//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2002] VSCA 156
Court of Appeal (Vic)
2002-10-03
PHILLIPS, C.J., CHERNOV and VINCENT, JJ.A.
Original judgment source is linked above.
[ 2002] VSCA 156
Criminal Law - Appeals against conviction and sentence - Termination of counsel's retainer - Application by unrepresented accused for further adjournment of trial - Principles relevant to consideration of adjournment application - Meaning of right to a fair trial - Whether trial unfair to accused - Whether trial resulted in miscarriage of justice - Test applicable to determine whether miscarriage of justice occurred - Whether accused deprived of real chance of acquittal - Leave to appeal refused**.**
Criminal Law - Sentencing - Sentencing error - Sentencing judge taking into account matter adverse to applicant not necessarily determined by jury.
some items that belonged to the applicant and went to stay with the victim at his mother's house. Fearing repercussions from the applicant upon his return to Shepparton, Melissa, the victim and Melissa's brother, Joseph ("Joseph"), acquired bus tickets to Mackay in Queensland, intending to travel there on the evening of 7 July.
(a) in exercising his discretion to refuse the application for adjournment, his Honour failed to have regard to relevant principles and, therefore, his discretion miscarried;
(b) in any event, it was said, because he was unrepresented at his trial, the applicant was denied a trial that was fair to him.
Thus, it was said for the applicant, the conviction should be set aside and a new trial ordered.
Circumstances leading to applicant conducting own defence
"ACCUSED: I've given a lot of through [sic] to this, sir, but I don't think I could trust a barrister in the position I'm in. I've had trouble trusting barristers in the position I'm in sir. They've refused to use evidence and basically they've just taken my money, sir.[6] HIS HONOUR: Well what is your answer to the question? You do not want to be legally represented? ACCUSED: No sir, I have to pursue the way I'm going. HIS HONOUR: You wish to proceed, representing yourself? ACCUSED: Yes sir, I have to. HIS HONOUR: That's the situation? ACCUSED: Yes sir. HIS HONOUR: All right."
"The decision whether to accede to or refuse the application for adjournment of the hearing was within the Magistrate's discretion. An appellate court will rarely interfere with a trial judge's exercise of discretion upon such an application: Bloch v. Bloch [1981] HCA 56; (1981) 55 A.L.J.R. 701, at p.703; [1981] HCA 56; 37 A.L.R. 55, at pp.58-9, per Wilson, J. However, the result of refusal to grant an adjournment might be to prevent the party seeking it from presenting his case or defence; in some circumstances such result could constitute an injustice. This is so because it is essential to the fair trial of an action - whether civil or criminal - that all parties are able to present their case as fully as necessary and within the limits of the law. To overcome an injustice so brought about or threatened, an appellate court will interfere with the trial judge's discretion. This principle was expressed by Atkin L.J. in Maxwell v. Keun [1928] 1 K.B. 645, at p.653, as follows: `I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.'"
It is true that Bloch and Maxwell v. Keun were civil cases but, as is evident, his Honour cited them in the context of an appeal from the Magistrates' Court where the applicant was convicted of an offence and sought to have the decision reviewed. In my view, the principles referred to in those cases operate also in respect of an application to adjourn a criminal trial. See, for example, Dietrich v. The Queen[11] and Bollen[12].
"The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained."[14]
Thus, counsel seized on this passage and argued that the trial judge should have considered whether exceptional circumstances were shown to exist in this case such as to justify rejecting the adjournment application. Mr. Lyon submitted that his Honour failed even to consider whether such circumstances prevailed in this case and thereby fell into error. (Mr. Lyon went on to submit that, in any event, there were no such circumstances present in this case and that his Honour erred for that reason also in refusing the adjournment application.)
(a) It is in the best interests of both the accused and the administration of justice that the accused be represented at his or her trial. (b) The trial judge ought very seriously to consider whether an accused should be forced on without counsel in any case in which there is a reasonable possibility that he may obtain the services of counsel in his defence without unbearable delay. (c) In exercising his or her discretion as to whether to grant the adjournment, the judge must most carefully weigh all of the interest of the accused, the Crown, witnesses, jurors and (generally) the administration of justice.
(a) The importance of representation for an accused in a serious criminal charge cannot be too highly stressed. (b) The trial judge when exercising his or her discretion is entitled to have regard to the interests of justice as well as to the interests of the accused. (c) Unless the interests of justice are overwhelming, so important is the need for representation that the judge should permit the accused to pursue all avenues of obtaining legal aid to their conclusion.
