It v The Queen

[2020] ACTCA 57

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	IT v The Queen
Citation:	[2020] ACTCA 57
Hearing Date:	12 June 2020
Decision Date:	12 June 2020
Before:	Burns J
Decision:	See [25]
Catchwords:	APPEAL – APPLICATION FOR LEAVE TO APPEAL – interlocutory orders – where applicant is self-represented – application for stay of proceedings – failure of prosecution to file
election to have charge dealt with summarily within appropriate
time period – whether applicant owed any compensation –
consideration of fact that applicant did not consent to summary
jurisdiction – application for adjournment of trial – consideration
of likelihood of success
Legislation Cited:	Court Procedure Rules 2006 (ACT) rule 5311 Family Violence Act 2016 (ACT) s 43(2)
Legal Aid Act 1977 (ACT)
Parties:	The Queen (Crown)
IT (Accused)
Representation:	Counsel
P Dixon (Crown) Self-represented (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown) Self-represented (Accused)
File Number:	ACTCA 21 of 2020
BURNS J:

1. The applicant, IT, is currently awaiting trial before this Court with respect to one count on an indictment dated 3 October 2019 alleging an offence on 12 September 2018 contrary to s 43(2) of the Family Violence Act 2016 (ACT).

2.       The applicant was committed for trial to this Court from the ACT Magistrates Court on 9 August 2019. How that came to be is a matter which requires some explanation. As I understand it, the charge which was before the ACT Magistrates Court was a charge that could be dealt with in the Magistrates Court either on the basis of an election made by the prosecution in that Court to have the charge dealt with summarily or in the absence of such an election, based upon a consent given by the accused person to the Magistrate.

3.       It appears that the prosecution in the ACT Magistrates Court proceedings neglected to file, within the appropriate time period, the election to have the charge dealt with summarily. The consequence of that as I apprehend it, was that the charge could only be dealt with in the ACT Magistrates Court if the applicant, who was the defendant in those proceedings, consented to the charge being dealt with summarily. Otherwise, the Magistrate was obliged to commit the charge for trial to this Court.

4.       I have been provided with a copy of the transcript of the proceedings before the Magistrate on 9 August 2019. It is fairly clear that the applicant declined to consent to the jurisdiction of the ACT Magistrates Court and as such, the Magistrate had no choice but to commit the charge for trial to this Court.

5.       The matter is currently listed for hearing this coming Monday, 15 June 2020. That hearing date was allocated on 24 February 2020 at a time when the applicant was before the Court, so that he has had very significant notice of the trial date.

6.       The matter came before Murrell CJ on Wednesday this week, being 10 June 2020, for call over. At this time, her Honour listed the matter for trial this coming Monday, 15 June 2020 before herself. At that time, as I understand it, the applicant applied either for a stay of the proceedings or alternatively for an adjournment of the trial.

7.       Part of the applicant's argument with regard to the suggested stay of the proceedings was that he was entitled to be paid some amount by way of compensation for an error made by the prosecution in the ACT Magistrates Court. As I understand it, the error to which he refers is the failure of the prosecution to file within the appropriate time period the election to have the charge dealt with summarily. Even if one were to accept that that was, in any meaningful sense, an error on the part of the prosecution, it was not one which would entitle the applicant to any compensation. It was within the power of the applicant himself to remedy the situation by consenting to the jurisdiction. This he failed to do.

8.       The fact that the matter has now proceeded to this Court for a trial before a jury is directly referable to the decision of the applicant not to consent to summary jurisdiction and is not so referable to any failure by the prosecution in the ACT Magistrates Court proceedings to file an election for summary hearing of the charge.

9.       The application for a stay of the proceedings or, alternatively, an adjournment of the trial before the Chief Justice on Wednesday of this week, was refused by the Chief Justice. By an email sent by the applicant at 12:49 am this morning, 12 June 2020, to the chambers of the Chief Justice and also to the ACT Director of Public Prosecutions, the applicant purported to lodge an application to appeal from the orders of the Chief Justice refusing a stay of the proceedings against him and refusing an adjournment of the trial.

10. At my direction, my chambers responded to that email at 10:14 am this morning indicating that the Chief Justice had requested that I deal with this matter. At my direction, my chambers advised the applicant that if his email was intended to be an application for leave to appeal to the Court of Appeal from an interlocutory order made by the Chief Justice on 10 June 2020 refusing his application for a stay of the criminal proceedings, that it did not comply with the mandatory requirements of rule 5311 of the Court Procedures Rules 2006 (ACT) (the Court Procedures Rules), in that it was not accompanied by an affidavit showing the nature of the case, the questions involved and the reasons why leave should be given; and was also not accompanied by a draft notice of appeal.

11. The applicant was advised that the Court would not, in those circumstances, accept his email as an application for leave to appeal. The applicant responded, in effect, applying under the Court Procedures Rules for the Court to dispense with the application of the rules insofar as they related to his application for leave to appeal.

