Achanfuo-Yeboah v The Queen (No 2)
[2017] ACTCA 11
•5 April 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Achanfuo-Yeboah v The Queen (No 2) |
Citation: | [2017] ACTCA 11 |
Hearing Dates: | 24 March 2017 |
DecisionDate: Reasons Date: | 30 March 2017 5 April 2017 |
Before: | Refshauge J |
Decision: | 1. That the stay of the sentence imposed on David Achanfuo-Yeboah on 26 May 2016 be extended to 4:00pm on 5 May 2017 and his bail be continued as varied by the addition of the following conditions: (a) That Mr Achanfuo-Yeboah deposit into the trust account of John O’Keefe, Solicitor, no less than $1000 on or before each of the following days: Friday 7 April 2017, Thursday 13 April 2017, Friday 21 April 2017, and Friday 28 April 2017, and a copy of the trust account receipt for each payment be filed in Court for each payment by the close of the next business day after the payment. (b) That Mr Achanfuo-Yeboah sell his 1994 model BMW sedan motor vehicle on or before 21 April 2017 and deposit the nett proceeds of such sale into the trust account of John O’Keefe, Solicitor, within two working days of the completion of the sale, and a copy of the trust account receipt for the deposit be filed in Court by the close of the next business day after the deposit. (c) That Mr Achanfuo-Yeboah prosecute the appeal without delay. 2. That leave to given to Ben Aulich and Associates to withdraw the application under r 5538 of the Court Procedures Rules 2006 (ACT). |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – variation of bail – application for an extension of the stay of sentence – special and exceptional circumstances required – financial requirements to secure legal representation – bail and stay of sentence extended until the appeal |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 5538, 5606 |
Cases Cited: | Achanfuo-Yeboah v The Queen [2016] ACTCA 71 |
Texts Cited: | Supreme Court of the ACT Practice Direction |
Parties: | David Achanfuo-Yeboah (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr J O’Keefe (Appellant) Mr T Buckingham (Respondent) |
| Solicitors John O’Keefe, Solicitor (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 20 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 25 May 2016 Case Title: R v Le Clair; R v Yeboah Citation: [2016] ACTSC 126 |
REFSHAUGE J:
The applicant, David Achanfuo-Yeboah, was sentenced on 25 May 2016 to a total term of imprisonment of three years and five months on his pleas of guilty to charges of unlawful confinement and of trafficking in a traffickable quantity of cannabis. The term of imprisonment commenced on the day on which he was sentenced.
On 21 June 2016, he commenced an appeal against the sentence on the grounds that the sentence was manifestly excessive and that there were compassionate grounds for a less severe sentence. The appeal has been listed to be heard on 5 May 2017.
He applied for a stay of his sentence and for bail on 19 July 2016 which application was dismissed by Elkaim J on 3 August 2016.
On 15 September 2016 he made a further application for a stay of his sentence and for bail. I heard it on that day, but adjourned to allow Mr Achanfuo-Yeboah to obtain some further information. It seemed to proceed at a leisurely pace thereafter because Mr Achanfuo-Yeboah had some difficulty in providing that information. In any event, on 23 December 2016, I granted a stay of the sentence and I released Mr Achanfuo-Yeboah on bail. See Achanfuo-Yeboah v The Queen [2016] ACTCA 71.
After consultation with the parties and accepting all submitted conditions, I granted the bail on strict conditions. These conditions were as follows:
1. That Mr Achanfuo-Yeboah accept supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him.
2. That he reside at 4/5 Tennison-Woods Circuit Bonython ACT 2905.
3. That Mr Achanfuo-Yeboah not absent himself from his place of residence between 8:30pm and 6:30am daily.
4. That Mr Achanfuo-Yeboah report to the Officer-in-Charge of Woden Police Station each day from 24 December 2016 between the hours of 7:00am and 8:00pm daily.
5. That no later than 3 January 2017 Mr Achanfuo-Yeboah enter into a contract to provide painting services with Nick Johnson Painter and continue to provide such services for Mr Johnson.
6. That if for any reason, his contract with Nick Johnson is terminated or Mr Johnson ceases to provide him with remunerated work, Mr Achanfuo-Yeboah present himself within two working days to the Registrar of the Supreme Court of the ACT for a review of his bail.
