Munshizada v The Queen

[2020] NSWCCA 9

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Munshizada v R [2020] NSWCCA 9
Hearing dates:	4 February 2020
Date of orders:	04 February 2020
Decision date:	10 February 2020
Before:	Bell P at [1]; Basten JA at [58]; Payne JA at [83]
Decision:	The application for leave to appeal is dismissed.
Catchwords:	CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – whether decision was a judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW) – where applicant unrepresented due to his withdrawal of instructions from Legal Aid funded senior counsel and solicitors shortly before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services – whether refusing to vacate trial in the circumstances was “relevantly unfair” to the applicant – consideration of Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Legislation Cited:	Criminal Appeal Act 1912 (NSW) s 5F(3)
Cases Cited:	Alexandroaia v R (1995) 81 A Crim R 286 Bozatsis & Spanakakis v R (1997) 97 A Crim R 296 BWM v R (1997) 91 A Crim R 260 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Greer v R (1992) 62 A Crim R 442 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 Lethlean v R (1995) 83 A Crim R 197 McInnis v The Queen (1979) 143 CLR 575; [1979] HCA 65 R v BK [2000] NSWCCA 4; 110 A Crim R 298 R v Powch (1988) 14 NSWLR 136
Category:	Principal judgment
Parties:	Siar Munshizada (Applicant) Crown (Respondent)
Representation:	Counsel: P Lange (Applicant) B Hatfield, A Morris (Respondent)   Solicitors: One Group Legal (Applicant) The Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2016/00358164
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 30 Date of Decision: 03 February 2020 Before: Fagan J File Number(s): 2016/00358164

Judgment

Introduction

1. BELL P: On the afternoon of 4 February 2020, the Court heard an urgent application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) from an interlocutory order made by Fagan J on Friday 31 January 2020, dismissing an application to vacate a murder trial due to commence on Monday 3 February 2020. The applicant for leave to appeal, Mr Munshizada, is the accused.

2. Consistent with his Honour’s orders, that trial in fact commenced on 3 February 2020 but the jury was not empanelled on that day. Shortly after midday on 3 February 2020, Fagan J, who was also the assigned trial judge, was informed that an application for leave to appeal his orders in relation to the vacation of the trial was to be filed. Shortly thereafter, his Honour delivered written reasons for his orders refusing to vacate the trial: R v Munshizada [2020] NSWSC 30. Those reasons are the subject of a non-publication order.

3. The ground on which leave was originally sought was that the decision made by the learned trial judge was “unreasonable” and “not open on the evidence”.

4. Written submissions were received on behalf of the applicant and the Crown prior to the Court convening to hear oral submissions. The applicant’s written submissions included amended grounds as follows:

“(i)   His Honour erred in failing to assess the degree to which the fairness of the applicant’s trial might be impinged, if he were self-represented;

(ii)   His Honour erred in assessing that the reasonableness of the applicant’s dismissal of his previous legal representatives, as well as the weight to be given to the effects, which would flow from an adjournment, in circumstances where his Honour failed to have regard to the legitimate expectation generated by his Honour’s comments that the trial might be deferred for a short period, to permit other counsel to be retained;

(iii)   His Honour erred in concluding, in the absence of cogent evidence, that the prospect of stable legal representation was not “sufficiently realistic”;

(iv)   His Honour erred in taking into account the other impacts upon the administration of justice, in the absence of evidence, in particular the impact a long adjournment would have upon the approximately 40 witnesses the Crown proposes to call;

(v)   His Honour erred in failing to take into account the effect the applicant’s lack of representation in the present trial would have upon his subsequent trial;

(vi)   His Honour erred in finding the applicant acted unreasonably, because he dismissed his previous legal representatives for (on the evidence before his Honour) failing to follow his instructions;

(vii)   His Honour failed to take into account the seriousness of the charge, which the applicant is facing;

(viii)   In all of the circumstances, his Honour’s conclusion was not open to him.”

5. The seventh of these grounds was not pressed in oral submissions and the eighth ground was simply an omnibus ground which did not add to the previous grounds.

6. At the conclusion of the hearing, the Court pronounced its order refusing leave to appeal. These are the reasons for those orders.

Background

7. It is necessary to provide some background both as to the nature of the charge, the procedural history of the matter and the basis of the application for an adjournment.

8. In short, the applicant has been indicted for the murder of one Michael Davey on 30 March 2016 in Kingswood in the State of New South Wales. On 12 July 2019, the applicant was arraigned and pleaded not guilty to the charge. On the same day his trial, estimated to run for some six weeks, was fixed for hearing commencing on 3 February 2020. At the time the matter was set down for trial, the applicant was represented by Mr Driels of counsel and Zhar Partners, solicitors.

9. The applicant is also due to stand trial with two co-accused for the murders of Pasquale Barbaro and Mehmet Yilmaz in a trial fixed to commence on 30 March 2020 and to run for at least four months.

10. On 15 November 2019, by which time the applicant, supported by a grant of legal aid, was represented by Archbold & Co and Mr Stratton SC of counsel, the Court was informed by Mr Stratton, described by the learned trial judge as “an experienced and competent advocate”, that the case was ready to proceed on the fixed date, namely 3 February 2020.

11. The case was before the Court (both the list judge and Fagan J as the assigned trial judge) on five further occasions in November and December 2019 for mentions and the resolution of various minor interlocutory issues. Fagan J recorded that on the last two of these dates, namely 18 and 20 December 2019, both the Crown and Mr Stratton confirmed that the trial was ready to proceed on the appointed date.

12. On 21 January 2020, Fagan J’s associate was notified by Archbold & Co that the applicant had withdrawn his instructions to that firm and that “as such [they were] no longer acting for Mr Munshizada in his trial matters”, that is to say both the Davey trial and the Barbaro and Yilmaz trials. The email also noted that withdrawal of instructions extended to counsel who was briefed in the applicant’s matters, namely Mr Stratton in relation to the Davey trial and Mr Trevallion in relation to the Barbaro and Yilmaz trials.

13. Archbold & Co responsibly requested that the matter be relisted for a mention at Fagan J’s convenience, it being noted that 21 January 2020 fell within the annual Court vacation period. On receipt of this email, the parties were notified that the Davey proceedings would be relisted on Friday 24 January 2020 and the Court enquired of Archbold & Co as to the cause of the withdrawal of instructions. On 22 January 2020, that firm responded by email stating that it was understood that the applicant was of the view that “this matter [was] not ready to proceed to trial”.

14. The matter came on for mention in due course on 24 January 2020. On that occasion Mr Stratton, again with admirable responsibility given that his instructions had been withdrawn, appeared before Fagan J. The applicant was also present by audio visual link to Parklea Correctional Centre.

15. Early on in the mention on 24 January 2020, Fagan J enquired of Mr Stratton, without waiving or breaching client privilege, to state his understanding as to the reason for the applicant having terminated his instructions. Mr Stratton responded by stating that the applicant believed:

“that his current legal team, perhaps recent legal team, are not properly prepared to run his trial”.

16. Mr Stratton said that he had also been instructed by the applicant to make another application which he, Mr Stratton, was not prepared to make and indicated that it was a matter for the applicant to raise with the Court if he saw fit.

