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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Croke v The Queen

Details

AGLC: Croke v The Queen [2020] NSWCCA 8
Case: [2020] NSWCCA 8
Decision Date: 10 February 2020

CaseChat Overview and Summary

The matter of Croke v The Queen involved an interlocutory appeal from the refusal to adjourn or stay the trial of the accused. The crux of the dispute was the accused's assertion that he was effectively unrepresented due to circumstances beyond his control, specifically the return of his brief by his barrister just before the trial was set to commence. The prosecution's case relied on a witness who was in custody overseas, adding complexity to the situation. The appeal was heard in the court of appeal, where the key issues revolved around the fairness of proceeding with the trial under the given circumstances and the principles established in Dietrich v The Queen.

The court had to determine whether the accused's right to a fair trial was being compromised by his lack of representation and whether the necessity for counsel to effectively run the trial outweighed the prosecution's interest in proceeding. The principles from the case of Dietrich v The Queen, which established that a fair trial is contingent on the accused having adequate representation, were central to the court's deliberation. The court also considered the practicalities of securing a witness from overseas and the potential prejudice to the accused if the trial proceeded without his counsel.

In allowing the appeal and granting leave, the court found that the accused's right to a fair trial was indeed at risk due to the absence of his counsel at such a critical juncture. The court emphasised that it was not in the interests of justice to proceed without proper representation, especially when the accused had no fault in the matter. Consequently, the trial was stayed pending the accused securing new representation. The court's decision underscored the importance of ensuring that all parties in a criminal trial are afforded their rights as per established legal principles.

Orders