7. That Mr Achanfuo-Yeboah not consume alcohol or illicit drugs.
8. That Mr Achanfuo-Yeboah submit to urinalysis or breath analysis whenever reasonably required by the person supervising him or by any police officer to whom he reports at Woden Police Station.
9. That Mr Achanfuo-Yeboah not leave the ACT without the express prior permission of the person supervising him.
10. That Mr Achanfuo-Yeboah not approach within 100 metres of the Canberra Airport terminal building.
11. That Mr Achanfuo-Yeboah present himself to the Alexander Maconochie Centre for re-admission no later than 10:30am on 24 March 2017.
12. That Mr Achanfuo-Yeboah report to ACT Corrective Services forthwith at Level 1, 249 London Circuit, Canberra City, to his arrange supervision.
It is not alleged that Mr Achanfuo-Yeboah has breached any of his bail conditions, nor is there any allegation that he has committed further offences.
Mr Achanfuo-Yeboah has, however, now applied for an extension of the stay and a variation of his bail to extend it until the hearing of the appeal.
The earlier decision
In Achanfuo-Yeboah v The Queen at [13]-[15], I accepted that, in order to justify the grant of a stay and bail, an applicant had to show special or exceptional circumstances favouring the grant of a stay and favouring the grant of bail.
After rejecting a number of the grounds put forward to support the application, I found that Mr Achanfuo-Yeboah’s need for, and his reasonable opportunity legally to obtain, funds to afford legal representation, together with the other matters, did constitute special or exceptional circumstances. I said in Achanfuo-Yeboah v The Queen at [62]-[64] and [66]:
62.I am satisfied, therefore, that the importance of legal representation is such that in appropriate circumstances the Court should make efforts to facilitate such representation where it can reasonably be done. I do bear in mind that reasonable caveat to be taken from the comments of Cross Ch QS in R v Wakefield to which I have referred above (at [48]).
63.Mr Achanfuo-Yeboah told me that he would be able to earn sufficient funds in 12 weeks to pay for his legal representation. As noted above (at [33]), that remuneration work is available to him.
64.It seems to me that, with appropriate evidence that there are legal means by which an appellant may fund the appeal which he has taken as of right, where legal aid has been declined and where there is an arguable ground of appeal the highly likely possibility that an appellant may earn sufficient to pay for legal representation is a special or exceptional circumstance.
...
66.While the other difficulties Mr Achanfuo-Yeboah is experiencing do not, of themselves, justify a stay or grant of bail, they do support the conclusion to which I have come that Mr Achanfuo-Yeboah has made out a case for a temporary stay. With these together, there is, in my view, a strong case of special or exceptional circumstances. See In the Matter of an Application for Bail by Massey [2008] ACTSC 145 at [28].
The facts
In support of the present application, Mr Achanfuo-Yeboah filed and served an affidavit. He gave oral evidence and was cross-examined. From that material, the Court file, and the submissions of counsel, I make the following findings.
Mr Achanfuo-Yeboah initially instructed the well-known firm of criminal law practitioners, Ben Aulich and Associates, to act for him. It appears he did so on 10 February 2017. There was no explanation of the delay in doing so though I accept that it can be difficult to secure an appointment with solicitors in January. The Crown made no complaint about this.
On 15 February 2017, that firm filed a Notice of Solicitor Acting in the Appeal. It appears to have been served on the Crown as respondent to the appeal.
Mr Achanfuo-Yeboah deposed that he had paid that firm $6300 in instalments towards a total cost for conducting the appeal on his behalf which he was quoted in the sum of $15 000. None of those assertions were challenged. Indeed, there was some corroboration in a letter dated 23 February 2017 from the firm which referred to an enclosed memorandum of fees, though that was not attached to the copy of the letter tendered to me, and an assertion in the letter that “there is nothing outstanding”. From this I infer that Mr Achanfuo-Yeboah did make an initial payment or payments.
He then said that the firm revised its fee estimate upward to $22 000 and required payment into trust of $15 700.
Again, this is to some extent corroborated by the letter, to which I have referred and which refers to a “revised scope of works, estimating my future legal fees ... [which] total $22,000” and seeking payment of $5000 by 2 March 2017 and a further $2000 by 9 March 2017.
