R v Osborne [2002] VSCA 156

R v Osborne [2002] VSCA 156 - VSCA 2002 case summary — Zoe

[29]

On the adjourned date, the applicant's counsel told his Honour, in effect, that as of that morning, his brief and the retainer of his instructing solicitor had been terminated by the applicant. A short time later counsel repeated this before the jury and after counsel had withdrawn, the applicant told his Honour (in the absence of the jury) that he wished to brief other counsel and would need until Wednesday or Thursday of that week to do so. His Honour expressed reluctance to adjourn the matter for any length of time given that, from a practical point of view, the trial had not proceeded since approximately midday on the previous Friday. The applicant then applied for an order that the jury be discharged without verdict on the grounds that one of its members had dealings with Mr. Lewenberg and that the withdrawal of counsel and his solicitor may have resulted in the jury forming an adverse view of him. His Honour ruled against the application to discharge the jury[8] and also against the application to adjourn the trial until Wednesday or Thursday of that week. In the course of his ruling on the adjournment application, his Honour noted that the trial already had a disrupted history and that prior to its commencement the applicant had been advised by a number of judges of the desirability and advisability of obtaining legal representation for the purposes of his trial but that on each such occasion the applicant confirmed that he did not wish to be represented. His Honour then set out briefly the delay that had been caused to the trial by reason of the adjournments that had been sought, first by the applicant and then, on his behalf, by his counsel. His Honour emphasised that the applicant had been very ably represented by his counsel at trial and that it was the applicant's own decision to terminate that representation. His Honour considered that, should the application for adjournment be granted, the continued delay of the trial to the following Wednesday or Thursday would mean that there would be a gap in the trial which would be extremely undesirable. In his Honour's view, that would prejudice the proper conduct of the trial and he said that fairness to the Crown was also a matter to be taken into account. Further, the judge noted that considerable indulgence had been extended to the applicant and it was not appropriate to give him further latitude in that regard. Consequently, his Honour refused the adjournment sought by the applicant.

[36]

The basis of the decision in Dietrich was, as Brooking J.A. pointed out in R. v. Rich[15], that an accused person has a right to receive a fair trial according to law, "or, more accurately, the right not to be tried unfairly."[16] His Honour went on to explain the conclusion in that case "that the trial of an indigent accused charged with a serious offence who without fault is unable to obtain legal representation should be adjourned or stayed in the absence of exceptional circumstances rested upon the nature and exigencies of a criminal trial...". Thus, the observations of their Honours as to the approach to be adopted in considering whether a trial of an unrepresented accused who seeks legal representation should proceed, must be read in the context of the circumstances applicable to that case and those circumstances were markedly different from those that faced the trial judge here. First, the applicant was not an indigent accused who, because he was unable to secure legal representation, sought a stay of his trial. Nor was the applicant relevantly "without fault" in being unable to obtain legal representation. On the contrary, he had the ability to fund his representation and had done so. Prior to the adjournment application, he had been represented by competent and experienced counsel and solicitor but, consistently with what he told the judge prior to the commencement of the trial[17], he withdrew his instructions during the course of the trial apparently because he was not satisfied that his counsel conducted the case as he wanted it conducted. In the circumstances, one could not be confident that, had an adjournment been granted and other counsel were briefed, their instructions would not have been similarly withdrawn if they were not prepared to conduct the defence wholly as the applicant might wish having regard to their duty to the court. Moreover, as has already been mentioned, unlike the situation in Dietrich, the application for an adjournment here was made after the critical Crown witnesses had been cross-examined by the applicant's counsel in relation to the central issues in this case, including those that pertained to the counts on which he was ultimately convicted.

[52]

It should be said by way of background to the analysis of this complaint that the applicant's counsel cross-examined at least two witnesses, Joseph and Anderson on matters going to their respective character, principally, their prior convictions. After the applicant dismissed his counsel and in the course of the applicant's cross-examination of Crown witnesses, the prosecutor told his Honour that he had told the applicant's counsel that, in the light of his cross-examination, he may seek to cross-examine the applicant as to his prior criminal history should the applicant give evidence. In that context, he filed a further presentment which detailed the applicant's prior convictions and repeated the possibility of his making an application to cross-examine the applicant in relation to his prior convictions if he gave evidence. The prosecutor suggested that, in fairness to the applicant, his Honour should explain to him the operation of the provision and, in particular, that he might be cross-examined as to his prior convictions should he give evidence. No doubt as a result of this suggestion, the trial judge explained to the applicant the possible operation of s.399(5) in the context of the case and the possibility that he might be cross-examined as to his character, including his prior convictions, if it is established that he or his counsel had asked questions of prosecution witnesses with the view to attacking their good character. His Honour did not suggest, however, that the applicant had cross-examined the witnesses to that effect, but merely advised him that if he were to do so he would run the risk of himself being cross-examined as to his prior convictions if he gave evidence. The transcript of the proceeding shows that the applicant told the judge that he understood what had been explained to him, but he indicated that he would nevertheless like to speak to his former counsel because, as he claimed, he had not instructed him to put the alleged offending questions during cross-examination.

[95]

The applicant's counsel agreed with the suggestion made by the Chief Justice in the course of argument before us that, if the case had been conducted on the basis that there had been a relationship between the applicant and Melissa, that would be relevant to explain the allegedly offending conduct. But, said counsel, once it was asserted that there was a sexual relationship between those parties, the attempt to lead such evidence would be contrary to the applicant's acquittal by direction on counts 1 to 3 and would only be prejudicial to the applicant. But the mere fact that the applicant was acquitted on these three counts, did not bar the Crown from contending that, on the evidence, it was open to the jury to infer that the relationship between the applicant and Melissa had sexual connotations. Counts 1 to 3 alleged a particular form of sexual relationship between them. There was, however, evidence before the jury from which they could have properly drawn the inference that the relationship was a sexual one albeit not one involving penile penetration. That evidence included the following. Melissa's mother gave evidence that, in the late months of 1997 when visiting her daughter who lived in the same house as the applicant, she observed her engaged in domestic work such as washing and hanging out clothes and making the bed. Melissa's mother also said that, in early 1998 when she stayed overnight in the applicant's house and had slept in the spare room, she heard her daughter's giggling coming from the main bedroom. Evidence was also given by Melissa's aunt that, between March and July 1996, when Melissa resided at her home, she took her to see a doctor in Rushworth for the purpose of obtaining a prescription for the contraceptive pill. There was also evidence from the doctor, who essentially confirmed that the aunt had brought Melissa to him for consultation. He stated that as Melissa was already sexually active at the time and there was concern that she would have an unwanted pregnancy, he prescribed an oral contraceptive for her. The aunt also said in evidence that, at approximately 7 a.m. one morning in about April 1996, she went past Melissa's room and observed that she and the applicant were in bed together.

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Judgment (142 paragraphs)

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