R v Sigalla

[2016] NSWSC 939

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sigalla [2016] NSWSC 939
Hearing dates:	31 May 2016
Date of orders:	31 May 2016
Decision date:	31 May 2016
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Application by the Accused to vacate and adjourn the proceedings is granted and the proceedings are adjourned until 20 June 2016 at which time a jury will be empanelled. The trial be given an allocation of 4-5 weeks.
Catchwords:	CRIMINAL LAW – application for adjournment of commencement of trial – accused without legal representation – appeal against decision of the Legal Aid Commission refusing legal aid – onus of proof of the Legal Aid Commission Act 1979 (NSW) – fairness to the accused – doubt as to whether the accused is truly impecunious – short adjournment granted
Legislation Cited:	Legal Aid Commission Act 1979
Cases Cited:	Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Category:	Procedural and other rulings
Parties:	Regina (Crown) Andrew John Sigalla (Accused)
Representation:	Counsel: T McDonald SC/ S Callan (Crown) In person (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) In person (Accused)
File Number(s):	2013/151155; 2013/355116
Publication restriction:	Restricted – trial pending

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application to vacate dates that have been set for some period of time. Approximately one month ago, Johnson J heard a similar application and on 10 May 2016 his Honour dismissed the motion. The motion before his Honour, and, indeed, the motion before the Court constituted by me, is that the proceedings that are listed tomorrow now be vacated and be adjourned for a period which has been variously described but seems to be at least until September or October of this year.

2. The manner in which proceedings are listed in this Court, through an arraignments judge, presupposes a degree to which the matters that are listed proceed in accordance with the scheduled timing. An adjournment to September or October of this year would mean that there would be no judge that could hear the matter before next year. It is not my intention to adjourn to September or October, not only because of the case management aspects associated with that proposition.

3. Essentially, the application that comes before the Court, and formally, according to the motion, notice of which was filed, is that the matter be adjourned until 1 November 2016.

4. The proceedings are agitated on two bases which are in some respects indirectly inconsistent. The first of them is an application that was made to the Legal Aid Commission in relation to the grant of legal aid to Mr Sigalla, who is the accused in the proceedings. There can be no doubt that the charges Mr Sigalla faces are serious criminal charges and therefore, in that respect, fall within a need to ensure that Mr Sigalla has the opportunity to obtain and rely upon legal representation to the extent possible. In any event, on or about 13 May 2016 the Legal Aid Commission, pursuant to the provisions of the Legal Aid Commission Act1979, refused Mr Sigalla’s application for legal aid. There is, of course, pursuant to the provisions of the Legal Aid Commission Act, a right to have that decision reviewed.

5. From that which has fallen from Mr Sigalla in these proceedings, it appears that, according to Mr Sigalla, the Legal Aid Commission required certain information which Mr Sigalla provided to them on the morning of 13 May 2016 in circumstances where he had been informed that the time limit for the provision of such material was 12 May 2016.

6. According to Mr Sigalla, at 6.45am on 13 May 2016 the Legal Aid Commission advised Mr Sigalla that legal aid had been refused. For the purposes of this application I accept that which I have described as being said by Mr Sigalla.

7. The situation is that 17 days after being informed of the refusal, Mr Sigalla appealed the decision. That appeal was within time, but it certainly was not as expeditiously processed as it could have been. Nevertheless, there being an appeal extant, the provisions of s 57 of the Legal Aid Commission Act require attention. That is the first aspect or basis upon which the adjournment of the proceedings is agitated.

8. The second basis is an unusual one in that it is based upon a proposition that Mr Sigalla will, in the fullness of time, have the resources through borrowings to fund the defence of the proceedings in a way that he desires. A number of counsel have been mentioned as being “available” on the basis of funding being obtained. Before the Court as otherwise constituted earlier, Mr Robberds QC was mentioned as a possible representative, as he was today. Otherwise, Mr Reynolds SC and Mr Botsman have been mentioned as representatives or possible representatives. In communication, counsel from Western Australia has been mentioned as a possible representative. None of that representation seems to be at a point that is certain or has the degree of certainty that the Court could rely upon in terms of the possibility of Mr Sigalla having legal representation.