17. Mr Stratton also indicated that his position was that the defence was ready to proceed with the trial subject to two matters which he subsequently raised with the Court in relation to certain evidence which was referred to in the Crown brief or the service of which had been foreshadowed. It suffices for present purposes to note that the subsequent dialogue between Fagan J and counsel for the Crown resolved those two matters. Mr Stratton indicated that, on that basis, if his instructions were renewed, he would be available to act for the applicant in the event the applicant wished to reinstruct him.

18. After these matters had been clarified, the following exchange took place between the applicant and Fagan J:

“HIS HONOUR:   … Mr Munshizada, what is your position about proceeding with the trial on 3 February? You have discharged your solicitors and counsel.

ACCUSED:       Yep.

HIS HONOUR:    You wish to represent yourself, do you?

ACCUSED:    Your Honour, basically at the moment I didn't even have a brief myself to go through. I got served a hard copy, then I got approved for a laptop. I received this laptop with the wrong brief on it. I had the Yilmaz allegation. I have so far given it back to intel and they are trying to put the Davey allegation. I haven't even gone through my brief myself so I am not in a position to represent myself either.

HIS HONOUR:    Why are you discharging your solicitors and counsel          then?

ACCUSED:    There is a lot of instructions I have given which have not been met. I have asked for legal written advice which I have not received. I have met Stratton two weeks prior to the start date of the trial. I have asked many times to sit down and see his thoughts of the case, which I haven't got yet. Basically I thought they weren't ready and I did not take my instructions back from my legal team, only Mr Stratton, which then I was advised that they come as a deal.

HIS HONOUR:    Then you were advised what, sorry?

ACCUSED:    That they come as a package deal. That if Stratton goes, then the firm goes. I never withdraw my instructions from Archbold.”

19. Subsequent to that exchange, Fagan J explained to the applicant that:

“Termination of Mr Stratton’s instructions is just really seriously against your own interests. Mr Stratton is one of the leading criminal defence barristers in the [S]tate and the country. …

You take it upon yourself to say that you are not satisfied with him. Well, you are leaving yourself unrepresented of your own volition and you will be running the case on your own. It is just not a solution to anything to tell Mr Stratton that you are no longer engaging him. It simply leaves you without representation. The trial won’t be vacated on this account.”

The applicant responded “yep” to these observations by Fagan J.

20. The applicant pointed out to Fagan J that he did not have a copy of the brief of evidence and said the following:

“If I do retain them it still doesn’t give me enough time to prepare because I don’t even have a brief. How am I going to go through 10 volumes if I don’t even access to mine?”

21. To this, Fagan J responded:

“Most of this material has been served a long, long time ago and, in any event, counsel is the person who is best equipped to determine what material he needs you to review and inform him about. The main aspect of preparation for defence of this matter is to have experienced counsel read the papers thoroughly and prepare himself. Usually in a case like this, and I wouldn't think this one is any exception, there is not much prospect for input from the accused about most of what it is that counsel has to read.

It is not an impediment to the trial being ready to go ahead that you haven't read all of the papers. The only impediment is that you have cast off the person who has read the papers and who is ready to run the matter. You need to reconsider the decision. It is simply suicidal but the trial will go on on 3 February.

If you, in the week before, or two weeks before the trial, decide to dispose of counsel who is provided to you and who has prepared the matter, and then throw your hands up and say you are not ready, the trial will not be adjourned on that basis. That is just your own choice to put yourself in a position where you can't adequately defend yourself.”

22. It may be noted that there was at this point no application for an adjournment or vacation of the proceedings before the Court. Fagan J indicated to all parties that he would be prepared to reconvene the Court in the week commencing 27 January 2020 “if need be at any time, at any hour” in order to “ensure that the trial remains on track”. Mr Stratton, again commendably, commented that he would be prepared to attend court on that occasion “in case I am required”. In those circumstances, Fagan J relisted the matter for Tuesday 28 January 2020 at 10.00am (27 January 2020 being a public holiday). As counsel for the Crown, Mr Morris pointed out, “[t]hat would provide Mr Munshizada an opportunity to consider what your Honour has said over the weekend.”

23. Fagan J also sought the assistance of Mr Stratton and his solicitors to take steps to have Mr Munshizada provided with physical copies of the brief.

24. The mention on 24 January 2020 concluded with Fagan J explaining to the applicant that he proposed to relist the matter on the following Tuesday morning and strongly urged him to reconsider what he had done, saying:

“It would be extremely unwise for you to go into this trial without representation. It is a complicated trial; it is listed to take six weeks. There will be procedural issues about the manner in which the evidence of some of the informer witnesses is to be taken. There will be arguments of admissibility. … And the person who is best placed to argue those questions of admissibility and ensure that only the evidence that properly should go before the jury does is Mr Stratton.

It would too late to try to engage other counsel and there is no reason why Legal Aid would provide you with other counsel if you have rejected somebody of Mr Stratton’s stature. So, please, reconsider that decision. It is not at all in your interests. But if you adhere to it, the trial will go ahead in any event on 3 February 2020.”

25. When the matter resumed on 28 January 2020, the applicant, again present by audio visual link, was represented by Mr Lange of counsel who had received instructions to make an application to vacate the commencement date of the trial. Mr Lange indicated, on a contingent basis, that he may be able to represent the applicant from 24 February 2020, with the contingencies being that he be released from his brief in another trial (which he anticipated was likely) and that Legal Aid agree to engage him in place of Mr Stratton to appear for the applicant. Mr Lange asked that the matter be stood over until Friday 31 January 2020 with the hope that the two contingencies I have referred to might be clarified by that point in time.

26. Mr Stratton asked formally to be released and Fagan J acceded to that reasonable request, Mr Stratton not having been reinstructed or indeed having had any contact or communication with the applicant or his family in the period between 24 January and 28 January 2020.

27. Fagan J then said the following to the applicant:

“HIS HONOUR:   Mr Munshizada, I just make this clear. This is a once and for all decision. Mr Stratton has been retained to appear for you in this case for six weeks and you have withdrawn instructions to him as counsel. You won't be able to change your mind about that if you are adhering to that today. This is the decision day. The trial is to commence next Monday and if Mr Stratton is not engaged for it then he must be left free to represent other people who are in need of counsel. So after today, if you are adhering to this decision today, he will simply not be available, you will have all your chances in Mr Lange's hands. If Mr Lange becomes free from the other case and is available and if I agree to adjourn the commencement of your trial for three weeks then he can appear for you, provided Legal Aid will grant the transfer, but you are just gambling on that, so you need to be very very clear that if you are adhering to this decision to discharge Mr Stratton it can't be turned back and if the other arrangements are not put in place then the case will run without you being represented. Do you understand that?

ACCUSED:      Yes, I understand, your Honour.

HIS HONOUR:   And you also have to realise that, despite what Mr Stratton says, there's no guarantee that Legal Aid will agree to provide you with other counsel. You have perfectly competent counsel of, as I mentioned last week when this matter was mentioned, high repute. If you choose to reject that counsel it's a matter for Legal Aid whether they decide at public expense to provide you with someone else who you are happy with, but they are not obliged to and the Court in this situation is not obliged to defer your trial for your lack of representation if that is the situation you find yourself in. Your rejection of Mr Stratton at this stage is your own choice to dismiss capable counsel and to take the risk of running this case on your own. If you find yourself in that situation on Monday that will be your responsibility and if there is not a clear path to engage other counsel with some short adjournment then you will simply be running the case on your own. Is that what you want to do?

