R v Meissner

[1999] NSWCCA 91

CITATION:	R v MEISSNER [1999] NSWCCA 91
FILE NUMBER(S):	CCA 60606/98
HEARING DATE(S):	15 April 1999
JUDGMENT DATE:	15 April 1999
PARTIES :	REGINA v JOE LADISLAUS MEISSNER
JUDGMENT OF:	Beazley JA at 20; Simpson J at 21; Bell J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Luland DCJ

COUNSEL:	Mr. L. Lamprati (Crown) Mr. G. Stanton (Applicant)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Jack Rigg (Applicant)
CATCHWORDS:	Section 5F Criminal Appeal Act 1912
ACTS CITED:	Criminal Appeal Act 1912
CASES CITED:	R v Matosvki (1989) 15 NSWLR 720
DECISION:	Application for leave to appeal refused

7

IN THE COURT OF
CRIMINAL APPEAL
60606/98

BEAZLEY JA
SIMPSON J
BELL J

Thursday, 15 April 1999

REGINA v Joe LADISLAUS MEISSNER

JUDGMENT

1 BELL J: This is an application brought pursuant to s 5F of the Criminal Appeal Act 1912 for leave to appeal against a refusal by his Honour Judge Luland QC to grant a stay of proceedings against the applicant.
2 The applicant was committed for trial on charges alleging the supply of not less than a commercial quantity of heroin and supply heroin. The applicant was arrested in relation to these matters on 3 October 1992. He was committed for trial on 10 May 1993. Thereafter it appears that the matter was listed both before the District Court and this Court on a number of occasions and various applications were made. At a call-over on 31 October 1997 the matter was fixed for trial to commence on 7 September 1998. It appears that the estimate given in October of 1997 as to the likely length of the case was three to four weeks.
3 The matter was called on for trial on Tuesday 8 September 1998. On that occasion Mr Byrne SC appeared on the applicant's behalf. His instructions were limited to arguing a preliminary issue relating to the admissibility of certain evidence at the trial.
4 In the course of discussion at the commencement of proceedings on 8 September the applicant informed his Honour that he had been refused legal aid and that he wished to make what was described as a Dietrich application. His Honour thereupon embarked upon the hearing of an application for a stay of the proceedings arising out of the applicant's assertion that he was unable to afford to obtain representation for his trial. Mr Byrne assisted the applicant in the presentation of that application on that day. The applicant gave evidence and was examined by Mr Byrne and cross-examined by the Crown Prosecutor.
5 After becoming aware that the applicant asserted that he was impecunious and that he had been refused a grant of legal aid, his Honour asked if enquiries might be directed to the Legal Aid Commission. Mr Gregory Adler, an officer of the Commission, attended court following the luncheon adjournment and informed his Honour that the applicant's application for legal aid had been refused and that by letter dated 1 September 1997, the applicant had been informed that his appeal to the Legal Aid Review Committee had been refused. The Commission was said to have based its determination on a view that the applicant's assets exceeded the estimated cost of the trial. This made him ineligible for aid.
6 The applicant had, by this time, given evidence that he owned a property in Point Piper but that it was the subject of a mortgage in favour of the Bank of Melbourne. The sum owed to that bank exceeded the estimated sale price of the premises. The bank had commenced proceedings seeking an order for possession in the Supreme Court. His Honour raised with Mr Adler whether it was possible for the Commission to enter into some form of a binding agreement with the applicant such that if he were successful in his defence of the Supreme Court proceedings the Commission might call on the proceeds of the sale of the premises. There was some further discussion about the practicality of the proposal but it was resolved by the applicant indicating that it was his intention to reapply for legal aid. In those circumstances his Honour stood over the stay application and embarked on a consideration of the preliminary issue which Mr Byrne had been retained to argue.
7 That voir dire hearing continued on 9 September 1998. At the end of the day's hearing his Honour was advised by Mr Bellingham, the applicant's solicitor, that there had been no decision made by the Legal Aid Commission on the fresh application. His Honour stood the proceedings over to the following day. On that occasion his Honour was informed that legal aid had not been granted. Mr Bellingham told his Honour that the applicant had made enquiries concerning the Bar Association's pro bono legal assistance scheme. A barrister, Mr Mark Campbell, appeared and informed his Honour that he had spoken with the applicant in connection with that scheme. There followed further discussion between his Honour and Mr Campbell. During the course of that discussion, his Honour indicated that, should Mr Campbell be available to appear for the applicant, he would allow a period of four weeks prior to commencing the trial to allow Mr Campbell to prepare the matter. This would have seen the trial commence on 12 October 1998. His Honour then stood the matter down in the list to permit Mr Campbell time to speak both with the applicant and Mr Bellingham.