Those further payments do not bring the total to $15 700 needed for the revised estimate, though they do amount to a significant payment in a relatively short time.
Mr Achanfuo-Yeboah then decided he had to change solicitors and has done so. On 24 March 2017, I permitted John O’Keefe, Solicitor, to file a Notice of Change of Solicitor. I shall refer to that further below (at [52]).
Mr O’Keefe has estimated his fees in the sum of $10 000 and, so long as Mr Achanfuo-Yeboah makes instalments and the total amount is paid into his trust account by the date of the hearing of the appeal, he is prepared to continue to act for him.
Mr Achanfuo-Yeboah has been working for Nick Johnson, as a painter. That was confirmed in unchallenged evidence in a letter from Mr Johnson which confirmed that Mr Achanfuo-Yeboah would be taking over all Mr Johnson’s work while he is overseas and that some of the charges for already completed work is to be paid directly to Mr Achanfuo-Yeboah by cash or into his bank account.
Annexed to Mr Achanfuo-Yeboah’s affidavit was a bank statement which showed receipts of payments from Centrelink and from painting work. Mr Achanfuo-Yeboah said that he was being paid benefits through Centrelink to which agency he had reported his other earnings.
He said that he has been earning about $1200 per week from painting and receives about $100 per week from Centrelink. After payment of his expenses, he has about $1000 per week left. He said that he had earned about $10 000 since being released on bail. The vague generality of this evidence was not explored in cross-examination.
Mr Achanfuo-Yeboah also deposed that he was expecting a refund of about $1300 from Ben Aulich and Associates and that he proposed to sell his car, a 1994 BMW
two-door sedan model 325i, for which he expected to receive about $5000. These amounts, together with his further earnings would enable him to pay Mr O’Keefe’s fees before the hearing of the appeal.
Further correspondence from Ben Aulich and Associates was admitted into evidence. It showed that Mr Achanfuo-Yeboah had, by 20 March 2017, failed to “deposit sufficient funds into [that firm’s] trust account as required” and application for leave to withdraw was made under r 5538 of the Court Procedures Rules 2006 (ACT), the rule being incorrectly referred to as a “section” of those Rules. Again, I refer to that below (at [50]-[59]).
Finally, Mr Achanfuo-Yeboah has an appointment on 3 April 2017 with Dr David Tridgell, an Eye Specialist. His eye condition, open angle glaucoma, was referred to in Achanfuo-Yeboah v The Queen at [22]. He agreed in cross-examination that he would be able to attend the appointment were he granted day bail for that particular day, though he suggested that there would be likely to be further appointments required as a follow up.
On 15 February 2017, the appeal was listed for hearing on 5 May 2017 at 10:15am. The appeal books were to be filed and served by 16 March 2017 and directions made for written summaries of argument and lists of authorities, legislation and texts which were substantially in accordance with Supreme Court of the ACT Practice Direction
No 1 of 2016, Applications and Appeals to the Court of Appeal: Filing of Documents and Appeal Papers.
In addition, the foreshadowed application for the admission of the further evidence had not been made in accordance with r 5606 of the Court Procedures Rules, though the time for that, although fast approaching, had not yet passed.
Submissions
Mr O’Keefe submitted that Mr Achanfuo-Yeboah would be able to be properly represented were he to remain at liberty so that he could continue to work and earn the funds needed to secure that representation.
He acknowledged that the requirements for preparation of the appeal were well behind schedule but that he was confident, based on prior experience, that he would be able to catch up and have the appeal ready in time.
He made it clear that, were the extension of the stay and bail not be granted, he would not be in a position to represent Mr Achanfuo-Yeboah.
Mr T Buckingham, for the Crown, submitted that the preparation for the appeal was well behind proper schedule and that very little seemed to have been accomplished to date. He was concerned that the hearing of the appeal would be compromised.
His cross-examination made it clear that he was submitting that the matter of Mr Achanfuo-Yeboah’s eye treatment did not justify the continuation of the stay and bail.
Consideration
This application is most worrying. While I do not resile from anything I said in Achanfuo-Yeboah v The Queen, the grant of a stay and bail was granted on limited terms as had been requested. As I recorded there at [63], Mr Achanfuo-Yeboah told me that 12 weeks would be sufficient for him to obtain the funds to retain legal representation.