ACCUSED:      Yeah, your Honour, that's what I want to do.

HIS HONOUR:    I beg your pardon?

ACCUSED:      Yes, your Honour, that's what I want to do.

HIS HONOUR:   All right. Well, I can't make it any clearer than that. If this doesn't come off, Mr Lange, if you are in communication with Mr Munshizada outside court or if Mr Stratton or either of the solicitors is, if you have the opportunity to go through this with him please make sure he does really fully understand that. I can't say it any more clearly and he said he accepts it, but this is the day. This case is not going to go off for any more than a short period for some replacement counsel to be interposed if that can be done.

MR LANGE:   As your Honour said, your Honour has made it very clear. We will make it clear again as well. That's all I can do.”

28. The proceedings were stood over to 10.00am on Friday 31 January 2020. After some preliminary submissions, the matter was adjourned around midday and, on the resumption, Mr Lange read an affidavit which had been prepared by his instructing solicitor, Mr Chahine, evidently after taking some instructions from the applicant during the adjournment. The affidavit again made it plain that Mr Lange’s availability to appear in the trial was contingent upon it commencing on 24 February 2020, Legal Aid providing a new grant allowing for preparation and agreeing “to fund such expert reports as are required”. In other words, as at 31 January 2020, the availability of Mr Lange to appear for the applicant was contingent and conditional upon any trial being adjourned for three weeks, an adjournment which I note, given the six-week estimate, would have caused the trial to run into the commencement date for the subsequent Barbaro and Yilmaz trials which were slated to commence on 30 March 2020.

28. In the course of submissions on 31 January 2020, Fagan J asked Mr Lange what the precise application at that point in time was and, in particular, whether it was that the trial be adjourned for three weeks. Mr Lange responded, “No, that it be vacated at present.” It appears from the context that, by that statement, Mr Lange indicated that the application had now become that the trial be wholly vacated so as to give the Court certainty, it being noted that Mr Lange’s own ability to participate in the trial remained contingent as at 31 January 2020 because Legal Aid had not yet indicated whether or not it would support a grant which would see Mr Lange and a brand new firm of solicitors retained to act for the applicant. It was also contingent because there was evidently a potential conflict that Mr Lange was yet to explore.

29. Paragraph 5 of Mr Chahine’s affidavit was in the following terms:

“On Friday, 31 January 2020, I had a discussion with Mr Munshizada via telephone, and he expressed the following reasons as to why the trial was, in his mind, not ready to commence on 3 February 2020:

1.   On 22 March 2016, the wife of the deceased met with a person of Islander appearance. The Crown case is that that person is Jared Prakash, an alleged associate of the group. The accused informs me and I verily believe that he made a request of his previous legal representatives that the tracking device data for Jared Prakash's vehicle be requested/subpoenaed, but that this was not done.

2.   Convoy of vehicles on the day of the murder − the Crown case is that 3 vehicles travelled to St Mary's in convoy. Police assert the vehicles have been detected on cameras on the M4. The Accused instructs me that he is yet to see the footage and that he has only been provided with still images. I am further instructed that a fourth vehicle was seen in the images but was not identified by Police. I am informed and verily believe that the accused instructed his previous legal team to obtain footage of the M4 in the opposite direction to see the fourth vehicle, but that this was not done.

3.   I am further informed and verily believe that the Accused instructed his previous legal team to obtain all blackberry messages from RS...670 at the time of Mangrove Mountain but that these were not obtained.

4.   The accused further stated to me words to the effect of, "On 22 March and 29 March, two very important dates, I was playing indoor soccer. I asked my legal team to obtain evidence and information that I was playing indoor soccer on these two dates. CCTV from Australia Avenue show me leaving in soccer clothes." I am informed and verily believe that this was not done.

5.   27-28 March the police provided two different transcripts in the Brief. I am informed and verily believe that the Accused instructed his legal team to obtain a relevant expert but that this was not done.

6.   I am instructed that, in relation to 30 March, police provided a transcript of a conversation that took place in Australia Avenue. I am informed and verily believe that the Accused instructed his previous legal team to obtain the CCTV footage from within the unit at the time of the conversation as he was not privy to that conversation, but that that was not done.

7.   I am further informed and verily believe that the Accused instructed his previous legal team to obtain an expert opinion in relation to the alleged admission on 12 November 2016 but that this was not done.

8.   I am further instructed that the accused instructed his previous legal team to obtain the listening device material from the day before, that day and the very next day in order to place the transcript provided by Police in its proper context. I am informed and verily believe that this was not done.

9.   The Crown asserts that the relevant gun was located at Ada Street, Concord. I am informed and verily believe that the Accused requested his previous legal team to obtain all surveillance and DNA records in relation to that property.”

31. The Affidavit did not descend to any further detail, including as to when the requests were made or as to whether or not the applicant’s legal team had given reasons as to why what was apparently requested had not been done. No evidence was given or submission made that the failure to undertake or implement any of these requests was incompetent or unreasonable, assuming that the requests were made and clearly conveyed.

The primary judgment

32. After recounting the background of the matter including the procedural chronology, Fagan J set out the principles applicable to an application to vacate the trial. No issue was taken on appeal as to the correctness of his Honour’s identification of relevant principles, and it is convenient, particularly in view of the urgent circumstances of this appeal, to reproduce his Honour’s statement of principles. These are set out below (with emphasis as in his Honour’s judgment):

“[37]   The accused’s application to vacate the trial on the basis that he does not have legal representation is to be decided in the exercise of the Court’s discretion, applying principles stated by a majority of the High Court in Dietrich v The Queen (1992) 177 CLR 292 and by the whole Court in Craig v South Australia (1995) 184 CLR 163. In Dietrich v The Queen Mason CJ and McHugh J stated the position in these terms (at 311-312):

‘[…] Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused.

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.’

(Citations have been omitted from the above quotation and from those which follow).

[38]   Their Honours reiterated the position at 315 as follows (with emphasis added):

‘In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be 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. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.’

[39]   Deane J made the following statements in Dietrich v The Queen:

‘In determining the practical content of the requirement that a criminal trial be fair, regard must be had "to the interests of the Crown acting on behalf of the community as well as to the interests of … the accused" [Barton v the Queen (1980) 147 CLR 75 at 101 (Gibbs ACJ and Mason J)]. There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented. The most obvious category of case in which that is so is where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available [Greer v R (1992) 62 A Crim R 442 per Kirby P] (at 335).

It follows from the foregoing that, as a general proposition and in the absence of exceptional circumstances, a trial of an indigent person accused of serious crime will be unfair if, by reason of lack of means and the unavailability of other assistance, he is denied legal representation (at 337).’

[40]   The following passage from the judgment of Toohey J in the same case at 337 is also of present relevance (emphasis added):

‘It is not possible to say that the trial judge must adjourn the trial for there are other considerations to be taken into account. Counsel for the applicant is not right in suggesting that only the interests of the accused are relevant. The situation of witnesses, particularly the victim, may need to be considered as well as the consequences of an adjournment for the presentation of the prosecution case and for the court's programme generally. But ordinarily the requirement of a fair trial will be the prevailing consideration. Therefore, in the absence of compelling circumstances, a trial should be adjourned where an indigent accused charged with a serious offence lacks legal representation, not due to any conduct on the accused's part.’

