Croke v The Queen

[2020] NSWCCA 8

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Croke v R [2020] NSWCCA 8

Hearing dates:

4 February 2020

Date of orders:

04 February 2020

Decision date:

10 February 2020

Before:

Adamson J;
Beech-Jones J;
Ierace J

Decision:

(1)   Grant leave to the applicant to appeal from the refusal of Syme DCJ on 29 January 2020 to vacate the trial and the refusal of her Honour on 30 January 2020 to grant a temporary stay of the proceedings.

 

(2)   Allow the appeal.

 

(3)   Set aside the orders made on 29 and 30 January 2020.

 

(4)   Order that the trial of the accused be stayed up to and including 2 March 2020, save that the District Court may make interlocutory orders for the conduct of any trial on or after 2 March 2020.

 (5)   Direct the applicant to provide to the chambers of Adamson J any application for a non-publication order by 3:00pm this afternoon, if any such application is to be made.

Catchwords:

CRIMINAL LAW – interlocutory appeal from refusal to adjourn or stay trial – accused said to be effectively unrepresented through no fault of his own – accused’s barrister returned brief close to trial – prosecution case involved overseas witness in custody – principles in Dietrich – necessary for counsel to run trial – adjournment or stay required – leave granted – appeal allowed.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986

Cases Cited:

Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
House v The King (1936) 55 CLR 499; [1936] HCA 40
Marwan v Director of Public Prosecutions [2019] NSWCCA 161
R v Baker [2000] NSWCCA 85

Category:

Principal judgment

Parties:

Michael Anthony Croke (Applicant)
Regina (Respondent)

Representation:

Counsel:
D Dalton SC; T Edwards (Applicant)
D Patch; C Taylor (Respondent)

  Solicitors:
Kiki Kyriacou Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/266348

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 and 30 January 2020

Before:

Syme DCJ

File Number(s):

2015/266348

Judgment

1. THE COURT: Pursuant to s 5F of the Criminal Appeal Act 1912, the applicant, Michael Croke, sought leave to appeal an interlocutory judgment of Syme DCJ on 29 January 2020 refusing his application for an adjournment of his trial, which was set to commence that day. He also sought leave to appeal from a judgment delivered by Syme DCJ on 30 January 2020 refusing a temporary stay of his trial (the “30 January stay judgment”). After refusing those applications her Honour empanelled a jury but adjourned the trial pending this application.

2. Mr Croke’s applications for leave to appeal were heard by this Court on 4 February 2020. At the conclusion of argument, the Court made the following orders:

(1)   Grant leave to the applicant to appeal from the refusal of Syme DCJ on 29 January 2020 to vacate the trial and the refusal of her Honour on 30 January 2020 to grant a temporary stay of the proceedings.

(2)   Allow the appeal.

(3)   Set aside the orders made on 29 and 30 January 2020.

(4)   Order that the trial of the accused be stayed up to and including 2 March 2020, save that the District Court may make interlocutory orders for the conduct of any trial on or after 2 March 2020.

(5)   Direct the applicant to provide to the chambers of Adamson J any application for a non-publication order by 3:00pm this afternoon, if any such application is to be made.

3. At the time these orders were made the presiding judge, Adamson J, stated that reasons would be provided at a later time. This judgment constitutes those reasons.

Background

4. Mr Croke, who is a solicitor, is charged with six counts: two pursuant to s 319 of the Crimes Act 1900 (the Act) of doing an act, in his case making a false assertion, with the intention of perverting the course of justice; three pursuant to s 192G(b) of the Act of publishing a statement with the intention of obtaining a financial advantage; and one count pursuant to s 93T(1A) of the Act of participating in a criminal group.

