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[2013] NSWCCA 18
Court of Criminal Appeal (NSW)
2013-02-01
Simpson J, Johnson J, Grove AJ, Bellew J
Original judgment source is linked above.
The Application for Leave to Appeal 13The sole basis upon which adjournment of the trial was sought on 29 January 2013 was to defer the trial of the Applicant (who is on bail) until the Court of Criminal Appeal had heard and determined an appeal against conviction by Shamoun which, so the trial Judge and this Court were informed, would include a ground of appeal that the verdict of guilty of murder was unreasonable or could not be supported by the evidence. If this ground was made out, the Court of Criminal Appeal would be asked to acquit Shamoun of murder. 14A premise of the application was that, given the way in which the Crown has put its case, if Shamoun was acquitted of the murder of Mr Carruthers, then the Applicant, whom the Crown alleges directed the attack upon Mr Carruthers, could not be liable to conviction for the murder of Mr Carruthers. 15As the Crown case had been conducted at the first trial upon the basis that the Applicant could not be convicted of murder if Shamoun was acquitted, it was argued that the Applicant's trial should not proceed until the Court of Criminal Appeal had determined whether Shamoun's murder conviction should stand. 16Mr Dhanji SC, counsel for the Applicant before this Court, developed submissions in support of three proposed grounds of appeal: (a) Ground 1 - His Honour failed to have regard to a relevant consideration, that is the prejudice to the Applicant arising from refusal of the application. (b) Ground 2 - His Honour placed too much weight on case management to the exclusion of other factors. (c) Ground 3 - His Honour's decision was unreasonable or plainly unjust, in that real injustice would be occasioned to the Applicant if the adjournment was not granted. 17It was submitted by Mr Dhanji SC that the primary Judge had focused on the issue of delay in his judgment refusing the adjournment, but had failed to balance competing considerations which were relevant to the discretionary decision to be made. It was submitted that his Honour failed to have regard to the prejudice to the Applicant which was said to arise in the following ways: (a) the Applicant's trial was likely to conclude well before Shamoun's appeal is heard and, if the Applicant is convicted, he faced a lengthy period in custody in circumstances where, if Shamoun is subsequently acquitted by this Court, the impact of that judgment will be that the Applicant should have been acquitted at his first trial; (b) the Applicant at this trial is not able to cross-examine the central Crown witness, David Saad, about his evidence that Shamoun was the killer and the Applicant is not able to put a positive case that Shamoun was not the killer; (c) in the event that the Applicant is convicted and Shamoun is acquitted by this Court on appeal, there will be an inconsistency between that acquittal and the conviction of the Applicant - quite apart from questions of incontrovertibility and abuse of process, the inconsistency will tend to bring the system of criminal justice into disrepute. 18Whilst acknowledging that delay was a relevant consideration, Mr Dhanji SC submitted that the likely delay before this Court determined Shamoun's conviction appeal was not a decisive factor, given the delay by the Crown in taking four-and-a-half years to bring the Applicant to trial and the fact that the key Crown witnesses had all provided statements and given evidence on several occasions. 19Mr Dhanji SC noted that the Crown had sought to change its position for the purpose of the retrial, by contending that it would be open to the jury to convict the Applicant even if it was not satisfied beyond reasonable doubt that it was Shamoun who was responsible for the killing. Referring to R v King (1985) 17 A Crim R 184 at 188-189 and King v The Queen (1986) 161 CLR 423 at 433, Bellew J ruled (at [30]-[48]) that the Crown ought not be permitted to present its case at the retrial upon a different basis, so that a direction would be given that it was necessary for the jury to be satisfied that Shamoun killed Mr Carruthers before the Applicant could be convicted of murder. Mr Dhanji SC submitted that the Crown's desire to change its case should lead the Court to conclude that there was a real question as to whether Shamoun had killed Mr Carruthers, and thus there was substance in Shamoun's conviction appeal. 20The Crown submitted that leave to appeal should be refused in circumstances where the application was based upon what were, at best, two possibilities - firstly, that Shamoun would proceed with an appeal to this Court and secondly that, if he did, that he would be acquitted by this Court following that appeal. 21The Crown pointed to the consequence that a further delay in the trial may serve to erode recollections of witnesses to be called at the trial. 22The Crown emphasised, as well, the need for exceptional circumstances before this Court would grant leave to appeal under s.5F from a discretionary determination declining to adjourn a trial.