[41]   In Craig v South Australia the Court reiterated the statement of principle from the judgment of Mason CJ and McHugh J in Dietrich v The Queen quoted at [38] above in the following passage at 183:

‘The decision of this Court in Dietrich v The Queen established that, in a criminal case where an unrepresented accused is facing trial for serious offences, a trial judge has power to make an order staying the proceedings if, in the circumstances of the case, it appears that the accused would otherwise not receive a fair trial. In the course of their joint judgment, Mason CJ and McHugh J made the following comments as reflecting their approach and that of the other majority Justices:

“... we identify what the majority considers to be 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.”

The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused's inability to obtain legal representation being "through no fault on his or her part" was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that:

“... what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune”.

A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused.’

[42]   The Court in Craig v South Australia said the following at 186:

‘[The first instance decision on an application for a stay of criminal proceedings by an unrepresented accused] encompassed the identification and determination of relevant questions of law and fact involved in deciding whether a trial in which the appellant was left without legal representation would be unfair and whether a stay should or should not be granted. Those questions included the question whether the appellant's inability to obtain legal representation should be seen as being ‘through no fault on his ... part’. Like almost any question which arises for determination by a judge, that question of ‘fault’ can, once the facts are ascertained, be dressed in the garb of a question of law. Essentially, however, it is a question of fact involving an element of discretionary judgment.’”

33. Kirby P’s observations in Greer v R (1992) 62 A Crim R 442 which had been cited by Deane J in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 were also referred to by Carruthers AJ in R v BK [2000] NSWCCA 4; 110 A Crim R 298 at [31]−[35], which was in turn citied by Fagan J. In [33] of those reasons, Carruthers AJ said as follows:

“In the light of these authorities, it seems to me that, ever vigilant as a trial judge must be to ensure that, so far as it is possible an accused person has a fair trial according to law, nevertheless, the trial process must not be allowed to degenerate, by reason of manipulation by the accused, to the position where it is at his or her mercy. This would be so inimical to the public interest and the general administration of justice that it would necessarily lead to an undermining of public confidence in the criminal justice system.”

34. At [61] of his reasons, Fagan J, whilst stating that he did not consider it necessary to determine whether the applicant’s actions in his application were manipulative in the sense of having an ulterior purpose of simply putting off the trial for its own sake, otherwise adopted Carruthers AJ’s observations at [33] of BK, saying that:

“The Court must guard against undermining of the orderly listing of trials by such unreasonable conduct of accused persons as would have the effect of creating disruption and procrastination, whether intended or not.”

35. Fagan J considered the nine matters referred to in paragraph 5 of Mr Chahine’s affidavit (see [30] above). His Honour considered that some of these matters were misconceived or self-evidently immaterial whilst others he regarded, correctly in my view, as matters upon which defence counsel would (and it is to be inferred had) exercised his own judgment as to whether or not further enquiries before the trial would be fruitful or better raised during the running of the case without prior notice to the Crown. Judgments as to the forensic utility of such matters are quintessentially within the province and responsibility of counsel retained to represent a party. Fagan J held (at [57]) that “[f]or the accused to have dismissed his counsel on the basis that these detailed instructions were not carried out was unreasonable. He has withdrawn instructions because counsel exercised an independent judgment about the conduct.”

36. At [59], Fagan J articulated what was, in effect, the corollary of the decision made by the applicant to terminate the services of Mr Stratton in a case such as the present:

“The accused’s position on the present application amounts to this: that he may form his own ideas about the conduct of his defence, instruct his solicitors and counsel to make enquiries and to prepare accordingly, and then terminate their services when they do not carry out his instructions. Further, that he may on this basis withdraw his instructions at a time when it is too late for replacements to be retained and then have his trial date, fixed six months in advance, vacated on the ground that he is unrepresented. If all of this were to be accepted it would be impossible for the Court to maintain order in its administration of the criminal law. The accused’s submissions, if acceded to, would subordinate the Court’s orders for the listing of trials to the notions of accused persons about how their cases might be run and to their choice of whether to dismiss their counsel upon grounds of disagreement and, if so, when. The Court’s discharge of its duties would be subject to the hazards of accused persons’ frequent disagreements with their publicly funded legal representatives.”

37. It is also relevant to note a number of further considerations referred to by the primary judge as relevant to the exercise of his discretion. These were stated at [62]-[67] of his Honour’s reasons as follows:

“Taking into account the accused’s fault in leaving himself unrepresented by having unreasonably withdrawn instructions from competent solicitors and counsel, the Court must weigh other significant factors that bear upon the discretion to vacate the trial fixture in order to allow time for alternative representation to be secured. This cannot be treated as a mere adjournment for three weeks until Mr Lange is available on 24 February 2020 because, on the accused’s performance to date, there can be no assurance of him maintaining instructions to Mr Lange. The question of vacating the date must be approached upon the basis that there is significant likelihood the trial may not be able to commence at any time within the six weeks that have been allocated for it. Generally, it is a consideration against vacating the present trial date that the accused may never be prepared to accept representation by counsel who exercises the usual independent judgment about conduct of the case and that there is therefore a high chance that deferring the trial will achieve nothing.

I take into account that the members of the community most immediately affected by Mr Davey’s death have a strong and legitimate interest in seeing the charge against the accused determined by a jury as soon as possible. The deceased is survived by his father, brother and a female de facto partner, with whom he was residing at the time of his death and who was in their home near to the scene of the shooting when it occurred. It is nearly 4 years since Mr Davey died and more than 18 months since the accused was charged.

I have regard to the strong interest of the general public in having serious criminal charges of this nature brought to trial efficiently, in accordance with the Court’s orders as to the date of trial and under the control of the Court. In R v Alexandroaia (1995) 81 A Crim R 286 Hunt CJ at CL, Grove and Dunford JJ dismissed an appeal from a trial judge’s refusal of an adjournment to permit the accused to make further enquiries relevant to his defence. Their Honours said:

‘It is correctly conceded by the appellant that the judge was entitled to take into account (as he did) the strong public interest that, once fixed for hearing upon the basis that the parties were ready to proceed, a criminal trial should proceed with expedition without being deflected by collateral inquiries such as the three to which reference has been made.’

If this trial should be vacated, six weeks of the time of the allocated trial judge will be lost to the criminal list. It would be impossible to bring forward other trials, given the short notice and the need to co-ordinate with Crown and defence counsel and with witnesses. The avoidance of such disruption to the Court and loss of judge sitting time is extremely important. There is a general public interest in efficient and economic use of Court resources. Losing this six week fixture would necessitate relisting the trial later, thereby pushing out the dates that may be given for the trials of other accused persons who are remanded in custody. A trial judge can be reallocated to civil work but the disruption and delay in the criminal list, with a bearing upon accused persons remanded in custody, would be irrecoverable.

