that of the other majority Justices: "we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available". The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused's inability to obtain legal representation being "through no fault on his or her part" was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of the accused which had contributed to his or her lack or representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that: "…what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune." A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused".

Where, as here, a trial has been proceeding for a number of days, and the accused has ceased to have legal representation including where he has withdrawn instructions the matters to be taken into account will be somewhat broader. They would include the interests of the witnesses, their health, if ill or aged, and their availability.

Unreasonable dispensation with legal representation by an accused during a trial would amount to fault on the part of an accused and usually in such circumstances a trial would not be terminated. Whether an adjournment would be granted would depend on all the circumstances, for example, fresh legal representation may be able to be obtained within a couple of days, thus enabling the trial to continue.

In applying Craig this Court in DPP v. Thomas James Allan unrep 1 Nov 1995 per Allen J observed that the touchstone of the common law was reasonableness and that that applied to the concept of fault.

Circumstances may exist where it is reasonable for an accused to withdraw his instructions even at an advanced stage of a trial. For example, his counsel may be conducting his case in an obviously incompetent fashion or incorrectly disregarding instructions which were not improper or for personal reasons may not feel able to cross examine a witness adequately. This list is not exhaustive.

One further general observation should be made. Wootten J in Thompson v. Mikkelsen(unrep NSWSC 3 October 1974) referred to: "…the reasonable expectations of a client instructing a solicitor that the solicitor will be in a position to approach the matter concerned with nothing (in mind) but the protection of his client's interests against (those) of the other party. (The client) should not have to depend on a person who has conflicting allegiances and who may be tempted, either consciously or unconsciously, to favour the other client, or simply to seek a resolution of the matter in a way which is least embarrassing to himself".

This passage highlights that waiver of the privilege is but one matter to be taken into account.

Counsel for the applicant raised the difficult question whether it was appropriate for the Crown Prosecutor to interview an intended witness about his or her relationship with a former solicitor. There was no difficulty in the Crown Prosecutor asking such a witness and ascertaining no more than whether he or she had ever met or been a client of a particular solicitor, and, if so, approximately when. It is not necessary in the present case to resolve the issue raised. One problem that has to be borne in mind is that it is customary for a client who is contemplating waiving privilege to be told to seek independent legal advice. Again, this need not be pursued.

In the present case the judge did not take into account the issue of fault, that is, whether it was reasonable for the applicant to withdraw his instructions, and, it seems, the conflict of interest issue. He did not deal with the issue of the effect on the applicant acting reasonably of the knowledge that Mr. Crozier had recently acted for Minns and interviewed Mr. and Mrs. Minns, especially if either or both had to be cross examined in a searching fashion or on credit.

Accordingly, I am of the opinion that the exercise of the judge's discretion miscarried. Further, with all due respect to the judge the affidavit of Ms. D. I. Mc Kern does reveal matters causing justifiable concern and it is not correct to refer to the affidavits as an attempt to obfuscate the issue. The affidavits provided evidence.

A considerable amount of time was spent in endeavouring to resolve the conflict of interest situation including contact with the Law Society. Ms Mc Kern was able to give an outline of what took place. She had a knowledge not possessed by the Crown Prosecutor or the judge. Although not a solicitor who practised in criminal law she was a solicitor of 14 years standing.

The applicant was not satisfied with some aspects of the way in which his case was being conducted. When the conflict of interest situation arose with its consequences he was entitled to rely upon it. The evidence suggests that this at least tipped the balance in the applicant's decision to withdraw instructions and may have been even more significant. It was obviously a factor and the prime reason why Ms. Mc Kern was retained.

The issue of a conflict of interest or possible conflict of interest arose during the trial after the Crown served statements from witnesses who had not furnished statements for the committal proceedings or prior to the trial starting. Particular objection was raised as to two of these witnesses for whom it was believed Mr. Crozier had acted. Ultimately, the objection was as to Mr. Alec Minns and possibly his wife.

It becomes necessary for this Court to exercise afresh the judge's discretion. I am not persuaded that it was unreasonable for the applicant to terminate Mr. Crozier's instructions. Waiver of privilege did not overcome the problems which had arisen. Indeed, in the circumstances of the present case that was not the real point. The applicant was entitled to be represented by a solicitor who had no conflicting allegiances and nothing in mind but the protection and advancement of the applicant's interests. The applicant had and was entitled to have little confidence in what had been advanced. The fact that potential witnesses were prepared to waive privilege so readily would have tended to increase his lack of confidence as to the full protection of his interests.

The trial still had some distance to go and the issues which loomed were not ones which were likely to be adequately handled by a layman or, I might add, the applicant. There was to be a Basha Inquiry in respect of the six additional witnesses prior to their being called, cross examination of a number of witnesses and argument as to what portions of the ERISP should be admitted. It cannot be overlooked that the problems arose because the statements of some six witnesses were not served by the Crown prior to the start of the trial.

The decision whether to call evidence, and if so what evidence, in the defence case was one likely to require legal assistance. Laymen usually have problems in leading evidence before a jury. In the present case it seems that there were a considerable number of matters which would have had to be covered. There was also the question of what directions should be sought and given. As a result of the judge's decision the applicant was unable adequately to present his case. In the light of these considerations, the waste of Court time, the inconvenience and undoubted distress to the witnesses and, in particular, the complainant while important should not prevail over the paramount concern that there be a fair trial. The trial should have been terminated. Costs

Upon this Court making its orders the applicant sought an order or certificate under the Suitors' Fund Act 1951 for his costs. The Court directed that written submissions be lodged on this issue. Both the applicant and the Crown have done so.

The applicant noted that consequent upon s.17 of the Criminal Appeal Act 1912 this Court has no power to award costs on the hearing or determination of an appeal.

Section 6A(1)(b) of the Suitors' Fund Act 1951 does not assist the applicant as the subject application was not an appeal against conviction. No other provision of sections 6, 6A and 6B of that Act authorises an order or certificate for payment of the applicant's costs of the aborted trial or of the application or appeal to this Court.

Section 6C of the Act provides: (1) If: (a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings; (b) the party is not otherwise entitled to a payment from the Fund in respect of the costs; and (c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of these sections, The Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case. (2) A payment under this section shall not exceed $10,000.

As was pointed out in Lilley (2000) 111 A Crim R 468 this Court has no role to play in relation to section 6C, the matter of payment of costs being one for the Director-General. In those circumstances, the Court should not express an opinion. Amongst other matters, the Director-General will consider the Court's reasons and the outcome of the application to the Court and make his determination. Even after the Director-General has made his determination no payment may be made without the concurrence of the Attorney General.

The Court declines to make an order for costs or grant an indemnity certificate on the ground that it has no power to do so in the circumstances of the present case.

Last Modified: 04/14/2003 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.

CITATION : R v. Gilfillan [2003] NSWCCA 102 HEARING DATE(S) : 17 March 2003 JUDGMENT DATE : 14 April 2003

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