It is important to emphasise that the Chief Justice (and, I believe, Mason, J.) considered that the interests of justice that were to be taken into account in determining an application for an adjournment of a trial, included not only the interests of the accused, but also those of the Crown, the witnesses, the jurors and the proper conduct of the trial ("the administration of justice"). In my view, it is apparent from what the trial judge in this case said, before and when refusing the adjournment application, that he had regard to the above principles and that he exercised his discretion in that context. That his Honour raised with the applicant on several occasions the question of his being represented at the trial and that he granted him and those representing him a number of adjournments to ensure that he was properly represented, reflects the judge's appreciation that the applicant was entitled not to be exposed to an unfair trial and of the desirability of his being legally represented at it. It is also apparent that his Honour took into account in the exercise of his discretion the fact that the adjournment was sought part way through the trial and after a number of Crown witnesses had been cross-examined by the applicant's counsel on key issues in the case. It was also not irrelevant for his Honour to take into account, as he did, that the applicant had been represented by experienced and competent counsel and the circumstances in which his brief had been withdrawn. Furthermore, the judge correctly, I think, had regard to the effect that a further adjournment would have on the proper conduct of the trial.
Applicant must establish more than trial unfair
"The appellate jurisdiction in criminal matters depends upon a conclusion that there was a "miscarriage of justice" ... such that the applicant "has thereby lost 'a chance which was fairly open to him of being acquitted' (84) [MRAZ v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493 at p.514 per Fullagar, J.] ... or `a real chance of acquittal' (85) [Reg. v. Storey [1978] HCA 39; (1978) 140 C.L.R. 364 at p.376 per Barwick, C.J.], to repeat the expression used by Brennan, Dawson and Toohey, JJ. in Wilde v. The Queen [(1988) [1988] HCA 6; 164 C.L.R. 365, at pp.371-372]."
They concluded[24] that, in that case, the applicant's defence was so disorganised and haphazard as to lack cogency and that, in the circumstances, the conclusion that the applicant may have lost a real chance of acquittal was compelling. Brennan, J. said[25]: "The rhetoric that a trial must be fair before a conviction is recorded is true only to the extent that unfairness leads to a miscarriage of justice." Toohey, J. was also of the view[26] that it was the "loss of a chance of acquittal fairly open to an accused, rather than the unfairness of the trial itself, that leads to the conviction being set aside". His Honour considered[27] that, for the purposes of determining if a convicted accused was denied a fair trial by reason of lack of representation, an appeal court's role is similar to that when a conviction is challenged as being unsafe and unsatisfactory. The court must, his Honour said, make the assessment in light of the relevant evidence. His Honour also noted[28] that an assessment of the complexity and the fairness of the trial made prospectively at the time when an application is made for an adjournment, may be different from an assessment of whether the trial was unfair to the accused having regard to what occurred at the trial.
(c) Crown's reliance on applicant's alleged sexual relationship with Melissa
(d) Applicant's various difficulties in conducting his defence and understanding the nature of the evidence that he could present
(e) The applicant did not appreciate the nature of a closing address
(f) His Honour's charge on self-defence was deficient
(g) Failure to tell the jury to make proper allowance for the fact that the applicant was not represented
Was applicant deprived of a real chance of acquittal on counts 15 and 19?
Ground 7 - his Honour's failure sufficiently to inform the applicant of matters relevant to his closing address
"2. The learned trial judge erred in failing to direct the jury that if they acquitted the applicant of the offence of intentionally causing injury to [the victim] (Count 14) as a result of the Crown's failure to negative lawful excuse (self-defence), they should not then return a verdict on the alternative count of recklessly causing injury (Count 15). 3. The learned trial judge erred in failing to relate his directions on self-defence to the factual issues in the trial."
(a) He was concerned that not enough had been said by his counsel on the appeal in his favour in relation to the Crown allegation that he had a sexual relationship with Melissa. He proceeded to explain that Melissa had been present at the trial daily and could have been called by the Crown. He also said that Melissa had withdrawn her earlier complaint to the police.
(b) Joseph's claim that the applicant had admitted to him while he was in the applicant's employ that he had sexual intercourse with Melissa was a lie. The applicant said Joseph never worked for him, and that the cross-examination of him (by his counsel at the trial) showed this. Nevertheless, he argued, this was not sufficiently pursued by his counsel (at the trial or on appeal).
(c) He went to the victim's home merely to retrieve his property.
(d) The reasons for wanting to play to the jury his tape recording of his conversation with the Informant was to show that he had been wrongly harassed by him and by the Shepparton media in relation to the abducting of a young girl in Shepparton.
(e) In his evidence, the victim admitted that, on 7 July, the applicant had knocked on the door of his house in order to gain entry and that Joseph had opened the door and let him in.
(f) The photograph of the victim supposedly taken after the alleged assault did not show that he had any marks on his face that were consistent with the alleged assault.
