R v Sigalla

[2016] NSWSC 585

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sigalla [2016] NSWSC 585
Hearing dates:	6 May 2016
Decision date:	10 May 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Notice of Motion filed 4 May 2016 is dismissed.
Catchwords:	CRIMINAL LAW - application to vacate trial date and stay proceedings - Dietrich application - reliance on affidavit of solicitor on information and belief - no affidavit of Applicant - not established that Applicant is indigent - application to adjourn trial to obtain funds for legal representation - similar application previously refused - application to vacate trial refused
Legislation Cited:	Evidence Act 1995
Cases Cited:	Dietrich v The Queen [1992] HCA 57; 177 CLR 292 R (Cth) v Petroulias (No 13) [2007] NSWSC 535 R v Sigalla [2016] NSWSC 465
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Andrew John Sigalla (Accused)
Representation:	Counsel: Ms P McDonald SC; Ms S Callan (Crown) Mr G O’L Reynolds SC; Mr PD Lange (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) --- (Accused)
File Number(s):	2013/151155; 2013/355116
Publication restriction:	Restricted - trial pending. On 22 November 2016, a jury returned verdicts of guilty upon 24 counts under s.184(2)(a) Corporations Act 2001 (Cth). Sentence was passed for these offences on 10 February 2017: R v Sigalla [2017] NSWSC 52. In these circumstances, the non-publication order made on 10 May 2016 was lifted.

Judgment

1. JOHNSON J: At the outset, as this is an interlocutory application brought not long before a pending jury trial, I make a non-publication order with respect to everything that is said today in Court and with respect to everything that was said at the hearing of this matter last Friday, 6 May 2016. I will proceed to give my judgment.

2. By Notice of Motion filed 4 May 2016, the Accused, Andrew John Sigalla, seeks orders that his trial, fixed to commence on 1 June 2016, be adjourned to a date to be fixed, and that the proceedings be stayed until further order.

3. The hearing of the Notice of Motion proceeded before me at the completion of the Arraignments List at 3.00 pm last Friday, 6 May 2016. At the conclusion of the hearing at 4.00 pm that day, I reserved my decision on the application until 9.15 am today.

4. I approach the present application upon the basis that the Accused seeks:

1. a stay in accordance with the principles in Dietrich v The Queen [1992] HCA 57; 177 CLR 292; or

2. if the Dietrich principles are not satisfied, an adjournment of the trial to allow the Accused to obtain funds to pay for his legal representation.

History of Proceedings

5. It is appropriate to refer to the history of the proceedings in this Court. Following committal for trial, the Accused appeared for the first time in the Supreme Court in the Arraignments List on 6 February 2015. On the application of the Accused, who was represented by Mr Joyner, solicitor, the proceedings were stood over to the Arraignments List on 1 April 2015.

6. On 1 April 2015, Mr Joyner appeared again. An adjournment was sought as the Accused was appealing against a refusal of legal aid. The proceedings were stood over to 8 May 2015 and I said that the matter would proceed to arraignment on the next occasion.

7. On 8 May 2015, Mr Robberds QC appeared for the Accused. The Accused was arraigned on 24 counts of using his position as a director of TZ Limited dishonestly with the intention of gaining a benefit. The conduct alleged related to a period between December 2006 and March 2009. The Accused pleaded not guilty to each count.

8. The trial was estimated at four-to-six weeks. The Crown sought a trial date in October 2015, which was available. Mr Robberds QC asked for a later date in February 2016 as arrangements (which I took to be financial) had to be put in place by the Accused for instructing his legal representatives. I acceded to the defence application and fixed the trial for 1 February 2016, with a direction that the matter be brought back into the Arraignments List on 11 September 2015 to give appropriate pretrial directions.

9. On 11 September 2015, Mr Robberds QC appeared and sought that the trial date be vacated and a new trial date fixed for late April 2016 because of a civil trial in which Mr Robberds QC was briefed. The Crown opposed the application. For reasons expressed in a judgment in the transcript of 11 September 2015, I declined the application. I was influenced largely by the fact that Mr Robberds QC had a preliminary involvement only in the Accused's matter so that the briefing of replacement counsel was open to the Accused. I gave pretrial directions and stood the matter over to 2 October 2015 to discuss any pretrial issues.

10. On 2 October 2015, Mr Joyner told the Court he was having discussions with Mr Chris Withers of counsel as possible trial counsel. It was said by Mr Joyner that there would be an application to vacate the trial date and I gave directions for the filing and service of a Notice of Motion and affidavit which was to come before me in the next Arraignments List on 6 November 2015.

11. On 6 November 2015, Mr Matouk, a solicitor from Mr Joyner's office, sought leave to withdraw. The Accused appeared and sought to vacate the February 2016 trial date and to have a new trial date fixed for May 2016. The Crown opposed that application. The defence application was based upon certain steps which the Accused said would be taken so as to allow Mr Robberds QC to appear at the May 2016 trial.

12. Not without considerable misgivings, I acceded to the application. As my judgment contained in the transcript of 6 November 2015 makes clear, the principal consideration was the solid indication that Mr Robberds QC would appear for the Accused at the trial, with the attendant knowledge that Mr Robberds QC would conduct the trial for the Accused in a timely and most efficient manner. As the transcript of 6 November 2015 makes clear, it was emphasised to the Accused, and the Accused entirely accepted, that the trial would proceed in May 2016. The matter was stood over to the Arraignments List on 4 December 2015.

13. On that day, the Accused appeared in person and informed the Court that Mr Robberds QC and a junior would appear for him at trial. The matter was stood over to 12 February 2016.

14. On 12 February 2016, the Accused appeared and issues were raised again about funding of legal representation.

15. On 19 February 2016, the matter came before Wilson J, the appointed trial Judge, and her Honour made pretrial orders.