9. I earlier stated that the two grounds agitated are, in some senses, indirectly inconsistent. The first of them depends upon Mr Sigalla’s indigent status and incapacity to fund the proceedings himself. The second seeks an adjournment on the basis that in a few weeks he will be capable of funding the proceedings himself. Stated in that way, and, of course, Mr Sigalla does not state it that way, but stated that way, there is an obvious philosophical inconsistency between the two propositions.

10. Nevertheless, there is nothing either in the Legal Aid Commission Act or in the matters that are put before the Court that does not allow an application based upon such proposition, and, indeed, the two are not necessarily inconsistent, particularly since the “self-funding” relies on a moot capacity to borrow and incur debt.

11. To take one example, the information requisitioned by the Legal Aid Commission in the course of the last of the applications for legal aid (and I add that there have been three, each of which has been refused, and an earlier appeal or review) was an asset statement of Mr Sigalla’s father-in-law on the basis that Mr Sigalla’s father-in-law apparently forwarded $1.2 million in funding for other litigation. The Legal Aid Commission, understandably, I hasten to add, sought to have Mr Sigalla’s father-in-law examined as an associated person of Mr Sigalla. Since that time, I am told by Mr Sigalla, he and his wife are estranged. That may make a significant difference to the attitude of the Legal Aid Commission. Frankly, I do not know.

12. The Legal Aid Commission in other cases of this kind with which I have been concerned has attended the proceedings to inform the Court of its procedures. I am aware through other extra-curial sources that in fact the Legal Aid Commission has its conference for the remainder of this week and it is unlikely, in those circumstances, that persons from the Legal Aid Commission will be readily available; although if the Court were to request it, I am sure they would make themselves available.

13. The Legal Aid Commission has been denied significant resources over a substantial period of time. That is not a criticism of government. Governments make decisions upon the allocation of funds in the way they must. But it is the reality that the courts face and that litigants face. When we have serious criminal proceedings, which are covered by the principles of the High Court in Dietrichv The Queen [1992] HCA 57; (1992) 177 CLR 292, much care must be taken that the Legal Aid Commission is not, on the one hand, funding a person more than capable of funding his own litigation or, on the other hand, for example, and I make no findings in this regard, funding someone else’s gambling debt. These are issues which the Legal Aid Commission is entitled to take into account in determining whether or not to grant legal aid.

14. One thing of which I am sure: the Legal Aid Commission, if asked to deal with a matter expeditiously, will do so. I am satisfied the Legal Aid Commission would deal with the matter in a timeframe which the Court would impose.

15. The next aspect of these issues is the manner in which the application for legal aid has been made. Ordinarily, an approach is made to Legal Aid for a solicitor or barrister on the panel that would be able to be funded and represented in proceedings of that kind before a court. The Legal Aid Commission has, for obvious reasons, a Serious Crime Panel which names persons who are experienced and competent in serious crime. That is not to say that some people who are not on the panel are not so experienced. But, nevertheless, there is such a list. Ordinarily, an application is made to Legal Aid by approaching a solicitor of that kind, who then makes application on the basis of that which is known, and that application can then be agitated and processed much more efficiently than would otherwise be the case. That seems not to have been the approach taken by Mr Sigalla.

16. When one adds all of those things together, and coupled with the inference the Court drew earlier about Mr Sigalla’s attitude to the expeditious resolution of the charges that are against him, one suspects that the appeal made 17 days after the application was done for a purpose other than the obtaining of legal aid or the expediting of the proceedings that are before the Court. I will return to that in a moment.

17. The second aspect, as earlier stated, of the application for adjournment is that there are outstanding in the Federal Circuit Court a costs order arising from proceedings that were taken and the dismissal of an aspect of the proceedings and costs that issued. Costs have been assessed as something in the order of $240,000 or $250,000. An amount of those costs has already been paid by Mr Sigalla and therefore will return an amount to him that may be used, if he were so minded, to fund the proceedings that are now before this Court.