5. Mr Croke and a co-accused, Craig Haeusler, were committed for trial to the District Court on 22 August 2016. The matter was first listed for trial on 16 October 2017. That date was vacated on 13 October 2017 on the application of the Crown, due to the unavailability of a key Crown witness, Owen Hanson, who is presently serving a lengthy prison sentence in the United States of America. The trial was re-listed to commence on 27 August 2018. That date was vacated on 22 August 2018, on the unopposed application of Mr Croke. His counsel had withdrawn and he had insufficient funds to brief new counsel at short notice. The applicant had been in a position to fund counsel for his trial in 2017, but in October 2017 he was served with a bankruptcy notice concerning an unpaid debt owed by him to the Australian Taxation Office. His payment of that debt had left him in a difficult financial situation, prompting his counsel to withdraw.

6. Mr Croke’s trial was subsequently relisted to commence on 26 August 2019. Arrangements were made by the Crown with authorities in the USA to transport Mr Hanson to Sydney to give evidence in the trial.

7. On 8 July 2019, Mr Croke made a further application to vacate the trial date, again on the basis that he was without representation. Mr Ainsworth of counsel appeared for the applicant and informed the Court that Mr John Korn of counsel had accepted a brief to appear on the trial, contingent upon the trial date, for which he was unavailable, being vacated. An affidavit from Mr Croke sworn 3 July 2019 was read on that application. Mr Croke stated that his solicitor, Mr Kiki Kyriacou, had agreed to act for him on the basis that he would not receive full payment for his legal services until after his trial was completed. Mr Croke also stated that Mr Korn had agreed to represent him at his trial on the basis that an amount representing less than his full fees, which had been deposited into Mr Kyriacou’s trust account, was allocated to pay Mr Korn’s fees and the “balance of his fees are to be paid either once funds are procured or at the conclusion of the trial, whichever occurs first”. Mr Croke further stated that:

“Mr Korn, however, has indicated that if the Court is prepared to shift the date, he will guarantee to the Court that full funding will not be an obstacle and he will give the Court the assurance that he will be in a position to start the trial on Tuesday, 28 January 2020.”

8. The application to vacate the trial was opposed by the Crown. His Honour Acting Judge Frearson SC granted the application, setting a new trial date of 29 January 2020, which was confirmed to be a date suitable to Mr Korn. A readiness hearing was set down for Friday 13 December 2019.

9. According to an affidavit of Mr Kyriacou sworn on 21 January 2020 and read on the most recent application for an adjournment, by the date of the readiness hearing, Mr Kyriacou was aware that “Mr Korn who was briefed to appear at the trial was in some difficulty as he may no longer be able to retain the brief”.

10. The background to this difficulty was that Mr Korn had been led by Senior Counsel appearing for one of two co-accused in a sexual assault trial in November 2019 (“the sexual assault trial”). The jury retired to consider its verdicts on 27 November 2019 and was discharged on 4 December 2019, having been unable to reach unanimous or majority verdicts in relation to multiple counts on the indictment.

11. On 5 December 2019, the trial judge for the sexual assault trial fixed a date for the re-trial. Her Honour informed the parties that the registry had advised that two dates for the retrial were available, being 24 February 2020 and a date in April 2020. The Crown indicated a preference for the April date. Mr Korn’s client and the co-accused preferred the February date. Given the age of that matter and that the two accused were foreign nationals who had been obliged to remain in Australia since early 2018 pending the trial, her Honour fixed the re-trial for the earlier date.

12. In his affidavit sworn 21 January 2020, Mr Kyriacou stated that on 6 December 2019 he attended a conference with Mr Croke and Mr Korn. He said that Mr Korn advised him of the listing of the sexual assault trial in February 2020 but that Mr Korn “was quite confident that this would not cause him a problem and that he was committed to appear for Mr Croke as he had previously agreed to appear”. According to his affidavit, at the readiness hearing on 13 December 2019, Mr Kyriacou requested a week’s adjournment to allow him time to clarify the situation, which was declined.

13. According to Mr Kyriacou, on 20 December 2019, which was the last day of term, at about 5.37pm, he was advised by Mr Korn that “he was unable to retain the brief and that his client would not release him from his commitment on 24 February 2020”.

