Regina v Cox

[1999] NSWCCA 229

CITATION:	Regina v Cox [1999] NSWCCA 229
FILE NUMBER(S):	CCA 60202/99
HEARING DATE(S):	10 August 1999
JUDGMENT DATE:	10 August 1999
PARTIES :	Regina v Ian Ormond Cox
JUDGMENT OF:	Sperling J at 2; Levine J at 15; McInerney AJ at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0872
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ

COUNSEL:	In Person (Appellant) P A Roberts SC (Crown)
SOLICITORS:	Commonwealth DPP (Crown)
CATCHWORDS:	CRIMINAL LAW & PROCEDURE - application for leave to appeal under Criminal Appeal Act 1912, s 5F - finding of fact below not indigent - no sufficient doubt and interests of justice not otherwise require intervention - application dismissed.
CASES CITED:	BWM (1996-97) 91 A Crim R 260, Canellis (1994) 181 CLR 309, Carter (CCA (NSW), 5 September 1995, unreported), Dietrich (1992-93) 177 CLR 292, Matovski (1988-89) 15 NSWLR 720, Steffan (1992-93) 30 NSWLR 633
DECISION:	Application for leave to appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60202/99

LEVINE J
SPERLING J

McINERNEY AJ

Tuesday 10 August 1999

REGINA v Ian Ormond COX

JUDGMENT

1    LEVINE J: I will ask Sperling J to deliver the first judgment.

2    SPERLING J: This is an application for leave to appeal from the determination of Ainslie-Wallace DCJ refusing to grant a permanent stay of proceedings pursuant to the decision in Dietrich (1992-93) 177 CLR 292 or, alternatively, an adjournment of the proceedings for longer than was in fact granted.

3    The applicant was to go to trial with others on 1 March 1999. The proceedings were adjourned to 8 March 1999 pending an appeal against a refusal of legal aid. On 9 March 1999, that appeal having failed, her Honour refused an application for a permanent stay but adjourned the proceedings for a period of one week to enable the applicant to apply for leave to appeal from her decision. No application for leave to appeal was filed at that stage.

4    On 22 March 1999, her Honour again refused an application for a permanent stay but adjourned the proceedings as against the applicant for at least three months to enable the applicant to receive necessary documents and to prepare his defence. The trial proceeded against the co-accused. The applicant's trial is now listed for 27 September 1999.

5    Application for leave to appeal was filed, as I understand it from the court papers, on 29 April 1999. The time for such an application is fourteen days. It appears, accordingly, that the application is out of time, but I put that point to one side.

6    The burden of the applicant's complaint on appeal, as it was before her Honour, would be that he is indigent, that he is without representation through no fault of his own, and that the proceedings ought accordingly to have been permanently stayed or a sufficiently long adjournment granted - eighteen to twenty-four months has been sought - to enable the applicant to acquire funds by gainful employment to finance his legal representation, assuming he were able to procure and comply with an order for release on conditional bail.

7    In her judgment given on 9 March 1999, her Honour said that she was not satisfied that the applicant was in fact indigent. Refusal of a permanent stay and of an adjournment predicated upon indigence was the necessary result of that finding.

8    The appellant bore the onus of establishing that he was indigent as a necessary condition for entitlement to the relief which he sought: Canellis (1994) 181 CLR 309 at 328. There was evidence before the court which strongly suggested that the applicant's evidence concerning his financial affairs was not truthful. Her Honour did not accept the applicant's evidence that he was indigent. There was no objective evidence which required her Honour to find otherwise. A passage from Carter, (CCA (NSW), 5 September 1995, unreported), applies with equal force to this case and embodies the approach which this court should take.

"It is difficult to argue that a judge is in error when he says that he has not been satisfied by an onus carrying party that his evidence is true. In the present case, the judge said that he did not accept the appellant's evidence that he did not have access to funds other than the assets and income to which he referred in his evidence. There was plenty of material before the judge which cast doubt upon the truthfulness of the appellant's evidence."

9    The absence of satisfaction that the applicant was in fact indigent was also the basis of her Honour's determination of 22 March 1999. The state of the relevant evidence was no different at that time.

10 An appeal under s 5F is not a re-hearing: BWM (1996-97) 91 A Crim R 260. If leave to appeal is granted in such a case as this, the appeal is against a discretionary decision with the limitations that that implies.

11    But, before one comes to the merits of any appeal there is the question of leave. Leave will be granted only where the decision is attended by sufficient doubt to warrant the matter being argued on appeal: Steffan (1992-93) 30 NSWLR 633 at 644-5, or where the interests of justice otherwise require the intervention of the court: Matovski (1988-89) 15 NSWLR 720 at 723.

12    In Carter the Court of Criminal Appeal gave consideration de novo to the question of adjournment, as distinct from the question of a permanent stay. In the present case, however, the alternative of adjournment was a live issue before her Honour as an alternative to a permanent stay. The request for an adjournment is now put on a different basis from that on which the adjournment was granted; namely, for time to earn sufficient money to pay for legal representation rather than for time to prepare. The present ground is, however, predicated on the appellant not having sufficient funds to pay for legal representation, the very matter of which her Honour was not satisfied and which resulted in the application for a permanent stay being refused. In these circumstances, the interests of justice do not require that this Court should grant leave to appeal with a view to obtaining a longer adjournment.

13    For these reasons, the determination in this case is not attended by sufficient doubt to warrant the grant of leave to appeal, nor do the interests of justice require the intervention of this court for any other reason that has been established.

14    I propose that the application for leave to appeal be dismissed.

15    LEVINE J: I agree.

16    McINERNEY AJ: I agree.

17    LEVINE J: The orders will be as Sperling J has proposed.

**********