A J P v the Queen
[2010] VSCA 224
•24 August 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| AJP | S APCR 2010 0258 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE, HARPER and HANSEN JJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 24 August 2010 | ||
DATE OF JUDGMENT: | 24 August 2010 | ||
MEDIUM NEUTRAL CITATION: | [2010] VSCA 224 | ||
JUDGMENT APPEALED FROM: | R v AJP (Unreported, County Court of Victoria, Judge Wilmoth, 3 August 2010) | ||
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CRIMINAL LAW –Application for leave to bring interlocutory appeal against refusal of adjournment of trial – Application hopeless and, therefore, dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Edney | Revill & Papa Solicitors |
| For the Crown | Mr C Beale Mr G Bair | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
HARPER JA:
HANSEN JA:
This is an application for leave to bring an interlocutory appeal against a decision of a judge of the County Court to refuse to adjourn the trial of the applicant on three counts of knowingly possessing child pornography.
According to the summary of the prosecution’s proposed opening, the applicant is a 47 year old male who worked as an IT consultant. He was employed at Norman, Disney and Young between December 2005 and August 2006. Between 18 August 2006 and 9 August 2007 police executed search warrants at two residential locations, 33 Buckingham Avenue, Bentleigh and an apartment at 1/435 Punt Road, South Yarra, and at one business location at 6/5 Queens Road, South Yarra. They seized numerous items of computer equipment from each location and upon examination found child pornography on computers from each location. The Crown alleges so finding 130,000 images of child pornography, 735 movie files depicting sexual activity involving a child and 16 documents with reference to sex with children, rape and incest.
The applicant was interviewed by police on two occasions, on 5 August 2007 and 18 April 2008, and he insinuated that the police had planted the pornography on the computers. Subsequently he was charged.
On 18 June 2008 the matter was mentioned in the Magistrates’ Court and adjourned to a contested mention. On 15 July 2008 the contested mention was adjourned to 5 September 2008. On the latter date it was adjourned again and on 20 March 2009, during the adjournment, the applicant pleaded guilty in the County Court to charges of financial deception and burglary, for which he was sentenced on 27 April 2009.
On 4 May 2009 the contested hearing of this matter commenced in the Magistrates’ Court but it was not concluded. During the course of the hearing, the Magistrate took the view that the charges ought be tried on indictment because of the gravity of the pornographic material.
On 18 August 2009, there was a committal hearing in the Magistrates’ Court and the applicant was committed to stand trial in the County Court.
On 15 September 2009, there was a first directions hearing in the County Court at which the applicant sought and was granted bail in relation to the subject offences. Bail was granted, notwithstanding that he was then serving the sentence imposed on him in the County Court for the financial deception and burglary charges, in order to avoid his being placed in protective custody.
On 2 July 2010, there was a final directions hearing in the County Court. At that hearing, the Crown filed two additional statements and counsel for the applicant sought an extension of time to file a defence response to the Crown opening and to obtain further instructions in relation to additional statements. The further hearing of the final directions hearing was thus adjourned to 16 July 2010.
On 16 July 2010, at the resumed hearing of the final directions hearing, the judge was told that the applicant’s solicitors (Revill and Papa) and counsel (Mr Sheridan-Smith) had been instructed to cease to act and that the applicant had engaged Tony Hargreaves as his solicitor, although funding was not yet in place. At that time, the applicant alleged that he was not receiving adequate psychotropic medication in gaol and foreshadowed that he would be making an application for an adjournment of the trial.
The matter was mentioned again on 19 July 2010 and the judge was told that funding for Mr Hargreaves was then still not in place.
There was then a further mention on 20 July 2010, at which the judge was told that Legal Aid funding had been confirmed but that the matter would be returning to the care of the original solicitors, Revill and Papa. On that occasion, the applicant raised an issue as to whether he was fit to plead, based on his claim that he was being deprived of access to adequate psychotropic medicine, and he again sought an adjournment of the trial on the basis that, without appropriate medication, he was unable sufficiently to instruct counsel. At the direction of the judge, the applicant was subsequently examined by forensic psychiatrist, Dr Danny Sullivan, who found that the applicant was fit to plead.
On 29 July 2010, there was a further mention of the matter, at which defence counsel stated that he would be applying for an adjournment of the trial on the basis that the applicant could not be expected properly to prepare his defence while in custody. The judge remitted the hearing of the application to the trial judge and adjourned the matter for trial to begin on 2 August 2010.