14. On Monday 23 December 2019, Mr Kyriacou received a lengthy email from Mr Korn setting out the history of his involvement in the sexual assault trial and stating that his client in that matter “has not released” him from his obligations in that trial. Mr Kyriacou advised the Crown accordingly, requested their availability for the matter to be urgently re-listed and contacted various barristers’ chambers seeking alternative counsel. Generally, his attempts to contact other counsel were unsuccessful although some counsel indicated they were available subject to funding and having adequate time to prepare.

The Proceedings Before the Primary Judge

15. The matter was listed for the hearing of a notice of motion, filed on 21 January 2020, seeking an order that the date for the trial of the accused and co‑accused be vacated and that the trial be adjourned to a date to be fixed. The motion was heard by her Honour Judge Syme the following day. The instructing solicitor in the matter for the DPP, Ms Nicola Moir, in an affidavit affirmed on 21 January 2020, stated that arrangements were in place for Mr Hanson to be flown to Australia in time for the commencement date of the trial on 29 January 2020. New South Wales police officers were due to fly to the USA on 23 January 2020 to assist the transfer. Ms Moir also referred to the significant steps that had already been taken by various State, Federal and USA authorities to facilitate the transfer.

16. The hearing of the application commenced before Syme DCJ on 22 January 2020 and concluded the next day. The solicitor for the co-accused, Craig Haeusler, indicated that his client did not oppose the application. Aspects of the affidavit sworn by Mr Kyriacou on 21 January 2020 in support of that application have already been referred to. In that affidavit, Mr Kyriacou set out the steps he had taken, unsuccessfully, to retain alternative counsel. He said the brief comprised 30 folders of documents. He described the difficulty in rebriefing a matter involving that much documentation so close to the trial date. Mr Kyriacou also recounted his instructions that Mr Croke had placed premises he owned at Kings Cross on the market for sale. He annexed a sale agreement for the property entered into with a local real estate agent. Before the primary judge and this Court, the Crown did not dispute that Mr Croke had placed the property on the market with an auction date of 27 February 2020.

17. Mr Korn appeared before her Honour on the second day of the application, namely 23 January 2020. He made representations concerning his reasons for withdrawing from the matter. Her Honour refused the application for the adjournment, so that the commencement date of the trial remained 29 January 2020.

18. On 29 January 2020, the co-accused, Mr Haeusler, entered pleas of guilty to five counts on the indictment and two remaining counts were made the subject of a form filed under s 32 of the Crimes (Sentencing Procedure) Act 1999 (ie, a “Form 1”). The Crown Prosecutor indicated that the anticipated length of the trial, in which the applicant was now the sole accused, was still six weeks.

19. On that date a further application was made for an adjournment on behalf of Mr Croke. An affidavit was read from Mr Kyriacou sworn that day setting out the further steps he had taken since 23 January 2020 to secure counsel for 29 January 2020, without success. Mr Kyriacou stated that Mr David Dalton SC was available to appear in the trial if it commenced on 2 March 2020, subject to him being advised “over the next day or so” that the trial was relisted for that date. Mr Kyriacou expressed the opinion that, if the commencement date was not vacated, he was not suitably experienced to appear in the trial himself, to the point that the applicant’s trial would not be fair. In relation to the steps taken to bring Mr Hanson to Australia, he noted that the applicant had previously consented to him giving his evidence via audio visual link.

20. Her Honour delivered judgment refusing the application for an adjournment the same morning. When court resumed after the lunch adjournment, Mr Edwards of counsel appeared on Mr Kyriacou’s instructions, to move on a further notice of motion seeking an order “[t]hat a temporary stay be ordered pending counsel being instructed to represent the accused at trial”. He clarified that he sought that the trial be adjourned until 2 March 2020, so that Mr Dalton could appear. Mr Edwards submitted that a trial, without the applicant being represented by appropriate counsel, would be unfair and that the present situation arose through no fault of Mr Croke. The Crown opposed the application.