The Court must take into account the impact of a long adjournment upon the 40 or so witnesses whom the Crown proposes to call in this trial. They include witnesses for whom the trial and its delay involve personal stress, such as the deceased’s female partner and, in a different category, former associates of the accused and of Sultani. Some of the former associates who are co-operating with police and with the Crown are under protection. The legitimate interests of such witnesses in having this trial concluded is a significant consideration. Other witnesses in the Crown case are police officers including detectives, uniformed officers and forensic personnel. While giving evidence is a professional matter for them, significant logistics, costs and commitment of police resources are involved in achieving the availability of these witnesses for a six week trial. Vacating the trial and rescheduling it would have an impact on the efficient use of serving police officers.

The Court takes into account the loss of efficiency that will be experienced in the conduct of the trial as a result of the accused being unrepresented. This will protract the trial and will require significant intervention from the bench to ensure fairness, which would not be necessary if the accused was represented. However, a fair trial can be achieved with the application of sufficient care on the part of the Court.”

Disposition

38. The nature of the task confronting Fagan J was described by Barwick CJ in McInnis v The Queen (1979) 143 CLR 575 at 579; [1979] HCA 65, in a passage cited to Fagan J by Mr Lange on behalf of the applicant, as requiring the “need for the most careful weighing of the interests of the accused, of Crown, witnesses, jurors and, generally, of the administration of justice, when an adjournment is sought in order to obtain or to endeavour to obtain the services of counsel for the conduct of the defence”.

39. Consistently with this observation, in Greer, Kirby P observed (at 449) that:

“In criminal proceedings there is an interest at stake in addition to that of the accused. It is the interest of the community in the prompt disposal of charges of criminal offences – particularly where the accused person is in custody and especially where the offence is a serious one, as generally it then will be: see Cox [1960] VR 665 at 667 (FC); McDermott (1990) 49 A Crim R 105 at 108 (Full Fed Ct). It undermines the orderly disposal of the work of the courts when trials, particularly criminal trials, are adjourned unnecessarily: see Murphy (1989) 167 CLR 94 at 99; cf Rogerson (1990) 45 A Crim R 253 at 256 (CCA); Glennon (1992) 173 CLR 592 at 615; 60 A Crim R 18 at 34-35.”

40. In the same case, Kirby P also articulated the appropriate approach to be taken by an appellate court to the review of a refusal to grant an adjournment in a criminal trial because of lack of representation. His Honour relevantly observed at 449:

“The principles governing the review of the refusal of a trial judge to accede to an adjournment application are not special. They represent nothing more than a species of the general rule of restraint which appellate courts observe when asked to disturb the myriad of decisions of practice and procedure which must be made every day in every courtroom of this country: see Maxwell v Keun [1928] 1 KB 645 at 653 (CA) approved Bloch v Bloch and Bloch (1981) 55 ALJR 701 at 704.

… If this Court were to interfere in this case upon the flimsy and completely unpersuasive grounds advanced by the appellant to Judge Hosking and to this Court, it would not only offend the principles which restrain disturbance of such conclusions. It would put at nought the resolve of the judges to weigh such applications against the community interest and the interest of the accused as well in the prompt disposal of criminal trials. It would do so in a case where absolutely nothing had been shown to demonstrate an injustice to the accused person which arose otherwise than by the course which he himself elected to follow.”

41. Counsel for the applicant accepted that Fagan J’s decision entailed the exercise of a discretion and the weighing of a number of considerations. That acceptance also had necessary implications for the making of any challenge to that decision. The principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 are plainly applicable. In other words, for the exercise of discretion to be successfully challenged, it is necessary for the applicant to demonstrate some error of principle or fact or that the exercise of the discretion was outside the bounds of what could fairly be considered reasonable. It would not be sufficient to justify appellate interference that this Court would have exercised the discretion differently to the manner in which it was exercised by Fagan J (which, for my part at least, is not the case in any event).

42. In my opinion, not only was there no error of principle demonstrated in the disposition of the application to vacate the trial but the decision was entirely reasonable in the circumstances. Dietrich was a very different case. Not only did the applicant in the present case have legal representation of an experienced and competent senior counsel but that counsel and his firm of instructing solicitors had been briefed for a significant period of time and indicated to the Court, subject to the two matters that were raised and clarified before Fagan J (see [17] above), that they were in a position to conduct the defence of the trial on the date for which it had been long fixed for hearing.

43. The present case fell squarely within the observations of Deane J in Dietrich at 335-336 which were cited by Fagan J, namely that:

“There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented. The most obvious category of case in which that is so is where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available”. (footnote omitted)

44. Further, the material placed before the Court in support of the adjournment application was weak and, in many respects, either misconceived or vague. Nor was it submitted, still less shown, that the failure on the part of the applicant’s legal team to explore those matters was incompetent or warranted the termination of their retainer.

45. If instructions to make further investigations of the kind referred to by Mr Chahine had in fact been passed on to Mr Stratton at some earlier point in time, his indication to the trial judge as recently as 20 December 2019 that the matter was ready to proceed to trial indicates that a forensic assessment had been made by him and his instructors as to the value and utility of making the further investigations apparently desired by the applicant. These matters of forensic judgment were squarely within the bounds of senior counsel’s responsibility. Fagan J had no basis for concluding that they had not been considered and dealt with competently by counsel, and it is conspicuous that no criticism was made in written submissions on appeal of the manner in which Fagan J analysed and assessed the significance of the matters that were referred to in paragraph 5 of Mr Chahine’s affidavit (see [30] above). The analysis of those matters all fed into Fagan J’s evaluative conclusion that the decision to terminate Mr Stratton’s retainer was unreasonable.

46. Turning to the specific grounds of appeal sought to be raised (see [4] above). The first can immediately be put to one side. It is clear beyond measure that the primary judge was acutely conscious of this factor and cognisant of the impact lack of representation would have on the applicant. This can be seen both in his interactions with the applicant on the various mentions in January 2020 which are set out both in his Honour’s judgment and in these reasons, together with his extensive citation of authority and his express reference in [70] to “the objective of having the [applicant] legally represented in order to secure fairness of the trial, in accordance with Dietrich v The Queen”.

47. Whilst it is true that the focus of the reasons was on the reasonableness of the applicant’s conduct in terminating the services of Mr Stratton, it is fanciful to suggest that the primary judge failed to assess the degree to which the fairness of the applicant's trial “might be impinged”. As the Crown submitted, this complaint was really about the weight the primary judge gave to this factor. That was a matter for the experienced judge to assess. His Honour’s observation at [67] that the lack of representation “will require significant intervention from the bench to ensure fairness” also provides an answer to this proposed ground.

48. Moreover, fairness in this context must essentially mean having the opportunity to be represented. This is what Deane J meant when he used the expression “relevantly fair” in the passage I have extracted above. There is no relevant unfairness where a party has the benefit of legal representation funded by Legal Aid. The applicant was not relevantly “indigent”, to borrow the expression employed by Mason CJ and McHugh J, in respect of legal representation. And, as Kirby P put the matter in Greer at 450, “[t]his is therefore not a case of a failure of a fair legal system to provide the accused facing a serious charge with counsel”.

49. The second proposed ground of appeal has as its basis an assertion that “a legitimate expectation” was generated by various comments by Fagan J that the trial might be deferred for a short period to permit other counsel to be retained. It was put that the generation of this legitimate expectation in some way impacted on Fagan J’s assessment of the reasonableness of the applicant’s dismissal of his previous legal representatives.