The evidence before me is rather vague and general, but it was largely unchallenged. I do not have to accept it, but there is no basis for me to reject it. The best I could do was to find that Mr Achanfuo-Yeboah was a little vague and too casual in his dealings with this matter.
For example, he said he had been earning about $1000 per week nett and that he had earned about $10 000. That is entirely consistent with the bail requirement to commence work by 3 January 2017 which is, indeed, about 10 weeks ago. That, however, he has deposited only $6300 in the trust account of Ben Aulich and Associates and failed to pay anything further since 23 February 2017 was unexplained and not entirely consistent with evidence of his earnings. It was, however, not explored in evidence either by his counsel or in cross-examination.
Nevertheless, it is clear that, on his evidence, he would be unable to meet the financial requirements of Ben Aulich and Associates now but that he should be able to meet those of Mr O’Keefe.
Despite my unease about the details of the evidence in this matter, it is clear that Mr Achanfuo-Yeboah has been working and earning money which he has, at least in part, paid for legal representation. That is the objective which gave rise to the justification for bail.
That he chose lawyers whose fee requirements he could not meet is not a matter for which he can necessarily be criticised, though he has not acted as promptly to deal with that situation as he should have done. This has left the preparation of the appeal in a problematic state.
He has, however, now retained legal representation which, on the evidence, he can afford and his solicitor has asserted to the Court that he can prepare the appeal in time, provided he is to deposit the necessary funds.
It seems to me that it is in the interests of justice that Mr Achanfuo-Yeboah have legal representation if reasonably possible. It is also of benefit to the Court and will make the task of the respondent’s lawyers, the ACT Director of Public Prosecutions, somewhat easier.
Not without some hesitation, I am prepared to extend the stay and bail until the appeal. It seems to me, however, that I should make some further bail conditions to see that there is no further problem.
I disregard the matter of Mr Achanfuo-Yeboah’s eye care, largely for the reasons set out in Achanfuo-Yeboah v The Queen at [47]. As Mr Buckingham suggested in cross-examination and, indeed, as I there opined, that can be resolved by other means, such as day bail.
I have considered whether Mr Achanfuo-Yeboah has engaged in delay in order to defer his return to custody. I am not satisfied that I can find he has done so.
While he has not progressed the appeal with the diligence that I would have wished, it is by no means clear that this is due to his own inactivity as distinct from that of his lawyers. I had no information about those issues, save that none of the correspondence stated that work on the conduct of his appeal was being deferred pending the further payments requested. The issue was only lightly addressed in cross-examination.
It seems to me unlikely, even were his appeal to be successful, that he would not be required to serve at least some further period in custody, but that is not a matter for me and I have, of course, not heard the appeal. I do not consider that he has engaged in culpable delay.
The next hurdle would be were Mr Achanfuo-Yeboah to fail to meet his fee obligations to Mr O’Keefe and were Mr O’Keefe also to seek leave to withdraw.
It is not now and probably will not be a decision in which I am involved, but it may be assumed that the Court of Appeal, taking account the history of the matter, would be unlikely to grant leave for Mr O’Keefe to withdraw unless Mr Achanfuo-Yeboah had substantially failed to meet the agreed obligations.
Of course, had Mr Achanfuo-Yeboah failed to comply and Mr O’Keefe withdrew, so that Mr Achanfuo-Yeboah were then to be unrepresented, or, indeed, even were he to have found yet another lawyer, it seems to me extremely unlikely that the hearing of the appeal would be adjourned for either reason. Depending on the precise circumstances, it would be quite likely that the Court of Appeal would be able to find that Mr Achanfuo-Yeboah was the author of his own misfortune in not having legal representation and require the appeal to be heard even were he have to appear himself, unrepresented.
These remarks cannot bind any other court but will, no doubt, be drawn to the attention of any court required to consider these matters. My intention is to make it clear that both Mr O’Keefe and Mr Achanfuo-Yeboah are on notice that conscientious and genuine efforts are required to give effect to the perhaps generous opportunity Mr Achanfuo-Yeboah now has to be properly represented at his appeal, an important matter as I noted in Achanfuo-Yeboah v The Queen at [53]-[62].