21. In the 30 January 2020 stay judgment her Honour noted that there were difficulties with the proposal that the trial be adjourned until 2 March 2020. Mr Hanson was now in Australia in order to give evidence and was scheduled to return to the USA on 19 February 2020. This was the third occasion that arrangements had been made to transport him to Australia, the earlier two attempts having been overtaken by the adjournments granted in 2018 and 2019. Her Honour stated that it was not certain that the relevant parties would be prepared to make arrangements for him to be brought to Australia a fourth time. Further, it was unlikely that a court would be available for the trial to commence on 2 March 2020, since fresh trial dates were not being allocated until around six or seven months hence.

22. Her Honour identified the issue as “whether a fair trial can occur in the absence of, in this case, Mr Croke being represented by either Mr Korn or Mr Dalton SC”. Her Honour stated that “the Court must look at all of the circumstances of a case, not only the circumstances of whether an accused does not have a counsel or a counsel of his choice”.

23. Her Honour noted the applicant’s background as a “legal practitioner with many years’ experience in the criminal law”, and that he was represented by a “competent solicitor”.

24. Her Honour addressed the complexity of the factual and legal issues in the trial. Her Honour noted the Crown submissions to the effect that half of the length of the trial was likely to be taken by the playing of recordings of telephone intercepts. Her Honour concluded that “this is not a complicated trial, it is not a trial of complicated legal issues” and the “main issue for the jury will be to decide whether and what inferences to draw from the telephone intercepts that they hear”. Her Honour then concluded:

“1.   Mr Croke is a person who is a criminal lawyer himself, he has a vast experience in criminal law;

2.   He is represented by a competent solicitor who as at 23 January, I indicated as far as I can see could manage to assist in trial of this matter.

3.   It is the duty of the Crown and the duty of the Court to ensure a fairness of trial proceedings and that will be a matter that will be uppermost in my mind and I have requested that it also be uppermost in the Crown’s mind during the presentation of the trial.

I do not propose to grant a temporary stay in these proceedings.”

25. Following delivery of the 30 January stay judgment, her Honour indicated that that the trial should commence. Mr Kyriacou then sought leave to withdraw, relying on an affidavit sworn by him of that date. In that affidavit he stated that he had no experience as a jury trial advocate, that as a sole practitioner he would be derelict in his duties to his other clients if he was required to appear as the trial advocate in this matter, that although junior counsel had been briefed in this matter to assist Mr Korn, that person had little experience and their brief was conditional on being led by experienced counsel and, finally, that he had not read all of the 30-volume brief. Her Honour refused the application to withdraw.

The Application to this Court

26. Mr Croke’s notice of appeal identifies the judgments appealed from: namely, the judgment refusing the application to vacate the trial date delivered on 29 January 2020 and the 30 January stay judgment refusing a temporary stay of the proceedings. At the hearing of the application leave to appeal was sought from the judgment refusing Mr Kyriacou leave to withdraw. In view of the orders made by this Court granting a temporary stay of proceeding until 2 March 2020 that application was not pressed.

27. It was common ground on the hearing of the application for leave to appeal that a decision to refuse an adjournment and to refuse an application for a temporary stay of proceedings were discretionary judgments and an appeal from those decisions was governed by the principles in House v The King (1936) 55 CLR 499 at 504 to 505; [1936] HCA 90 (“House”). Further all the parties focussed on the 30 January stay judgment as embodying the operative reasons for her Honour’s refusal to adjourn and stay the trial.

28. Grounds 1 and 2 of the proposed notice of appeal contend that the primary judge erred in refusing to vacate the trial and adjourn the proceedings until trial counsel could be secured to represent the applicant. Grounds 3 to 6 of the notice of appeal contend that the primary judge erred in “giving undue weight” to various matters, namely that Mr Croke is a solicitor (ground 3), that he would remain represented by Mr Kyriacou without the assistance of trial counsel (ground 4), that an adjourned trial date could not be accommodated by the court on 2 March 2020 due to listing difficulties (ground 5) and that there were potential difficulties for the Crown in securing a witness to attend in any subsequent trial should the matter be adjourned (ground 6). Ground 7 contended that her Honour erred in determining that her duty, and the duty of the Crown to ensure that the applicant has a fair trial, was a relevant factor in overcoming any potential unfairness.