50. In my opinion, this submission fails at the outset because no relevant legitimate expectation could be said to have been generated by any observations by Fagan J. His Honour was dealing with a fluid situation and, on 28 January 2020, his Honour made it clear that he was “not making any promises by any means that [he would] adjourn the commencement date of the trial”. His Honour also stated that he wouldn’t “contemplate doing so” unless it was confirmed by them that Legal Aid would fund the change of counsel. These statements are inconsistent with any generation of an expectation, legitimate or otherwise, as to what would transpire if the applicant persisted with the termination of Mr Stratton. Indeed, from the outset, the primary judge had made it extremely plain that a decision to terminate Mr Stratton was a matter of the applicant’s own volition with implications and consequences for the trial. On more than one occasion, the applicant indicated that he understood this.

51. Proposed ground three in fact picks up a statement made by Fagan J at [68] in relation to a submission that had been made by the Crown, not the applicant, in relation to the Crown’s application to adjourn the matter for a few days until 4 February 2020. It was in that context that his Honour made the observation that the prospect of the applicant having stable legal representation was not sufficiently realistic. There are two answers to this proposed ground of appeal. The first is that it really does not bear on the applicant’s application which was for a wholesale vacation of the trial date. Secondly, and perhaps more significantly, his Honour’s concern as to the stability of any legal representation of the applicant was aptly justified in light of the termination not only of Mr Stratton for the purposes of the Davey trial but also the termination of Mr Trevallion’s brief in the Barbaro and Yilmaz trials (see [12] above). Moreover, at first instance, Mr Lange had in essence accepted the very proposition by reference to which he sought to attack the decision of Fagan J in this regard.

52. In relation to proposed ground four, namely that Fagan J erred in taking into account other impacts of vacation of the trial upon the administration of justice in the absence of evidence, in particular the impact a long adjournment would have upon the approximately 40 witnesses the Crown proposed to call, again, two points should be made. First, it is not put that the taking into account of the effects of an adjournment on the administration of justice including the impact on witnesses was an irrelevant consideration. That it was and is relevant is plain from the passages both from McInnis and Greer which I have set out earlier in these reasons. Secondly, in my opinion, it was more than open to the extremely experienced primary judge to draw inferences as to the impact on a very large number of witnesses that vacation of a matter that had been set down six months earlier would have. Particularly in the urgent circumstances in which the application for a vacation of the proceedings came on, it was entirely appropriate for the primary judge to proceed on the basis that there would be such an impact.

53. In relation to proposed ground five, namely that his Honour erred in failing to take into account the effect of the applicant’s lack of representation in the present trial upon his subsequent trial, this matter was expressly taken into account in [69] of Fagan J’s reasons. The proposed ground of appeal is expressed in terms of “failure to take into account” a matter. There was no such failure.

54. Proposed ground six is that his Honour erred in finding the applicant acted unreasonably because he dismissed his previous legal representatives for (on the evidence before his Honour) failing to follow his instructions.

55. Counsel is not of course bound to follow his or her client’s instructions blindly but must make a conscientious assessment as to whether a course suggested is appropriate and proper in all of the circumstances. Further, as the Crown submitted:

“The conclusion that the applicant had acted unreasonably was central to his honour’s overall decision to refuse to vacate the trial. That finding was reasonably open to his Honour based upon:

(a)   The subject matter of the complaints about Mr Stratton did not indicate that the concerns were reasonable and in any event the nature and scope of pre-trial enquiries of the nature identified were matters for the judgment of trial counsel as to how the matter would proceed (Judgment [44]);

(b)   There is no assertion of any patent breach of professional responsibilities or that the legal representatives repudiated their role in any fundamental way (Judgment [50]);

(c)   The Court was not in a position to enquire into the merits of Mr Stratton’s decisions as to the handling of the case (Judgment [58]);

(d)   It was not reasonable for the applicant to withdraw his instructions merely on the basis that he may have had some disagreement with his legal representatives as to the handling of the case (Judgment [59]);

(e)   It is noted further that there was no real evidence about the timing of any such requests the applicant may have made to his lawyers.”

56. In my opinion, his Honour was justified in reaching the conclusion that the applicant had relevantly acted unreasonably in terminating the retainer, and this was a relevant and important element in his reaching the discretionary decision to which his judgment gave effect.

Conclusion and orders

57. For the foregoing reasons, the Court refused the application for leave to appeal.

58. BASTEN JA: On Friday, 31 January 2020, the trial judge, Fagan J, rejected an application made on behalf of Mr Munshizada (the applicant) to vacate the dates fixed for his trial on an indictment containing one count, namely that on 30 March 2016, he did murder Michael Davey. [1] The judge delivered extensive reasons for his decision on Monday, 3 February 2020. An urgent application for leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) was heard by this Court on the afternoon of Tuesday, 4 February 2020. At the conclusion of the hearing, the Court refused the application for leave to appeal.

    1. R v Munshizada [2020] NSWSC 30.

59. The procedural background has been fully explained in the judgment of the President: I agree with his reasons for refusing leave to appeal. The following observations are in addition to, rather than by way of qualification of, those reasons. They address two topics, namely (i) the appellate jurisdiction of this Court and (ii) the basis for vacating a trial where the accused is at risk of being unrepresented as a result of withdrawing instructions from his legal representatives.

Appellate jurisdiction

(a)   scope of jurisdiction

60. It was assumed in the present case that the decision of a trial judge as to the appropriate date to commence a criminal trial involved “an interlocutory judgment or order” from which an appeal might be brought, with leave, pursuant to s 5F(3), by an accused person. Nevertheless, the Court must be satisfied that it has jurisdiction to hear the present application. Furthermore, careful attention to the scope of the provision may, in a case where jurisdiction must be accepted, indicate the willingness or otherwise to grant leave in particular circumstances.

61. In R v Powch [2] this Court considered the scope of the jurisdiction conferred by s 5F(3) where an application had been made challenging the refusal of the trial judge to direct that a prosecution witness be recalled for further cross-examination. The Court concluded that such a ruling on a procedural matter “is not in any sense an interlocutory judgment or order.” [3] The Court noted that the history of the enactment of s 5F demonstrated two purposes, namely (i) the removal of an “anomalous” power to seek review in the supervisory jurisdiction of the Court of Appeal with respect to decisions of the District Court in its criminal jurisdiction, and (ii) to prevent what had been described as a “flood” of applications to the Court of Appeal which “had not been limited to stay of proceedings matters, but also involved applications requiring a District Court judge to reconsider his refusal to allow an accused person to withdraw a plea of guilty, to change the listed trial date, and to seek declarations as to the elements of offences charged in the District Court.” [4] While the section was clearly intended to permit review of a permanent stay (which effectively prevented a prosecution, despite the filing of an indictment), it is less clear that the section was intended to apply to a direction as to the listing of a trial date. Nevertheless, the availability of an application for leave to appeal in such a case was assumed without discussion in Alexandroaia v R. [5]

    2. (1988) 14 NSWLR 136 (Yeldham, Carruthers and Wood JJ).

