Regina v Joyce

The Crown prosecutor resisted production of those documents on the basis that they were protected by legal professional privilege and that, in any event, no legitimate forensic purpose had been shown for seeking them. In declining to order production, Dodd DCJ upheld the claim of legal professional privilege (perhaps now better described as "client legal privilege": see Part 3.10 of the Evidence Act ). 13 Argument for the applicant was directed to the two matters in the prosecution guideline bearing upon the decision to proceed to retrial: whether or not another jury would be in a better or worse position to reach a verdict, and the cost of the retrial to the community and to the applicant. Counsel for the applicant relied upon a detailed analysis of evidence in the first trial to be found in the application to the Director to discontinue the proceedings, which was before his Honour. 14 Put shortly, it was argued that the preponderance of the expert evidence favoured the proposition that the applicant's driving was involuntary. Reliance was placed upon aspects of the applicant's behaviour after the accident which were said to be consistent with his being in a dissociative state, and it was put that his course of driving itself was explicable by that condition, rather than by fatigue. Given the burden of proof borne by the Crown upon the issue, it was argued that a finding of guilt was unlikely and, in any event, would not withstand appellate challenge. It was also argued that there was a real prospect that the jury at a second trial would again be unable to agree upon a verdict, given that the central issue of sane or insane automatism was one of some complexity. 15 The application was supported by an affidavit of the applicant's solicitor. Among other things, that affidavit referred in general terms to the costs which the applicant had already incurred and was likely to face in the event of a retrial, which was estimated to take some weeks. No amounts were specified and there was no evidence of the applicant's financial position. In the course of argument his Honour summarily rejected an argument based on the likely cost to the community and the applicant of a retrial, and he made no reference to that matter in his reasons for dismissing the application. 16 His Honour accepted the written submissions of the Crown prosecutor, which he attached to his reasons. Those submissions asserted the independence of the discretion vested in prosecution authorities: Jago v District Court of New South Wales (1989) 168 CLR 23, per Gaudron J at 77, and the fact that it is only in rare cases that a court would intervene in the exercise of that discretion by the remedy of a permanent stay: Jago per Mason CJ at 34; R v Crisologo (1997) 99 ACrim R 178, per Simpson J at 190. The Crown argued that the applicant had failed to establish either of the relevant tests for a stay, that is, that the trial would be unfair: Jago, or that the prosecution would inevitably fail: Walton v Gardiner (1993) 177 CLR 378 in the joint judgment at 393, and per Brennan J at 411. 17 His Honour condensed his reasons for refusing the application in this way: …in essence what I am being asked to do is to decide by reference to the facts of the matter that a jury in a second trial would be unlikely to agree upon a verdict, and that therefore the second trial should not take place, or alternatively, and perhaps more strongly, that even if a jury were to agree and convict the accused, that on an appeal the Court of Criminal Appeal would be bound to set aside such a conviction on the grounds that, in the old language, the conviction was unsafe and unsatisfactory. None of the cases cited to me provide any practical support for taking such a course. I am, in effect, being asked to rush in where all of my angelic brothers and sisters before me have feared to tread. It is not a course I intend to take.

18 Before us, counsel for the applicant reagitated the matters which had been raised in the District Court, the focus of his argument being that his Honour erred in failing to determine whether the Director of Public Prosecutions had properly exercised his discretion to proceed to retrial in the light of the relevant prosecution guideline. However, a fresh matter of considerable importance was also raised, and to that I shall turn in a moment. 19 On the material furnished in the District Court, I can detect no error in the approach taken by Dodd DCJ, either in relation to the subpoena or in the outcome of the application for a stay. The Director's guidelines do not have the force of law and, for the purpose of the application, his Honour was not engaged in judicial review of administrative action. His only function, as the Crown Prosecutor before him had submitted, was to determine whether the retrial would be unfair or whether the prosecution case was doomed to failure. The relevant principles were restated by Dunford J in R v H [2002] NSWCCA 355 at paras 13 & 25, and there is no need to repeat them. 20 The subpoena was the product of the same misconception of his Honour's task. Clearly, it was open to his Honour to uphold the claim of legal professional privilege: Nye v State of New South Wales [2002] NSWSC 1267 (O'Keefe J). However, it was equally open to have declined to order production of those documents on the basis that no legitimate forensic purpose had been shown. The Director's reasons for proceeding to retrial, and the material which was before him for the purpose of making that decision, were irrelevant to the matter which his Honour had to decide. His Honour's function was to determine whether a stay should be granted on the evidence before him, and in the light of the principles summarised in H. 21 Nothing was put before his Honour to demonstrate that the retrial would be unfair. Nor was it established that the prosecution would necessarily fail. What emerged was that there is an issue about the applicant's state of mind at the relevant time and that there is conflicting expert evidence about that matter. That is an issue properly to be resolved by a jury, appropriately directed. 22 However, we were asked to receive fresh evidence in the application. We have the power to do so: s 5F(4) of the Criminal Appeal Act, and we received it subject to its relevance being shown. In an affidavit of 5 March 2003, the applicant deposed that he had spent in excess of $80,000 so far on legal expenses and is unable to fund the retrial. His application for legal aid had been refused (presumably because he did not pass the means test), and an appeal to the Legal Aid Review Committee was dismissed. The affidavit also disclosed that the Chief Judge of the District Court, Blanch J, had communicated with the Attorney General to see if legal assistance might be afforded through the Legal Representation Office. We were informed from the Bar table that that approach was unsuccessful. 23 It could be, then, that the applicant would face a second trial unrepresented. It need hardly be said that this would be most undesirable, given the seriousness of the matter and the difficult issues involved. We were asked to allow the appeal on this basis, applying the principles in Dietrich v The Queen (1992) 177 CLR 292. However, it is not appropriate that this Court should consider that matter. It raises a basis for a stay of proceedings which was not argued in the District Court. In any event, the evidence is inadequate and the Crown has not had the opportunity to respond to such evidence as there is. 24 It would be open to the applicant to make a fresh application to the District Court for a stay on this basis, supported by evidence about his assets, income and commitments. That application might be seen to have considerable merit if it appeared that he would be forced to trial without legal representation. To give the matter proper consideration it might be necessary to adjourn the trial, which is currently fixed for the end of this month. These, however, are matters for the court of trial. 25 No error having been shown in the present application, I would refuse leave to appeal.

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