29. The reference to an alleged error on the part of the trial judge in giving “undue weight” to various matters does not reflect any form of error referred to in House at 504 to 505 (R v Baker [2000] NSWCCA 85 at [11]). Instead, House relevantly refers to a judicial discretion miscarrying if “extraneous or irrelevant” matters affect the decision. Otherwise, in the exercise of a judicial discretion the weight to be attached to a relevant matter is for the primary judge although that is subject to the primary judge not acting “upon a wrong principle”, “mistak[ing] the facts” and the outcome not being “unreasonable or plainly unjust” (House id).

30. Given that the matters identified in grounds 3 to 6 were arguably relevant to the exercise of the primary judge’s decision to grant or refuse an adjournment (or a temporary stay) it is preferable to address grounds 1 and 2 and in doing so identify the relevant principle that should have guided her Honour’s decision to grant or refuse an adjournment. The basis for Mr Croke’s application on 29 January 2020 for an adjournment and the following day for a temporary stay was his contention that, through no fault of his own, he would not be properly represented at a trial that was about to commence. The approach to be adopted in addressing that contention was authoritatively stated by Mason CJ and McHugh J in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 (“Dietrich”). Thus, in Dietrich Mason CJ and McHugh J stated (at 311):

“A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained.” (emphasis added)

31. Later their Honours confirmed that the judgments of the majority in Dietrich enunciated “the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available” (Dietrich at 315). While this proposition is expressed by reference to an “indigent” accused, the discussion in Dietrich concerning the significance of legal representation to an accused’s trial being fair is not just confined to an accused who is not represented because they cannot afford it. It is capable of extending to other circumstances such as, for example, where the accused’s legal representative is unable to attend due to accident or misfortune and there is insufficient time prior to the trial to arrange new representation.

32. It is necessary to address three particular aspects of the above statements from Dietrich and their relevance to Mr Croke’s application before the primary judge, namely the potential effect of the absence of counsel on the fairness of Mr Croke’s trial, whether the absence of counsel was his fault and the approach that was required to be adopted to other considerations affecting the interests of justice.

33. In relation to the first matter, in the 30 January stay judgment her Honour noted a dispute in the authorities as to whether the test for a temporary stay is whether there is a “tangible risk that the trial would be unfair” or whether the “trial is likely to be unfair” (see Marwan v Director of Public Prosecutions [2019] NSWCCA 161 at [24] to [26]). It is not necessary to resolve that dispute on this application. It was accepted that her Honour did not make an express finding that Mr Croke’s trial is likely to be or at risk of being unfair if he was not represented by counsel. However, the Crown submitted that such a finding was implicit when regard is had to the passages from the 30 January stay judgment set out above. Accepting that such a finding was made then it was made by reference to four matters. The first was an assessment of her Honour that Mr Croke’s trial was “not a complicated trial” and that, although it will be a long trial, “the main issue for the jury will be to decide whether and what inferences to draw from the telephone intercepts that they hear”. The other three matters were set out in the passage from the 30 January stay judgment extracted in [24] above.

34. The passage from the 30 January stay judgment set out above contemplates Mr Kyriacou appearing on behalf of Mr Croke at the trial and Mr Croke playing some part in his own trial akin to that of a paralegal or a junior instructing solicitor. With respect to her Honour, Mr Croke cannot play any such role in the trial. He cannot participate in conferences with witnesses or draft correspondence. Unless otherwise ordered he will have to remain in the dock throughout the trial. Not only is he the accused, but the substance of the charge against him is that he perverted the course of justice including that he manipulated the conduct of legal proceedings. It would be inimical to the integrity of the trial and unfair to Mr Croke’s defence to require him to play an active role in the presentation of his case beyond that ordinarily played by an accused person facing trial.