    3.    Powch at 138C (Yeldham J).

    4.    Powch at 139A.

    5. (1995) 81 A Crim R 286.

62. As Sheller JA observed in Lethlean v R,[6] in a passage repeated by Gleeson CJ in Bozatsis & Spanakakis v R,[7] “the authorities have established no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other.” Gleeson CJ continued:

“King CJ, in Legal Practitioners' Complaint Committee v A Practitioner [8] drew a distinction between judgments or orders and what he called ‘incidental rulings’. A judgment or order, he said, is a ‘judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings’. However, rulings also decide questions. It is the character of the question, and the effect of the decision, that makes the difference.

One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it.”

Bozatsis itself involved a ruling on evidence, the result of which was to render the prosecution untenable, with the inevitable consequence, accepted by the parties, that the proceedings should be permanently stayed. An appeal by the Director was permitted in such circumstances.

6. (1995) 83 A Crim R 197.

7. (1997) 97 A Crim R 296 at 303.

8. (1987) 46 SASR 126.

63. In some circumstances, the fixing, or variation, of a trial commencement date will clearly involve a ruling which does not fall within the scope of challenge provided by s 5F. It is arguable that some cases may have a sufficient significance for the conduct of the trial, so as to permit a different characterisation. However, in circumstances where an accused has been given a reasonable opportunity to obtain legal representation, there is no legal right to the adjournment of a trial because representation has not been obtained, or maintained. Further, the request for an adjournment (or vacation of the trial commencement date) will be based upon a degree of prediction or speculation as to whether prejudice may result if the trial proceeds as planned. Arguably, a decision adverse to an accused may be varied if an expectation that the conduct of the trial will not be rendered legally unfair is disappointed. As explained by Brennan J in Jago v District Court of New South Wales: [9]

“A power of temporary adjournment is commonly exercised to prevent injustice, as Jordan CJ observed in Medaris v Lars Halvorsen & Sons Pty Ltd: [10]

‘I have no doubt that the Court has inherent jurisdiction to direct a temporary stay of proceedings whenever this is necessary to prevent injustice.’

Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes…, adverse revelations in a public inquiry…, absence of competent representation…, or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”

These statements were made in demonstrating the limitations on the appropriateness of a permanent stay, as opposed to a temporary adjournment, but nevertheless illustrate the range of circumstances which may arise and be dealt with in a criminal trial without necessarily requiring an interlocutory judgment or order of a type which should be subject to an appeal.

9. (1989) 168 CLR 23 at 47; [1989] HCA 46.

10. (1943) 44 SR (NSW) 71 at 76.

64. A decision by an accused person to withdraw instructions from counsel may occur before a trial or during a trial. In the latter case, the judge may be asked by the accused to discharge the jury and vacate the hearing. If the judge refuses to take that step, the availability of a challenge by way of application for leave to appeal to this Court would provide a further, perhaps unintended, basis for an adjournment and may result in the discharge of the jury, being the outcome the trial judge expressly refused to countenance. Such circumstances are not entirely hypothetical.

65. There is a further difficulty in rendering such decisions appealable. On one view, considered further below, the trial judge will be required to consider whether withdrawal of instructions was justified or not. As the present case demonstrates, that assessment is not one which can be carried out with any degree of confidence. If, as in the present case, the accused does not give evidence as to his reasons for withdrawing instructions and, to the extent that his solicitor (not in this case the solicitor at the time instructions were withdrawn) provides an affidavit on information and belief, such material is effectively unchallengeable factually and difficult to assess legally. By contrast, where, as also occurs from time to time, the accused is convicted and appeals on a ground that counsel failed to follow instructions or failed to conduct the defence competently, the facts may be fully explored because the effect of the appeal is to waive lawyer/client privilege. Not infrequently, trial counsel and solicitors give evidence, and even produce written instructions, which contradict the complaints of the appellant. By contrast, in the present case, submissions as to the justification or otherwise for the applicant withdrawing his instructions had an air of abstraction which was inimical to judicial assessment of facts.

66. If such an issue arises in the future, it may be hoped that both sides of the record give careful attention to the jurisdictional questions. For present purposes, it is sufficient to note the very considerable practical difficulties in even addressing the basis of the present appeal, with the result that where the difficulties identified above eventuate, it will be difficult to grant leave to appeal.

(b)   powers of appeal court

67. Where the applicant had been granted legal aid and had withdrawn his instructions shortly prior to the commencement of the trial, two further questions arose. The first was to identify where the onus of proof lay in demonstrating lack of fault on the part of the applicant. The second concerned the approach which should be adopted by this Court in addressing an appeal under s 5F. It is appropriate to consider the latter question first in order to ensure that any assessment of the judgment of the trial judge does not exceed the proper bounds of this Court’s authority.

68. In BWM v R [11] this Court considered an appeal under s 5F by an accused person who had offered a plea of guilty to manslaughter on the basis of diminished responsibility which the prosecutor had originally accepted. When the psychiatrist who had prepared a report supporting that conclusion changed his mind, the prosecutor had sought and been granted leave to withdraw his acceptance of the plea. Leave to appeal was refused on the basis that the decision was correct. However, in the course of delivering the principal reasons, Hunt CJ at CL stated that the appeal under s 5F “is not by way of rehearing.” Rather the court was “a court of error” and had no power to make any finding which could have been made by the trial judge, but could only quash the decision and order further consideration of the matter. [12] Hunt CJ at CL continued:

“Section 5F does specifically provide that this Court may substitute its own decision for that of the trial judge in relation to interlocutory judgments or orders, and that it may give leave for further evidence to be given. …

What s 5F did not give, however, was the express power to this Court to rehear the matter. This is in marked contrast to the express power to rehear the matter which is given in relation to the appeals provided by ss 5AA-5AD. … In his Second Reading Speech, the Attorney-General made it clear that this Court's role pursuant to s 5F was to review the correctness of the interlocutory decision, a role which is necessarily inconsistent with a rehearing. It would be quite wrong in those circumstances to read any implication into s 5F which conflicts with that intention. In my view, such an implication in any event cannot be read into s 5F in the light of its context.”

11. (1997) 91 A Crim R 260.

12.    BWM at 265.

69. However, neither of the other members of the Court joined in this analysis. Gleeson CJ stated: [13]

“As at present advised, I am not convinced that the key to the understanding of the nature of the appeal is to be found in the application, or rejection, of the description ‘rehearing’. On any view of the matter, the present appeal, if leave were granted, would be an appeal against a decision that was both interlocutory and discretionary. Quite apart from the absence in s 5F … of any reference to a rehearing, those aspects of the appeal have significant consequences as to its character.”

13.    BWM at 261.

70. Hidden J also declined to express a concluded view on the matter, but accepted the force of the view that the principles established in House v The King [14] should constrain the court’s interference with the exercise of a discretion by the trial judge. [15]

    14. (1936) 55 CLR 499 at 504-505.

