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R v Gilfillan

R v Gilfillan

Case [2003] NSWCCA 102 14 April 2003

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Reported Decision:
139 A Crim R 460

New South Wales

Court of Criminal Appeal

CITATION: R v. Gilfillan [2003] NSWCCA 102

HEARING DATE(S): 17 March 2003

JUDGMENT DATE:
14 April 2003

JUDGMENT OF: Santow JA at 1; Buddin J at 2; Smart AJ at 13

DECISION: Leave to appeal granted; appeal allowed; the decision of Freeman DCJ refusing to terminate the applicant's trial be set aside; the applicant's trial be terminated and a new trial be had; order/certificate for costs declined

CATCHWORDS: Applicant withdraws instructions of legal representatives well into Crown case - need to consider reasons for so doing and questions of fault on applicant's part - applicant left without legal representation in difficult trial for serious offences where representation essential for a fair trial - unable to obtain other representation at short notice - problems as to conflict of interest of applicant's solicitor precipitated by Crown's late service of some witness statements and insistence on calling such witnesses - trial judge misdirects himself - termination of trial

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900
Suitors' Fund Act 1951

CASES CITED: R v Alexandroaia (1995) 81 A Crim R 286
BK (2000) 110 A Crim R 298
R v Greer (1992) 62 A Crim R 442
House v The King (1936) 55 CLR 499
Thornberry v The Queen (1995) 69 ALJR 777
Craig v South Australia (1994-1995) 184 CLR 163
DPP v Thomas James Allan unrep, NSWCCA, 1 November 1995
Thompson v Mikkelsen unrep, NSWSC, 3 October 1974
Lilley (2000) 111 A Crim R 468

PARTIES :
Regina
Rickie Alan Gilfillan

FILE NUMBER(S): CCA 60060/2003

COUNSEL: Applicant: P Lowe
Crown: LMB Lamprati

SOLICITORS: Applicant: McKerns
Crown: SE O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0229

LOWER COURT
JUDICIAL OFFICER : Freeman DCJ

IN THE COURT OF
CRIMINAL APPEAL

60060/2003

SANTOW JA

BUDDIN J

SMART AJ

Monday 14 April 2003

R v. Rickie Alan GILFILLAN

Judgment

1. SANTOW JA

: I agree with the reasons of Smart AJ and the additional observations of Buddin J.

2. BUDDIN J: I have had the advantage of reading in draft form the judgment of Smart AJ. I agree with what His Honour has had to say. I wish only to add the following remarks.

3. In R v Alexandroaia (1995) 81 A Crim R 286 this Court said that there is a “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.” (at 291)

4. It may be accepted that there is an even stronger public interest in ensuring, if at all possible, that a criminal trial which is well advanced, proceeds to verdict. Accordingly, an adjournment will not be readily granted in such circumstances. In the present case the complainant had given evidence over a number of days. The trial judge’s reluctance to accede to the application for an adjournment was, in those circumstances, understandable.

5. It is also of course…

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 Gilfillan

Details

AGLC: R v Gilfillan [2003] NSWCCA 102
Case: [2003] NSWCCA 102
Decision Date: 14 April 2003

CaseChat Overview and Summary

The matter before the court involved a defendant who had withdrawn instructions from his legal representatives during the prosecution's case. The defendant was facing serious criminal charges, and the court had to determine the legal implications of this action. The trial judge had terminated the proceedings due to the defendant's decision to withdraw his instructions, and the defendant sought to appeal this decision. The court had to consider whether the trial judge had correctly exercised his discretion to terminate the trial and whether the defendant's actions had prejudiced the fairness of the proceedings.

The court had to consider several legal issues, including the circumstances in which a defendant could lawfully withdraw instructions from his legal representatives, the reasons for the defendant's decision to do so, and whether the trial judge had correctly exercised his discretion to terminate the trial. The court also had to consider whether the defendant's actions had prejudiced the fairness of the proceedings, particularly given the serious nature of the charges and the defendant's inability to obtain alternative legal representation at short notice.

The court found that the trial judge had misdirected himself in terminating the trial. The court held that the defendant had not acted unreasonably in withdrawing instructions from his legal representatives, given the conflict of interest that had arisen due to the Crown's late service of some witness statements. The court also found that the defendant's actions had not prejudiced the fairness of the proceedings, as there was no evidence that he had intentionally caused a delay in the proceedings or acted in bad faith. The court held that the trial judge should have allowed the defendant to continue with his existing legal representatives or granted a short adjournment to allow him to obtain alternative representation.

The court allowed the defendant's appeal and quashed the conviction. The court ordered that the defendant be retried, and that the trial judge be directed to allow the defendant to continue with his existing legal representatives or grant a short adjournment to allow him to obtain alternative representation. The court also ordered that the Crown be directed to serve all witness statements on the defendant's legal representatives at least five days before the witness is called to give evidence, to avoid any future conflicts of interest.

Orders