35. As for Mr Kyriacou, it is no doubt accurate to describe him as “competent”. Although he has conducted hearings in the Local Court, his uncontested evidence was that he had never previously conducted a criminal trial, did not feel competent to conduct this jury trial and had not accepted instructions on the basis that he would conduct a jury trial. Moreover, Mr Kyriacou had not in fact prepared the matter for trial. The suggestion that he might conduct the trial was only first raised just prior to its commencement date and he has not had sufficient time to prepare to appear at the trial (as opposed to instructing counsel appearing).

36. As for the complexity of the trial, the uncontested evidence was that the trial was estimated to occupy around six weeks, that the prosecution brief consisted of 30 volumes and that Mr Hanson had travelled under escort from his place of incarceration in the USA to give evidence incriminating Mr Croke. Even if the “issues” in the trial might not be described as “complicated” that does not mean that the conduct of Mr Croke’s defence is straightforward. As Mr Dalton submitted, if a 30‑volume brief is provided to the defence then it is expected that the defence team will read it. The cross‑examination of an alleged participant in a joint criminal enterprise with the accused such as Mr Hanson requires careful preparation. Generally, long trials such as this are only “straightforward” and fair if skilled advocates co-operate to make them so. This trial was an unsuitable vehicle for Mr Kyriacou’s first attempt at jury advocacy especially if he is unwilling to appear.

37. Lastly, the existence of the duty of the Crown to act fairly and the duty of the Court to ensure a fair trial can obviously be accepted. However, it would be inconsistent with Dietrich (and the accusatorial system of justice) to regard those matters as overcoming the disadvantage faced by a person who must face a jury trial of a serious criminal charge of some complexity without appropriate legal representation. To proceed otherwise is to “act … upon a wrong principle” (House at 505).

38. With respect to the primary judge, to the extent that her Honour found that a trial of Mr Croke in which he would be represented only by Mr Kyriacou was either not likely to be unfair or there was no tangible risk that it would be unfair, that finding was unreasonable. To the contrary the only reasonable finding was that such a trial commencing on 29 January 2020 was likely to be unfair.

39. Second, the next relevant aspect of Dietrich concerns the responsibility of the accused person for the circumstance that they are to face trial on a serious criminal charge without effective representation. There was a dispute about whether her Honour made a finding as to whether it was Mr Croke’s fault that he was not represented by counsel. Mr Dalton pointed to a statement by the primary judge in the stay judgment that “I do not suggest that Mr Croke is at fault in releasing Mr Korn in those circumstances”. Leaving aside that Mr Croke did not “release” Mr Korn, Mr Dalton contended that this statement acknowledges his lack of fault for Mr Korn not being available. Mr Dalton submitted that, in view of Mr Kyriacou’s evidence and the absence of any finding attributing responsibility to Mr Croke for the absence of counsel, it should be concluded that the primary judge proceeded on the basis that the absence of counsel for a trial starting on 29 January 2020 was “through no fault” on the part of Mr Croke in the sense discussed in the above passage from Dietrich.

40. Counsel for the Crown pointed to the following passage in the stay judgment as constituting a finding by the primary judge that the absence of counsel was the result of fault on the part of Mr Croke:

“I have been provide[d] with an affidavit of Mr Kyriacou which sets out that Mr Croke apparently owns an unencumbered property in Potts Point valued in the vicinity of $2.3 to $2.5million. There is no explanation as to why, when for example Ms Francis was instructed in 2018 or when Mr Korn was instructed in 2019, arrangements were not made to free up those funds in order to fund his defence. The fact that it has taken two refusals of an adjournment application for him to apparently place that property on the market in order to obtain other representation [suggests] that Mr Croke has not been diligent in obtaining his own counsel representation.”