Determination of Application 23It may be accepted for the purpose of this application that, if Shamoun had been acquitted at trial in March 2012, or if this Court on appeal acquitted him of murder, then such a verdict would render it inevitable that the Applicant could not be convicted of the murder of Mr Carruthers. This is the product of the manner in which the Crown has conducted its case against the Applicant and will be required to conduct its case at his retrial. 24If Shamoun's appeal was ready to proceed with formulated grounds of appeal and written submissions which permitted an assessment of the strength of the grounds of appeal and, in particular, any ground of appeal that the verdict of guilty of murder was unreasonable or cannot be supported by the evidence, then the trial Judge and this Court would have been in a position to make some assessment of Shamoun's prospects of success. Further, the hearing of the appeal could have been expedited. However, this was not the scenario presented by the Applicant. 25The Applicant was not in a position to advance submissions of this type at first instance or before this Court. This was so even where the same senior counsel (not Mr Dhanji SC) had appeared for the Applicant at trial before Bellew J and a jury in February-March 2012, and was to appear for the Applicant again at the pending retrial. 26If, as appears to be the case, Shamoun's legal representatives did not take prompt action to lodge an appeal to this Court which was then prosecuted with due despatch, it was always open to the Applicant and his legal representatives to formulate by reference to materials in their possession (including the transcript of the trial of February-March 2012 and the summing up of Bellew J at the trial) the ways in which it could be said that the verdict of the jury on the murder count against Shamoun was unreasonable or could not be supported on the evidence. After all, it is said that the Applicant, in effect, had a vested interest in the outcome of Shamoun's appeal. 27Without an analysis of this type, this Court is left in the position that nothing more can be said than Shamoun proposes to press a ground of appeal contending that the verdict was unreasonable or cannot be supported. The bare possibility that such a ground will be pressed, associated with the bare possibility that the Court of Criminal Appeal may find merit in that ground with the prospect of acquitting Shamoun, constituted a tenuous basis for the trial Judge, or this Court, to determine that the interests of justice require that the trial of the Applicant be adjourned. 28I do not consider that the Applicant's case is advanced materially by reference to the Crown's attempt to change its approach at the retrial (see [19] above). That does not serve to demonstrate that Shamoun has good prospects of success on an appeal against conviction. 29It was not submitted for the Applicant to Bellew J that, given his Honour's function as trial Judge in February-March 2012, his Honour ought form a view concerning the weakness of the case against Shamoun on the murder count, and the corresponding strength of any ground of appeal that the verdict on this count was unreasonable. The fact that his Honour (at [59]) did not express any view on these matters does not assist the Applicant. 30In the result, this Court has been left with a flimsy basis for concluding that the interests of justice required an adjournment of the trial of the Applicant. Associated with this lack of information concerning the nature of Shamoun's grounds of appeal and the arguments to be advanced in support of those grounds, was the length of the delay before this Court would hear and determine any such appeal. 31On 1 February 2013, the Court stood the hearing of the application down to allow counsel to make enquiries of Shamoun's legal representatives concerning a likely timeframe for a more expeditious approach to preparation of the appeal. The Court was informed that junior counsel for Shamoun was preparing an advice on merits and draft grounds of appeal, which would form the basis for draft written submissions in support of the appeal. These documents were to be provided to the senior counsel to be briefed for the hearing of the appeal by 17 March 2013. On this basis, the Court was informed that grounds of appeal and written submissions for Shamoun were likely to be filed soon after 17 March 2013. 32Bellew J formed the view that, if the adjournment application was allowed, the hearing of any appeal would be four to six months away (with the Court likely to reserve judgment) and any trial of the Applicant would be in the vicinity of 12 months away, if not more (at [56]-[57]). The information provided to this Court, associated with the prospect of an expedited hearing of Shamoun's appeal, may have seen a lesser delay, but still one likely to extend to mid-to-late 2013. 33A consequence of these matters is that the Applicant is in no real position to assert, with any vigour, that he is at the risk of prejudice of being convicted by a jury at his trial of the murder of Mr Carruthers, in circumstances where there is a real prospect that Shamoun will, in due course, be acquitted of that charge so that the Applicant himself should also be acquitted. 34The very conduct of the adjournment application brought belatedly by the Applicant on the first day of the scheduled retrial, against the background of inaction of the type which I have mentioned, is a further consideration to be taken into account by this Court in determining whether leave to appeal ought be granted in this case. 35If the Applicant had taken the steps which I have mentioned, his position on the leave application, and possibly the appeal itself, may have been different. However, that is not the case. 36The trial Judge was entitled to take into account 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: R v Alexandroaia at 291. The significance of this consideration has been reinforced by the enactment of the case management provisions in ss.134-149F Criminal Procedure Act 1986. 37This Court has observed that it should be reluctant to interfere with the discretionary refusal of an adjournment application by a trial Judge. 38I was not persuaded that the circumstances of the case were such that this Court should grant leave to appeal against the refusal of the adjournment. 39It was for these reasons that I joined in the order made on 1 February 2013 that leave to appeal be refused. 40GROVE AJ: On 1 February 2013 I joined in making the order that leave to appeal be refused. I have had the opportunity to read in draft the reasons of Johnson J for also joining in making that order. I agree with his statement of reasons and am content gratefully to adopt them in lieu of publishing a separate statement to the same effect.
Amendments 07 March 2013 - Amendment made by CCA Bench following publication. Amended paragraphs: Judgment 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: 07 March 2013
Slotboom
R
Application for Leave to Appeal Under s.5F Criminal Appeal Act 1912 5This Court has made clear that the requirement for leave to appeal under s.5F(3) is a live question to be considered in the circumstances of the particular case: R v Matovski (1989) 15 NSWLR 720 at 722-723. 6In Agius v R [2011] NSWCCA 119; 80 NSWLR 486, the Court said at 489 [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]." 7The principles to be applied by this Court where an appeal is brought against the discretionary decision of a trial Judge refusing to adjourn a criminal trial were expressed in the following way in R v Alexandroaia (1995) 81 A Crim R 286 at 290 (footnotes omitted): "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."
(1989) 15 NSWLR 720
(1986) 161 CLR 423
(1993) 30 NSWLR 633
(2008) 71 NSWLR 31