On and between 2 August 2010 and 5 August 2010, the trial judge heard the application for adjournment put on two bases. The first was that the applicant was unable properly to instruct counsel because of lack of privacy in the prison. It was said that the applicant was concerned that other inmates might overhear that he had been charged with child pornography offences, in which event he would be in fear for his safety. The second basis of the application was that the applicant was unable properly to instruct counsel without access to a computer to demonstrate how the pornographic images may have got onto his computer without his knowledge, when he was backing up other persons’ computers in order to repair them, as part of his work. Counsel sought an adjournment of the trial until after 14 September 2010, which is the day on which the applicant’s appeal against the sentence imposed on him for the financial deception and burglary charges is listed to be heard in this court. Counsel submitted to the judge that it was highly likely that the applicant would succeed in the appeal, at least to the extent of having the sentence reduced to time already served, and thus would be released from prison and be able fully to prepare his defence to the pornography charges.
The judge’s ruling
In her reasons for ruling, the judge recited the facts and bases on which the application was put, and then stated as follows:
This case has a somewhat unusual history in that it commenced as a summary matter in the Magistrates’ Court and proceeded to be heard as a contested matter in that court. During the hearing the learned magistrate considered the case was of such seriousness that it should be transferred to the jurisdiction of the County Court, and so it was placed in the committal stream. For the entire period before the Magistrates’ Court hearing, and for some period after that the defendant was at liberty and it would seem able to have prepared his defence for the hearing in that court. Indeed it was not until the Mention of this matter at court last week that the application for an adjournment for these reasons was foreshadowed.
Apart from some additional statements of Mr Jenson, the prosecution expert witness in relation to computers, the case has not changed in its nature or scope. I am not satisfied that there are sufficient reasons for an adjournment in this case. The application is refused.
The judge did not err
A trial judge has a discretion whether to grant an adjournment of a trial. In exercising the discretion, it is incumbent on the judge to consider not only the interests of the accused but also the interests of the Crown and the witnesses. Depending on the circumstances of a case, the exercise of discretion may involve a careful weighing of the interests of the accused, Crown witnesses, jurors and, generally, the administration of justice.[1] It is also necessary for the judge to keep in mind that justice delayed is justice denied and thus that, as a general rule, it is important that an accused be brought to trial expeditiously. It is inimical to the orderly disposition of the work of the courts that trials are adjourned unnecessarily.[2]
[1]McInnis v The Queen (1979) 143 CLR 575, 579 (Barwick CJ).
[2]Murphy v The Queen (1989) 197 CLR 414, 450.
Ordinarily, therefore, the exercise of discretion is something with which an appellate court is loath to interfere and, in a case like this, we ought not do so unless persuaded that the exercise of discretion has miscarried and that the judge’s refusal of the adjournment will prevent the applicant from presenting his case as fully as necessary within the limits of the law.[3]
[3]Bates v McDonald (1985) 2 NSWLR 89, 97 (Kirby P); Onus v Sealy (2004) 149 A Crim R 227, 237 [32] (Hayne J).
It has long been accepted that an application for the adjournment of a trial should be based on evidence.[4] Mere assertions from the Bar table leave a judge without the means to properly assess the merits of an application and are likely to result in its rejection. In this case, the application for adjournment was not supported by evidence. It was based solely upon the assertions of defence counsel as to supposed effects of the lack of privacy available in prison and the inability of the applicant properly to instruct counsel without access to a computer.
[4]Unless the facts are manifest or admitted: R v Jones [1971] VR 72.
In those circumstances, it is hardly surprising that the judge rejected the application. Against the background of delay and previous applications for adjournment, the absence of any explanation as to why it was the applicant had been ready to defend the proceedings in the Magistrates’ Court, but is not now prepared to defend them at trial, and the fact that the alleged inability to defend was asserted only for the first time after a succession of other bases of application for adjournment had been tried and failed, it is only to be expected that the judge would not be persuaded of the merits of the application.
No doubt ‘it is essential to the administration of justice that the standards required to secure a fair trial according to law should be insisted upon’ and that ‘one of these standards is that an accused person must be given full opportunity to present his defence.’[5] But, in this case, there was nothing to show that such if any difficulties as the applicant may face in preparing his case would prevent him from presenting his defence. And although the period of adjournment which was sought was relatively brief, and it was said that there were not any witnesses who would be significantly affected, it remained for the judge to balance those considerations against the desirability of avoiding further delay in this already protracted proceeding.
[5]R v McGill [1967] VR 683, 685.
Conclusion and orders
In the result, we see nothing to suggest that the judge failed to take into account any relevant consideration or that her Honour had regard to any irrelevant consideration or that, in the circumstances of this case, the conclusion to which her Honour came was one which was not reasonably open.[6]
[6]House v The King (1936) 55 CLR 499.
As it appears to us, the application for leave to appeal is hopeless and, therefore, should be refused.[7]
[7]As to the refusal of leave in hopeless cases, see and compare DPP v McDonald [2010] VSCA 45, [13] (Ashley JA).
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