41. Even allowing for the ex tempore nature of the judgment, this passage falls short of a finding that the absence of counsel for the forthcoming trial was Mr Croke’s fault. In any event it involves a “mistake [… as to] the facts” (House at 505). There was an explanation for why arrangements were not made to free up funds by selling property when Mr Korn was instructed in 2019, namely that Mr Korn had agreed that was not necessary to do so in order for him to conduct the trial. Further, it was not correct that there were two refusals of an adjournment application before the property was placed on the market. The evidence before the primary judge was that Mr Croke’s property was placed on the market on 21 January 2020 prior to her Honour refusing the adjournment applications made on 23 January 2020 and 29 January 2020.

42. In this Court, counsel for the Crown sought to expand the basis on which it was contended that the unavailability of counsel for the trial was Mr Croke’s fault. The Crown pointed to the period between 6 December 2019 when Mr Korn first raised the possibility that he may not be available for the trial and late on 20 December 2019 when he confirmed that he was not. It was submitted that Mr Kyriacou should have commenced making inquiries of other counsel during that period to ascertain their availability. The Crown also referred to the period from 20 December 2019 to 21 January 2020 when Mr Croke placed his property on the market. The Crown contended that Mr Kyriacou’s attempts to find alternative counsel during that period were hampered by the terms and conditions that had been agreed upon with Mr Korn, which reflected an unreasonable failure of Mr Croke to provide or at least offer funding for counsel. The Crown effectively contended that the property should have been placed immediately on the market when it was apparent that Mr Korn either might not or would not appear at the trial.

43. Four matters should be noted about this submission. First, while it might be said with the benefit of hindsight that Mr Kyriacou should have commenced making inquiries of other counsel from 6 December 2019 it cannot be said that his failure to do so was unreasonable, much less that it demonstrates fault on the part of Mr Croke. Mr Kyriacou’s evidence was that Mr Korn was “confident” that he would be able to appear for Mr Croke. Given that Mr Korn’s leader in the sexual assault trial was available for the retrial, it was reasonable for Mr Kyriacou to accept Mr Korn’s statement.

44. Second, it is notoriously difficult to find counsel in the Christmas period when Mr Kyriacou commenced undertaking inquiries of the availability of other counsel.

45. Third, even accepting that Mr Croke should have placed his property on the market from around 20 December 2019, it is highly doubtful that it would have made any difference to the position he found himself in late January 2020, namely without Counsel to represent him at a trial due to start on 29 January 2020. There is almost no chance that the settlement of any sale of the property could have occurred before the trial commenced and thus any counsel who accepted the brief to appear would have been doing so on the basis that Mr Kyriacou was not yet in funds. Further, as Mr Dalton submitted, the most likely consequence of any counsel accepting the brief would be that their acceptance was conditional on them having time to prepare the matter. As time marched on, that would have necessitated an adjournment in any event.

46. Fourth, to the extent that the Crown’s submission is critical of Mr Kyriacou, it should be noted that he was not cross‑examined on those contentions and given an opportunity to respond.

47. The absence of available counsel for the trial due to commence on 29 January 2020 was occasioned by Mr Korn confirming his unavailability to appear late on the afternoon of 20 December 2019. Up until that time both Mr Kyriacou and Mr Croke were entitled to accept that Mr Korn would appear at the trial and do so on a basis that did not require Mr Croke to sell assets and provide funds for counsel prior to the trial commencing. Although further steps may have been taken by Mr Croke from 20 December 2019, such as immediately placing his Kings Cross property on the market, he would still have had to apply for an adjournment of his trial. In those circumstances the only reasonable conclusion is that the absence of available counsel for Mr Croke’s trial on 29 January 2020 was a circumstance that was not occasioned through any relevant fault on Mr Croke’s part.

