R v O'Connor - [2000] NSWCCA 124

CITATION: R v O'Connor [2000] NSWCCA 124

FILE NUMBER(S): CCA 60482/99

HEARING DATE(S): 10 April 2000

JUDGMENT DATE:
14 April 2000

PARTIES :

REGINA (Appellant)
Todd Anthony O'CONNOR (Respondent)

JUDGMENT OF: Priestley JA at 1; Simpson J at 2; at 19

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/11/0709

LOWER COURT JUDICIAL
OFFICER : Goldring DCJ

COUNSEL : L M B Lamprati - Crown Appellant
A Radojev - Respondent

SOLICITORS: S E O'Connor - Crown Appellant
Jack Rigg - Respondent

LEGISLATION CITED: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Suitors Fund Act 1951

CASES CITED:
Walton v Gardiner (1993) 177 CLR 379
Dietrich v R (1992) 177 CLR 292
House v R (1936) 66 CLR 499

DECISION: Appeal allowed - orders see paragraph 18

IN THE COURT OF
CRIMINAL APPEAL

60482/99

PRIESTLEY JA
SIMPSON J
FOSTER AJ

Friday 14 April 2000

REGINA v Todd A O’CONNOR

Judgment
1    PRIESTLEY JA: I agree with Simpson J.

****

SIMPSON J :

2 Pursuant to s 5F of the Criminal Appeal Act 1912 the Director of Public Prosecutions appeals against the decision of Goldring DCJ granting the respondent a permanent stay of criminal proceedings against him.
3    The respondent is charged with offences under the Drug Misuse and Trafficking Act 1985. A trial of the charges commenced before Stewart ADCJ in May 1997. The respondent was privately represented. Four weeks were set aside for the trial. After about two weeks and in circumstances that do not reflect in any way upon the conduct of the respondent or his legal representatives, the trial aborted. The reason was that the Crown produced, during the course of the trial, material upon which it wished to rely and which the respondent and his legal advisers did not have adequate opportunity to consider and meet. Discharging the jury, Stewart ADCJ granted the respondent a certificate under the Suitors’ Fund Act 1951. No money has been paid to the respondent pursuant to this certificate. There was evidence, uncontradicted, that no money will be paid until the completion of all the proceedings against the respondent. Any payment is subject to a ceiling of $10,000.
4    The respondent was initially charged with a number of others. All except he and one other, Nawaf Refai, eventually entered pleas of guilty. In the ordinary course a joint trial of these two accused would have taken place. Because Refai was without legal representation an order was made that the proceedings against him be adjourned and the Crown proceeded against the respondent alone.
5    It is now the Crown’s intention to arraign the respondent and Refai for a joint trial. The respondent deposed that he had been informed by the Crown and by his solicitor that a joint trial could be expected to occupy twelve to fourteen weeks. This is not accepted by the solicitor representing the Crown, whose estimate was of six weeks.
6    It may be anticipated that the trial will not be without complexity. For…

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 O'Connor

Details

AGLC: R v O'Connor [2000] NSWCCA 124
Case: [2000] NSWCCA 124
Decision Date: 14 April 2000

CaseChat Overview and Summary

In the Court of Criminal Appeal, the Crown, represented by the Director of Public Prosecutions, appealed against a decision of Goldring DCJ which granted a permanent stay of criminal proceedings against Todd Anthony O'Connor, the respondent. The respondent had been charged with offences under the Drug Misuse and Trafficking Act 1985. The trial had commenced before Stewart ADCJ but was aborted after two weeks due to the Crown's production of material which the respondent and his legal advisers had not had adequate opportunity to consider and meet. A certificate under the Suitors' Fund Act 1951 was granted to the respondent, but no payment was made and none was expected until the completion of all proceedings against him.

The court was required to decide whether Goldring DCJ was correct in granting a permanent stay of proceedings. The respondent argued that the prosecution amounted to an abuse of process or that the trial would be inherently unfair if he were required to proceed unrepresented, relying on the principles stated in Walton v Gardiner (1993) 177 CLR 379 and Dietrich v R (1992) 177 CLR 292, respectively. The Crown argued that the respondent's evidence as to his financial position was insufficient to permit a proper conclusion that he was unable to fund the cost of his own representation and therefore indigent. The Crown also argued that a permanent stay was inappropriate and that, at best, the respondent was entitled to an interim stay.

The court held that Goldring DCJ's conclusion that the respondent was indigent was not erroneous. However, the court found that the grant of a permanent stay was outside the legitimate exercise of discretion, as the respondent's contention that the Crown case was doomed to failure had been rejected. The court allowed the appeal and substituted the following orders: the appeal should be allowed; the order made by Goldring DCJ on 26 July 1999 should be quashed; the trial should be stayed until legal representation is available to the respondent for the trial of that charge or until further order of the District Court; and the matter should be remitted to the District Court for mention in order that directions be given as to the progress of this matter, including the filing of evidence by the respondent giving details of his financial position and his ability to secure legal representation.

Orders