8 Mr Campbell subsequently informed the Court that he would not be able to appear for the applicant at his trial having regard to the likely length of the matter. His Honour observed that he would have to proceed with the Dietrich application. At this point, Mr Bellingham informed his Honour that the applicant had an appeal pending before the Legal Aid Review Committee. That appeal was to be determined the following Monday. His Honour stood the matter over to Wednesday of the following week, noting that that would give the applicant an opportunity to prepare his Dietrich application.
9 On Wednesday 16 September 1998 his Honour was informed that the Legal Aid Review Committee had not disposed of the matter. His Honour stood the Dietrich application over to Thursday 24 September, by which date it was expected that the Legal Aid Review Committee would have determined the matter.
10 On 24 September 1998 Mr Simpson appeared on behalf of the applicant. He advised the Court that the applicant's application had been rejected by the Legal Aid Review Committee on what was described as a "means and ability to pay for legal costs" basis. Mr Simpson indicated that he would be seeking to reopen the applicant's case so that he could place some documentary evidence before the court. His Honour agreed to this course.
11 The applicant was recalled and further examined by Mr Simpson. He was thereafter further cross-examined by the Crown Prosecutor. During the course of his examination in chief a number of documents were tendered. No further evidence was placed before his Honour on the application. His Honour heard submissions from Mr Simpson and the Crown Prosecutor and stood the matter over for decision to Friday 25 September 1998. On that date his Honour rejected the applicant's application for a stay and ordered the trial to commence on 12 October 1998. It is against that ruling that the present application is brought.
12 The applicant requires leave to bring his appeal pursuant to 5F(3)(a) of the Criminal Appeal Act 1912. In accordance with this Court's decision in Matovski (1989) 15 NSWLR 720 (at 722) we heard argument firstly directed to the leave issue without hearing full argument as to whether his Honour's ruling was correct. The applicant was represented on the hearing of this application by Mr Stanton of counsel. In written submissions, Mr Stanton had identified what he described as a solitary ground of appeal, namely, that his Honour erred in determining that the applicant was not an indigent accused. This ground was not pressed in oral argument and, indeed, it has not been suggested that such a finding was not possibly open to his Honour on the material before him.
13 It is contended, on the applicant's behalf, that the exercise of his Honour's discretion miscarried for reasons to do with the way in which the matter proceeded before him. It is submitted that no formal application for a stay was made by the applicant and that in some sense he had been forced on. This is said to have resulted in the applicant giving evidence on the first occasion without the benefit of documentary material to support him. Further, it is put that Mr Byrne was not briefed in respect of the Dietrich application, nor as at the date the applicant first gave evidence, on 8 September 1998, had he retained any legal practitioner to prepare and present the application on his behalf.
14 It is difficult to see the force of these submissions. The fact is that the applicant's trial was listed to commence on 8 September 1998. On that date the transcript records that the applicant informed his Honour that his application for legal aid had been unsuccessful and that he wished to make a Dietrich application. But even if there were any embarrassment to the applicant occasioned by the Dietrich application being brought on earlier than he had expected and prior to the hearing of the voir dire on the preliminary issues, it can hardly be contended that such embarrassment persisted over the interval of more than two weeks during which the matter was stood over to await the outcome of the Legal Aid Review Committee's determination.
15 The applicant had ample opportunity to collect material and place it before the court prior to the determination of the application on 15 September 1998 and, indeed, he took that opportunity.
16 Although he was represented by counsel on 24 September when the matter resumed before his Honour, no application for an adjournment to enable further material to be placed before the court was made.
17 No error of principle has been identified in the reasons which his Honour gave for his determination. His Honour was not satisfied that the applicant had insufficient funds to arrange representation at his trial. On the material before his Honour, it is not suggested that it was not open to him to come to this view. No basis for the grant of leave has been made out.
18 It is now some months since his Honour's determination. As noted earlier, in evidence before his Honour, the applicant deposed to an interest in property at Point Piper which was the subject of Supreme Court proceedings. It may be that those proceedings have now been resolved. It is open to the applicant to make a further application for a stay in accordance with Pt 53 r 10 of the District Court Rules by notice of motion supported by an affidavit. In the circumstances of this case, in the event that there is some fresh material, his Honour's earlier determination should not be a bar to a further application being entertained.
19 I propose that the application for leave to appeal be refused.
20 BEAZLEY JA: I agree.
21 SIMPSON J: I also agree.
22 BEAZLEY J: The order of the Court is that the application for leave to appeal be refused.

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