48. The third matter concerns the significance of other matters affecting the interests of justice which were referred to by the primary judge, namely, the available listing dates and the potential unavailability of Mr Hanson at any adjourned trial. On the hearing of this application the Crown tendered material indicating that, if the trial was adjourned, Mr Hanson would be required to return to the USA and his further attendance would depend on the obtaining of permissions from various government agencies in the USA which cannot be guaranteed. It was also submitted that it would not be suitable for Mr Hanson to give evidence via video link from the USA given that the Crown proposes to elicit his evidence in chief over approximately three weeks while playing telephone intercepts. We express no view on whether this renders evidence by video link unsuitable.

49. It can be accepted that the limited hearing dates and the potential difficulties in securing Mr Hanson’s attendance are matters that would be of real significance if the primary judge was faced with either an application for an adjournment or to fix a hearing date that did not involve Mr Croke being denied effective representation through no fault of his own. However, as the above passage from Dietrich makes clear, once it is found, as it had to be, that to not adjourn the trial would result in Mr Croke facing a trial on a serious charge without effective representation through no fault of his own then only in “exceptional circumstances” could he be forced on. It is neither necessary nor possible to define what might constitute exceptional circumstances although the occasioning of significant distress to a victim of crime from the further adjournment of a trial may suffice. In this case, and while it is a serious matter, the potential difficulty in securing Mr Hanson’s attendance again to give evidence does not meet that standard.

50. It follows from the above that, even allowing for the ex tempore nature of her Honour’s judgment, this Court was satisfied that, in considering Mr Croke’s applications, the primary judge failed to apply the approach stated in Dietrich and thus acted upon a “wrong principle” (House at 505) and that, in some relevant respects, her Honour mistook the facts (House id). The end result was that the decision to refuse an adjournment of the trial and a temporary stay was “unreasonable or plainly unjust” (House id). Given those conclusions we determined to grant leave to appeal and allow the appeal.

Other Matters

51. Three further matters should be noted.

52. First, nothing in this judgment should be taken as accepting that Mr Korn acted consistently with his ethical obligations in returning his brief to appear on behalf of Mr Croke or in not seeking leave of the Court to do so, particularly at a time so proximate to the commencement date of the trial. On this application there was tendered an email sent from Mr Korn on 22 January 2020 to a Senior Counsel made available to him by the Bar Association in which Mr Korn recounted the effect of advice from that Senior Counsel that his brief to appear for Mr Croke was “ethically returned”. At this point it suffices to note that the email exchange does not record that the Senior Counsel was advised that the trial of Mr Croke was specially fixed to suit Mr Korn in circumstances where Mr Hanson was to be brought from the USA and that Mr Korn had agreed not to require his fees be secured prior to the trial. It was these particular matters that have inexorably led to the adjournment of the trial and the detriment to the administration of justice that will follow from that adjournment.

53. Second, in September 2017 Mr Croke signed an election for a judge alone trial pursuant to s 132(2) of the Criminal Procedure Act 1986. This Court was advised that his application for a judge alone trial was ultimately not pressed. On this application the Crown advised that if the application was renewed it would consent to a judge alone trial.

54. Finally, it is necessary to explain the form of substantive relief that was granted on 4 February 2020, namely a temporary stay until a specified date as opposed to an adjournment of the trial to a new date. This approach was taken to ensure that the control of the listing of trial dates remains with the District Court and not this Court. The date of 2 March 2020 was selected as it represents the date Mr Dalton said he was available and it otherwise represents the date from which alternative counsel can be reasonably expected to be ready to commence a trial of the length that is anticipated. Further, by that time Mr Croke will have had sufficient time to sell his property (the auction having been arranged for 27 February 2020) and secure funding or the promise of funding for counsel. In that regard, the favourable arrangement he reached with Mr Korn is now over. It also follows that any application for a further adjournment or stay must be assessed on the basis that he not only has the assets to fund his defence but he also has had the opportunity to realise those assets. If he fails to take expeditious steps to sell his property then he can expect to face trial unrepresented.

55. It was for these reasons that the Court made orders on 4 February 2020.

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Decision last updated: 21 April 2020