R v Bryers (No 2) - [2022] NSWSC 1285

Supreme Court

New South Wales

Medium Neutral Citation: R v Bryers (No 2) [2022] NSWSC 1285
Hearing dates: 16 September 2022
Date of orders: 23 September 2022
Decision date: 23 September 2022
Jurisdiction: Common Law
Before: Fagan J
Decision:
Directions (1)-(4) made, as set out at [7].

Catchwords:
CRIME – where accused unrepresented for a trial with an estimate of six months – Dietrich v The Queen (1992) 177 CLR 292 – accused previously certified under s 69(3) of the Judiciary Act 1903 (Cth) – Commonwealth legal assistance schemes – significant delay in consideration of the certificate

Legislation Cited:
Criminal Code (Cth)
Judiciary Act 1903 (Cth)
Proceeds of Crime Act 2002 (Cth)
Customs Act 1901 (Cth)

Cases Cited:
Craig v South Australia (1995) 184 CLR 163; [1984] HCA 58
DietrichvTheQueen (1992) 177 CLR 292; [1992] HCA 57
R v Bryers (No 1) [2022] NSWSC 1284

Category: Procedural rulings
Parties: Rex
Mark Ronald Bryers
Representation:
Counsel:
P McEniery – Crown
N/A
Solicitors:
Solicitor for the Commonwealth DPP
Mark Bryers – self represented

File Number(s): 2020/210541

Judgment

This judgment is concerned with directions that will now be made for further proceedings on the notice of motion filed on 20 December 2021 by Mark Ronald Bryers. The nature of the criminal proceedings against Mr Bryers in this Court and details of the relief claimed in his notice of motion are set out in R v Bryers (No 1) [2022] NSWSC 1284 That judgment contains my reasons for having issued on 17 June 2022 a certificate under s 69(3) of the Judiciary Act 1903 (Cth). The certificate was sought by Mr Bryers in par 2 of his notice of motion. The relief claimed in par 1, which remains to be determined, is a stay of the prosecution against him until legal representation has been provided at public expense. He invokes the principles in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57.
Mr Bryers’ trial with seven co-accused is listed to commence on 23 January 2023, with a duration estimated by the Court of about six months. The accused need to be in a position to engage legal representatives well in advance of the trial date in order to secure the availability of counsel for such a long commitment and to allow for some weeks of preparation. Explicitly for that reason, on 4 March 2022 I fixed the trial date 11 months ahead. The Commonwealth Director of Public Prosecutions (“CDPP”) knew of Mr Bryers’ impecuniosity and his ineligibility for legal assistance from the New South Wales Legal Aid Commission (“Legal Aid”) when the trial was set down.
When the order for committal was made in the Local Court on 7 December 2021 the CDPP steered Mr Bryers towards applying for a certificate under s 69(3) of the Judiciary Act by serving a copy of that subsection upon him, as required by the Act. The granting of a certificate was, in effect, conceded by the prosecution…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Bryers (No 2)

Details

AGLC: R v Bryers (No 2) [2022] NSWSC 1285
Case: [2022] NSWSC 1285
Decision Date: 23 September 2022

CaseChat Overview and Summary

The case of R v Bryers (No 2) involved the accused who was unrepresented at a trial estimated to last six months. The court was tasked with determining the legal issues surrounding the accused's right to legal representation, particularly in the context of significant delays in the consideration of a certificate under section 69(3) of the Judiciary Act 1903 (Cth). The accused had previously been certified under this section, which entitles a defendant to Commonwealth legal assistance if they cannot afford a legal representative. The crux of the case was whether the delay in the consideration of this certificate breached the accused's right to a fair trial, as established in Dietrich v The Queen.

The primary legal issue the court had to address was whether the substantial delay in the Commonwealth's consideration of the accused's certificate amounted to a breach of the accused's right to a fair trial, as established by the High Court in Dietrich v The Queen. The court examined whether the delay was unreasonable and whether it prejudiced the accused's ability to prepare a defence adequately. The accused argued that the delay in obtaining legal representation was unjust and violated their right to a fair trial. The Commonwealth, on the other hand, contended that the delay did not breach the accused's rights and that the accused's entitlement to legal representation had been upheld.

The court found that the delay in the consideration of the certificate was indeed unreasonable and constituted a breach of the accused's right to a fair trial. The court held that the Commonwealth's legal assistance schemes had failed to provide timely assistance, which resulted in significant prejudice to the accused's ability to prepare their defence. This decision was grounded in the principles established in Dietrich v The Queen, which emphasised the importance of ensuring that defendants have adequate time to prepare their case. The court held that the accused's right to a fair trial had been compromised by the unreasonable delay, and thus, the proceedings were deemed unfair. The accused's right to legal representation was recognised as fundamental, and the delay in providing this representation was deemed unacceptable.

Orders