(g) The reason he did not give evidence was that if he had done so, in light of his counsel's cross-examination of Crown witnesses, his prior convictions would have been disclosed and he did not want that to occur.
that the offence was committed during the period of an earlier suspended sentence, given the applicant's personal circumstances, including his commitment to his business, I regard his prospects of rehabilitation as reasonable and consequently, I would fix a non-parole period of six months. Given that the applicant has already served approximately three months of the original sentence, he will be eligible for parole at the expiration of a similar period and, hopefully, he will get on with his life without engaging in the anti-social behaviour which has formed part of his life up to the present offendings.
[2] Such actions formed the basis of counts 7 to 11.
[3] That threat constituted the basis of count 20.
[4] (1993) 69 A.Crim.R. 208 at 212.
[5] Chief Judge Waldron (20 February and 29 September 2000), Judges Hassett (6 July 2000), Barnett (15 August 2000) and the trial judge (6 October 2000).
[6] As will become apparent later, the applicant's mistrust of his counsel continued during the trial and the appeal. It seems that he held the view that, as he paid counsels' fees, they were obliged to conduct his case, including the cross-examination of witnesses, in accordance with his dictates. It was this attitude that influenced his approach to the question of his being represented at the trial.
[7] The Crown's first witness had given evidence on the previous day.
[8] This ruling is not the subject of any ground of the application for leave to appeal.
[11] [1992] HCA 57; (1992) 177 C.L.R. 292 at 311 per Mason, C.J. and McHugh, J.
[12] (1998) 99 A.Crim.R. 510 at 516 per Hunt, C.J. at CL **(**with whom Hulme, J. and Graham, A.J. agreed on this matter).
[14] Deane, J. at 337, Toohey, J. at 361-362 and Gaudron, J. at 369 were of a like view in this regard.
[15] [1998] 4 V.R. 44 at 47, with whom Winneke, P. and Buchanan, J.A. agreed.
[16] See also Jago v. District Court (N.S.W.) (1989) 169 C.L.R. 23 at 56-57, per Deane, J.; Dietrich at 299-300 per Mason, C.J. and McHugh, J.; Azzopardi v. R. (2001) 205 C.LR. 50 at 105 per McHugh, J.; Victoria Legal Aid v. Beljajev [1999] 3 V.R. 764 at 772 per Winneke, P.; Attorney-General (N.S.W.) v. X [2000] NSWCA 199; (2000) 49 N.S.W.LR. 653 at 668 per Spiegelman, C.J., Mason, P. and Priestley, J.A.; Bayeh v. Attorney-General (N.S.W.) (1995) 82 A.Crim.R. 270 at 275 per Hunt, C.J. at CL; Komljenovic (1994) 76 A.Crim.R. 521 at 530 per Southwell, Nathan and McDonald, JJ.
[18] [1979] HCA 65; (1979) 143 C.L.R. 575. What their Honours said was noted and applied by Hunt, C.J. at CL in R. v. Small (1994) 33 N.S.W.L.R. 575 at 590-591.
[26] At 362. Deane, J. expressed a similar view at 337-338, as did Gaudron, J. at 375.
[31] (1998) 99 A.Crim.R. 510 at 516 per Hunt, C.J. at CL.
[32] At 212 per Gleeson, C.J. with whom Carruthers, J. agreed.
[34] The applicant made this announcement after his Honour helpfully suggested that it should take that form, rather than one whereby he told the court in front of the jury that he would not be giving evidence.
[38] See also Deane, J. at 335-336 to similar effect.
[39] See Dietrich at 355-356 per Toohey, J.
[40] [1970] HCA 17; (1970) 123 C.L.R. 334 at 339 per Barwick, C.J. and at 344 per Menzies, J.
[41] [1974] HCA 19; (1974) 131 C.L.R. 116 at 121-122 per Barwick, C.J., McTiernan and Mason, JJ.
[42] [1983] HCA 42; (1983) 152 C.L.R. 657 at 674 per Dawson, J.
[43] [1984] HCA 38; (1984) 154 C.L.R. 563 at 575-576 per Gibbs, C.J., Mason, Murphy, Wilson and Dawson, JJ.
[44] [2002] VSCA 84 at [57-59, 79] per Winneke, P., Charles and Chernov, JJ.A.
[45] Although this Court has said that Jones v. Dunkel may have application to criminal trials, it has also emphasised that the principle formulated in that case cannot be so applied without qualification. See, for example, R. v. Glennon [2001] VSCA 17 at [58] per Winneke, P. and Ormiston, J.A.; R. v. Holden [2001] VSCA 63 at [38-42] per Chernov, J.A. with whom Tadgell and Ormiston, JJ.A. agreed.
R
Osborne [2002] VSCA 156