    15.    BWM at 268.

71. The decision in the present case was not truly a discretionary judgment in the sense of the exercise of the sentencing discretion in House v The King. It is true that the trial judge was required to undertake an evaluation of the evidence and draw inferences (as is usual), but the choice before him was binary, namely to vacate the trial date or to refuse such an order. In circumstances where the trial judge has heard no oral evidence, and where the transcript of argument, so far as relevant, is available to the appeal court, it might be said that this Court is in no different a position from the trial judge in making evaluative judgments. On the other hand, as noted by Gleeson CJ in BWM, the decision in question was undoubtedly interlocutory and was a ruling as to the practice and procedure of the trial court, arising in circumstances where any appeal is likely to disrupt the orderly administration of criminal justice; these are factors suggesting that this Court should decline to entertain an appeal in the absence of demonstration of more than arguable error.

Basis of appeal

(a)   applicable principles

72. The thrust of the submissions on behalf of the applicant was that the absence of legal representation would inevitably entail a degree of “unfairness” in the ensuing trial, which the trial judge could not properly prevent or remedy. That proposition, however, involved a misapprehension of the concept of “unfairness”: a trial will not be inherently “unfair”, in the sense that it is not a trial according to law, merely because the accused is unrepresented, if the lack of representation is not due to lack of financial resources (including Legal Aid), or the ability to obtain counsel, but follows from the choice of the accused to withdraw instructions from his legal representatives. Submissions for the applicant in this Court expressly eschewed the proposition that funding was in issue: it was not. Nor was it in issue that counsel had been obtained and was prepared and ready to proceed with the trial; both before and following the withdrawal of instructions, counsel briefed in the matter stated that he was prepared and ready to run the trial. Nor was it in issue that the reason why the applicant was now unrepresented (except for the purposes of the appeal) was that he had withdrawn instructions from counsel and his solicitors. The case proceeded, both before the trial judge and in this Court, as turning on whether the applicant was justified in withdrawing instructions. The test of justification was expressed in terms of whether it was “reasonable” for the applicant to withdraw his instructions, the applicant accepting (at least implicitly) that he bore the burden of justifying his conduct when the objective facts provided no basis for such a conclusion.

73. The trial judge adopted, as the underlying principle, a statement in the reasons of Mason CJ and McHugh J in Dietrich v The Queen,[16] identifying “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.” The approach of the majority was that:

“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. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.”

16. (1992) 177 CLR 292 at 315; [1992] HCA 57.

74. Dietrich involved an appeal against a conviction following a trial of an unrepresented accused who had sought an adjournment to obtain representation, but where the judge had given no consideration to “exercising his discretion to adjourn the matter on the ground that there was a real likelihood that the applicant would not receive a fair trial.” Further, there has been later exegesis with respect to the qualification as to an accused who “through no fault on his or her part” is unable to obtain legal representation. The standard of the reasonableness of the conduct of the accused was identified in Craig v South Australia,[17] where the Court stated:

“The reference [in the passage in Dietrich cited above] to an accused's inability to obtain legal representation being ‘through no fault on his or her part’ was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court [of the Supreme Court of South Australia] that:

‘… what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.’

A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused.”

17. (1995) 184 CLR 163 at 184; [1995] HCA 58.

75. Craig was a case in which the trial judge had adjourned the proceedings on the basis that the accused was indigent, was facing prosecution for a serious offence, and had been refused legal aid “through no fault of his own”. The prosecution had sought prerogative relief to quash the decision of the trial judge, which was granted by the Full Court. The High Court reversed that decision, reinstating the order of the trial judge, on the basis that neither jurisdictional error, nor error of law on the face of the record of the trial court had been established. In that, case the “objective facts”, accepted by the trial judge, provided a basis for the stay.

(b)   application of principles

76. Addressing the merits of the application, three factors are, in my view, determinative. First, the principle in Dietrich (and as explained in Craig) is that a person accused of serious crime should ordinarily be granted an opportunity to obtain legal representation for his or her defence. That opportunity may require, in the case of a person lacking means to fund legal representation, the provision or funding of appropriate representation by the State. Secondly, the basis of such representation is that which usually operates with respect to the conventional relationship between counsel and client in defending criminal proceedings. Forensic decisions as to the nature and scope of the defence case will depend upon counsel’s judgment. (The principles are clearly identified in the authorities, including the professional rules governing the conduct of counsel.) Thirdly, where legal aid has been provided to an indigent accused, there will be a substantial burden on the accused to justify any refusal to avail himself or herself of the proffered opportunity of representation. Where the opportunity is foregone without clear justification, the absence of representation alone will rarely be sufficient to warrant a stay of the trial.

77. These principles were applied by the trial judge in the following passages:

“[49]   The legal representation that Dietrich v The Queen requires, in all but exceptional circumstances, in order to have a fair trial of a person charged with a serious crime, is representation governed by the inherent incidents of counsel’s role and authority in the adversary system of criminal justice in this State; that is, representation by counsel who exercises the broad, independent authority over the way the case is conducted as described in R v Birks and TKWJ v R.

[50]   On this application the accused does not assert that his recently dismissed legal representatives committed any patent breach of their professional responsibilities or that they repudiated their role in any fundamental way. For example, it is not suggested that they were affected by a conflict of duties, or that they breached the accused’s confidence and privilege, or that they failed to embark upon reading the material served by the Crown. The accused merely claims that counsel and solicitors failed to follow his instructions regarding pre-trial preparations for the conduct of the case, in matters of detail.”

78. As to the list of nine matters which were said to constitute the unfulfilled instructions of the applicant, even if they had in truth been instructions which were not followed, the judge declined to accept that they provided justification for refusing to be bound by counsel’s decisions. That reasoning was not shown to be erroneous.

79. The judge further noted:

“[58]   … Defence counsel’s judgments are not amenable to such judicial evaluation, either in principle or as a matter of practicality. As to the latter, the Court could not possibly inquire in to the merits of [counsel’s] handling of the case before the Court has heard the evidence and with no possibility of knowing the accused’s instructions or Mr Stratton’s perception of them.

[59]   The accused’s position on the present application amounts to this: that he may form his own ideas about the conduct of his defence, instruct his solicitors and counsel to make inquiries and to prepare accordingly, and then terminate their services when they do not carry out his instructions. Further, that he may on this basis withdraw his instructions when it is too late for replacements to be retained and then have his trial date, fixed six months in advance, vacated on the ground that he is unrepresented. If all of this were to be accepted, it would be impossible for the Court to maintain order in its administration of the criminal law.”

Conclusions

80. Assuming, without deciding, that the decision of the trial judge not to vacate the date for the commencement of the trial was amenable to appeal under s 5F(3), there was no basis for concluding that the trial judge erred in his evaluation of the relevant considerations. Lack of representation lay at the heart of the claim: once the judge was satisfied that the lack of representation was not the result of the lack of a reasonable opportunity to be represented by counsel, the primary ground for vacating the trial date fell away. On that ground alone, the Court was entitled to refuse leave to appeal.

81. In fact, as the trial judge noted and as identified by the President, there were other factors to be taken into account which might well have warranted refusal of the application even had there been concern as to the conduct of counsel in the preparation of the defence case.

82. I therefore joined in the orders of the Court.

83. PAYNE JA: At the conclusion of the hearing on 4 February 2020 the Court made orders refusing leave to appeal. My reasons for joining in those orders are encompassed in the reasons of Bell P and the additional observations of Basten JA with which I agree.

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Endnotes

Amendments

02 June 2025 - Publication restriction uplifted

Decision last updated: 02 June 2025