18. Over and above that aspect, there are other proceedings against the same party in the Supreme Court relating to issues that arise from indemnities and/or guarantees that have been granted both by Mr Sigalla and that other party; and circumstances that amount to a charge to Mr Sigalla which, on Mr Sigalla’s view, ought to have been charged to the other party and ought not to have been charged to him. Mr Sigalla says, and there is evidence to confirm that approach, that there are good prospects of obtaining judgment in the proceedings in the Supreme Court, presumably in the Equity Division, but that is presently irrelevant.

19. The relevance of all of that, which does not immediately strike one dealing with a criminal charge, is that Mr Sigalla proposes, once the costs order in the Federal Circuit Court has borne fruit, once more to borrow money on the basis of the chose in action in the Supreme Court. There is material before the Court that suggests his prospects are not unreasonable, if that were attempted. In doing so, Mr Sigalla says that counsel then representing, and I do not wish to verbal that counsel, are willing to appear for him on the basis of that kind of funding. That may well be the case. There is nothing untoward in that approach.

20. It seems to me there are three or four fundamental issues. The first is obvious: what is the timing of the Legal Aid Commission matter and do the provisions of s 57(b) of the Legal Aid Commission Act apply such as to allow the Court not to adjourn the proceedings? The second aspect is: in all of that complicated arrangement about funding or self-funding of the criminal proceedings, it seems to me that ultimately Mr Sigalla is asking the Court to stay its hand on the basis of arrangements he may make with legal representatives who may or may not take proceedings and may or may not do so after Mr Sigalla has or has not obtained finances by some sort of litigation funding. If, as is stated, counsel for Mr Sigalla are so satisfied of the merits of Mr Sigalla’s proceedings before the Supreme Court in the Equity Division, it seems to me there are other obvious measures that could be taken to have counsel appear, subject to that funding being obtained at a later date.

21. That brings me back then to what I should do with the application that is before me.

22. I said earlier that, given all of the material before the Court, I suspect that there are motives in applying for an appeal that are not genuine. Having said that, I have no doubt that if legal aid were granted, Mr Sigalla would utilise it and deal with it.

23. It is said by Mr Sigalla that competent counsel would take three weeks to prepare for the criminal proceedings.

24. What I intend to do is this: I intend to adjourn the proceedings for two and a half weeks; that is, vacate the dates until Monday, 20 June 2016. That will allow two things to occur, on the information that Mr Sigalla has provided. First, it will allow orders to be made in the Federal Circuit Court which may allow other arrangements to be made with counsel in relation to the funding of these proceedings. Second, it will allow the review panel to deal with the appeal from Mr Sigalla.

25. Notwithstanding my suspicion as to the motives for the appeal, I consider in the circumstances of s 57(b) that I need more than a suspicion to be satisfied that the appeal is not bona fide, or is made frivolously or vexatiously, or intended to hinder or delay improperly the conduct of the proceedings.

26. As a consequence, I intend to adjourn the matter for three weeks. I make it clear that that three weeks, if it is intended to engage private counsel, are the three weeks that I expect will be utilised in the preparation of the proceedings.

27. I will make arrangements to empanel a jury on 20 June 2016 or 22 June 2016, depending on the availability of panels. I will do so and proceed on that basis, obviously subject to any other application, but notwithstanding the non-fulfilment of any of the expectations of Mr Sigalla either as to the capacity of counsel to be organised in that time or the eventuality of any legal aid appeal.

28. The other matter that I deal with at this stage is that I will put a tentative hearing time on the proceedings of four to five weeks. I will expect and make directions to the effect that each party will cooperate with the other party and the Court in ensuring that the Court and the jury, in particular, need only deal with those issues that are truly in dispute and bearing in mind the estimates of three or four weeks that have been given if the trial is so confined.

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Decision last updated: 07 August 2018