To minimise these eventualities, I propose, therefore, to make further conditions to the bail granted to Mr Achanfuo-Yeboah that require payments and proof of them a condition of bail so as to ensure that there is a proper timetable that can be monitored and a sanction for any lapse in attention to having Mr Achanfuo-Yeboah represented, thus having the appeal properly prepared and presented.
Change of Representation
One further matter concerns the process of the change of solicitor. This was commenced by the application by Ben Aulich and Associates seeking leave to withdraw under r 5538 of the Court Procedures Rules. The application was originally listed for hearing on 5 April 2017.
Mr Achanfuo-Yeboah’s application for an extension of the stay and of bail, however, was listed to be originally heard on 24 March 2017. I directed that the application of Ben Aulich and Associates be brought forward for hearing on that day.
I gave leave to Mr O’Keefe on that day to file in Court his Notice of Change of Solicitor. It seemed to me that this rendered it unnecessary to consider substantively the application by Ben Aulich and Associates to withdraw. The effect of filing a Notice of Change of Solicitor is the transfer that representation of the party to the new solicitor by making the formal announcement to the Court in that way.
The apparent purpose of the rule, as explained in Plenty v Gladwin (1986) 67 ALR 26 at 27, though on a somewhat different rule, is to ensure the integrity of the records of the Court and the processes for service of documents. There are special provisions relating to the services of documents, especially when a party is represented, by virtue of the address for service required by the Court Procedures Rules, an important mechanism that I discussed in GJ v AS [2015] ACTCA 12 at [5]-[22].
As noted in Plenty v Gladwin at 27, it would require special circumstances before the undoubted discretion given by the rule would be exercised to decline to make an order to grant an applicant solicitor leave to withdraw if she or he no longer acted for the party. What those special circumstances may be has not been, and is unlikely to be, precisely defined.
It is clear that ordinarily the fact that the usual effects of a litigant appearing in person, resulting in the litigation being more complicated to conduct, perhaps more time consuming for the other party or parties, and more expensive, would not be a reason to exercise the Court’s discretion to refuse a grant of leave: see Re Creehouse Ltd [1982] 2 All ER 422 at 425.
It is clear from decisions such as Underwood, Son and Piper v Lewis [1894] 2 QB 306 that there are limits on the capacity of a lawyer to terminate a client’s retainer unilaterally. There is conflicting authority as to whether this is a matter that can be agitated on such an application: Plenty v Seventh Day Adventist Church of Port Pirie (Unreported, Supreme Court of South Australia, Lander J, 1 August 1996); Lauro v The Marble House of Australia [2013] SASC 17; Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171. It seems to me that it would not generally be desirable for a court to embark on such an inquiry, though a gross failure by a party’s lawyer to comply with the retainer termination provisions may constitute such a circumstance. See Levitt Robinson Solicitors v Pereira [2010] QSC 119.
Leave may also be refused where the application is made too close to a hearing. See Investec Bank (Australia) Ltd v Mann [2012] VSC 87. In that case, the Court at [9] made it clear that the role of the solicitors would thereafter be somewhat limited, stating:
[The solicitors] may be required to continue to receive documents from the plaintiff’s solicitors. It may require [the solicitors] to continue to convey to the defendants any documents service for them at [the solicitors]. Their status as officers of the Court may conceivably also require them to offer such assistance as the Court may require during the conduct of the trial. [The solicitors] may not be required to conduct the trial on behalf of their former clients without funding but may need to give such other assistance as may be required by the Court to lessen or eliminate the adverse impact upon the Court’s record or upon the orderly service of documents upon the defendants as the Court may direct. It is conceivable that greater duties may also arise but they could not be considered in the abstract...
In this case, once the Notice of Change of Solicitor had been filed, there was no need the for leave sought by Ben Aulich and Associates to be granted. Strictly, therefore, the application should be dismissed as the applicant solicitors are no longer the party’s solicitors. In any event, there is no utility in granting the leave, for the filing of the Notice of Change of Solicitor has met all the purposes for that grant of leave and there is no longer any need for such leave.
The solicitors may be more relaxed if the application were simply withdrawn. Either way, no substantive decision should be made on it.
Disposition
Accordingly, I permitted Ben Aulich and Associates to withdraw the application and I granted a further stay of the sentence imposed on Mr Achanfuo-Yeboah and extended his bail, with further conditions, until the hearing of the appeal.
These are my reasons for so ordering.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 5 April 2017 |
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