16. On 30 March 2016, the matter again came before Wilson J, who gave directions that a foreshadowed Notice of Motion seeking to vacate the trial date be listed before her Honour on 8 April 2016.

17. On 8 April 2016, Wilson J heard the application to vacate the trial date and dismissed the Notice of Motion: R v Sigalla [2016] NSWSC 465. Wilson J outlined the history of the matter, and the submissions which had been put, and concluded (at [26]) that her Honour was not satisfied that the Accused will be unable to receive a fair trial if he was unrepresented at trial.

18. On 27 April 2016, the matter came before Rothman J (the new trial Judge) for mention. Given the increased estimate if the Accused was to be unrepresented (seven-to-eight weeks), Wilson J was unable to preside and Rothman J had been appointed as the trial Judge.

19. Rothman J gave directions for any Notice of Motion of the Accused to be listed before me in the Arraignments List on 6 May 2016, with a timetable being set for the filing of the Notice of Motion, affidavit and submissions. It was that application which I heard on 6 May 2016 and to which this judgment relates.

The Present Application

20. At the hearing of the Notice of Motion on 6 May 2016, the Accused was represented by Mr Reynolds SC and Mr Lange of counsel, on what the Court was informed was a pro bono basis.

21. An affidavit of Brendan Pigott sworn 4 May 2016 was read for the Accused. Mr Pigott is a solicitor for the Accused in civil proceedings in the Supreme Court. His affidavit was based on information and belief with respect to the financial affairs of the Accused. There was no reliance upon an affidavit of the Accused.

22. As the transcript of the hearing of 6 May 2016 makes clear, the Crown took issue with the affidavit of Mr Pigott and had done so as well in written submissions furnished prior to the hearing.

23. Senior counsel for the Accused submitted that he could call the Accused to give evidence so that the Crown could cross-examine the Accused on the contents of Mr Pigott's affidavit. The Crown objected to this course.

24. I declined to allow this to occur. The Accused had been aware of the timetable fixed by Rothman J for the hearing and no affidavit of the Accused had been filed. In my experience, that is the ordinary course where a Dietrich application is made, as to which the Accused bears the onus of proof.

25. The affidavit of Mr Pigott was read, with s.75 Evidence Act 1995 permitting its use on an interlocutory application. It nevertheless remained a matter for the Court to determine what weight to give to its contents. There were no annexures or other documents relied upon by the Accused apart from the affidavit of Mr Pigott. The Accused had told Mr Pigott that he had been refused legal aid twice as he failed the means test and that, although he had applied again for legal aid, he expected it to be refused.

26. The written submissions and transcript of the hearing disclose the arguments which were advanced on behalf of the parties. It is not necessary to set them out in any detail in this judgment.

27. Put shortly, senior counsel for the Accused submitted that the Accused was indigent and that the Dietrich principles applied to him so that the trial should be stayed. Whilst acknowledging the history of the matter, senior counsel for the Accused urged the Court to allow the Accused a “last chance to get his house in order”. He asked for a trial date in October 2016, by which time the Accused expected to be able to proceed for reasons disclosed in Mr Pigott's affidavit.

28. The Crown submitted that the Accused had not discharged the onus of establishing he was indigent and that the Dietrich application should fail on that and other bases. The Crown submitted that the Court could have no confidence that if the trial was adjourned, the same scenario would not present itself again in the future.

Decision

29. The Dietrich principles are well known and are set out in the written submissions of the parties. I have applied them for the purpose of this application.

30. In my view, there is a problem for the Accused at the first hurdle. The evidentiary base for this application is a hearsay account of the Accused to Mr Pigott concerning his financial affairs. Its contents were challenged by the Crown in the sense that they were not accepted as being accurate. The onus lies upon the Accused to demonstrate that the Dietrich principles apply to him. I am not satisfied, on the evidence in this application, that he has discharged the onus. That basis for a stay is not made good.

31. I move to consider the broader question of whether the trial should be adjourned to allow the Accused to obtain funds for his defence. The evidence of Mr Pigott refers to civil proceedings in this Court against a Frank Hudson, where damages of $2 million are sought. Mr Pigott acts for the Accused in those civil proceedings. Mr Pigott does not state where those proceedings are up to, nor does he express any opinion about the Accused's prospects of success, nor the known capacity of Mr Hudson to meet any verdict found against him and in favour of the Accused.

32. Mr Pigott refers to a costs order against Mr Hudson in the Federal Circuit Court, which is at the first stage of assessment and which is said to have been costed at $377,000.00.

33. The affidavit of Mr Pigott states that it is the intention of the Accused to seek to borrow funds on the security of his interest in the civil litigation. The material before the Court is quite nebulous in this respect.

34. Given the history of this matter, if this trial is vacated, the prospect is that the Court will be met by a similar application in the future. If the present trial is vacated, there is no realistic prospect that a trial could proceed before 2017.

35. There is a public interest in a trial for a serious criminal matter proceeding without delay. The interests of the Accused must be and have been taken into account. With respect, I adopt the reasoning of Wilson J in R v Sigalla at [20]-[26]. See also R (Cth) v Petroulias (No 13) [2007] NSWSC 535 at [37]-[42].

36. In particular, I agree with the statement of Wilson J at [26] of the judgment of 8 April 2016, where her Honour said:

“I am not satisfied that the accused will be unable to receive a fair trial. I have referred to the duty and the obligations of the trial judge in ensuring that he does receive a fair trial, and I am content that that duty and those obligations are such that a fair trial will be provided to the accused whether he has the benefit of legal representation or not."

37. I decline to vacate the trial date.

38. The Accused's Notice of Motion filed on 4 May 2016 is dismissed.

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Decision last updated: 13 February 2017