12. I then directed that the matter be listed before me this afternoon, 12 June 2020, to hear, firstly, the application by the applicant that I dispense with the application of the Court Procedures Rules; and, secondly, if the first application was successful, whether to grant him leave to appeal from the orders made by the Chief Justice.

13.     As part of the notification to the applicant of this afternoon's proceeding, he was advised that he needed to bring with him any evidence upon which he proposed to rely in his application. I will come in a moment to the material which has been produced by the applicant, but I think that it is fair to say that one may divide his submissions into two broad headings:

• firstly, that he is not currently represented by a legal practitioner and that it would be unfair on him to require him to conduct the trial without legal representation; and

• secondly, that his health is such that he is incapable of currently conducting his defence by himself and without legal representation.

14.     With regard to the fact that the applicant is unrepresented at the present time, he asserts that he has been trying to get Legal Aid for some 12 or 18 months. He has not produced any evidence relating to his attempts to obtain Legal Aid and the reasons for his failure to be granted Legal Aid, based upon any application which he may have made, other than an email dated 24 February 2020 from the Legal Aid Office, and in particular KF, who is apparently the Grants Manager at that office.

15.    That email indicates that KF acknowledged the applicant's email dated 21 February 2020 requesting a review of an application for Legal Aid. It noted that Client Services for Legal Aid had refused his application for Legal Aid on 26 September 2019 and in that letter he was informed that he could ask for the decision to be reconsidered by putting a request in writing within 28 days. No request for reconsideration was received before 26 September 2019.

16.     KF noted that under the Legal Aid Act 1977 (ACT) the 28-day time period to seek a reconsideration can be extended to 56 days where reasonable cause is shown. However, no reconsideration request was received before this extended time period either. The Act, said KF, does not give Legal Aid the power to reconsider the initial decision or convene a review committee if a request is lodged outside of the time limit stipulated, and accordingly, she suggested that he may wish to submit a new application for Legal Aid which could be considered by Client Services in accordance

with Client Services’ obligations and usual practices.

17.     In relation to an application relating to criminal proceedings, and it is unclear whether that covers the present proceedings, KF referred to a Client Services correspondence dated 11 December 2019 seeking further information. It requested that the applicant provide the further information by 28 February 2020. It then stated that after that date the applicant would need to submit a new application and supporting information. I note that there is now some indication that an application for Legal Aid is being processed by the Legal Aid office, however there is very limited information as to when that application was lodged or the nature of the dealings between the applicant and the Legal Aid office relating to any such application for Legal Aid. As I indicated, this is a matter which has been before this Court since August 2019, so that it is clear that the applicant has had more than ample time to arrange for legal representation.

18.     In the course of his submissions to me today, it has become reasonably clear that the applicant intends to defend the charge before this Court on a number of alternative bases. His primary defence will be that he did not send the messages which form the subject of the charge. Alternatively, he will seek to either argue that the legislation under which the charge is brought is invalid or that the facts do not constitute the offence. Finally, it would seem to be the case that the applicant will seek to argue that the orders which are the basis of the charge were superseded by orders made by the Federal Circuit Court.

19.     These are not difficult defences. The factual circumstances surrounding the present charge appear to be within very narrow compass such that it would not be beyond the capability of any reasonably intelligent lay person to put their defence before the court.

20.     The second matter to which the applicant has referred is mental health issues. In that regard, the material which has been put before me is very thin. There is a letter dated 11 June 2020 from Dr Kalpesh Lad which states that the applicant is currently under a

mental health care plan for “acute stress and mood disorder”. There is nothing in that

document that asserts that the applicant could not, with appropriate breaks in the trial, conduct his own defence with regard to what is a fairly simple and straightforward prosecution.

21.     Secondly, there is a letter from Mr Ben Pillett dated 2 March 2020. I understand from the qualifications which are referred to on that letter that Mr Pillett is a clinical psychologist. That letter stated that as at 2 March 2020, the applicant's mental health symptoms had improved with treatment. Now, clearly the letter of 11 June 2020 from Dr Lad updates that information somewhat.

22.     Finally, there was a letter from Dr Fowosere dated 24 July 2019 which refers to the applicant having consulted him over severe pain in his buttocks from prolonged sitting in a non-cushioned chair at trial, which I would understand to be a reference to the proceedings in the ACT Magistrates Court. He suggested the use of a cushion to assist the applicant or that alternatively, the applicant be allowed to sit or stand as required during any proceedings.

23.     That material is not particularly cogent in establishing that the applicant has either physical or mental health issues which would preclude him from being able to properly conduct his own defence with regard to what is, as I said, a fairly simple and straightforward prosecution. I would be prepared to make an order dispensing with the application of the rules in order to be able to deal with the substance of the applicant's application for leave to appeal from the orders made by the Chief Justice.

24.     The most significant issue, in my mind, with regard to that application is the likelihood of success, or to put it another way, whether there is any real prospect of the applicant being successful in any appeal from the orders made by the Chief Justice.

25.     On the material before me, I am not satisfied that there is any real prospect of success if the applicant is given leave to appeal from the interlocutory orders made by the Chief Justice. For that reason, I will refuse the application for leave to appeal.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: