Regina v Promizio

[2004] NSWCCA 75

Reported Decision: 142 A Crim R 592

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Promizio [2004] NSWCCA 75
HEARING DATE(S):	13/02/04
JUDGMENT DATE:	31 March 2004
JUDGMENT OF:	Sully J at 1; James J at 2; Hulme J at 76
DECISION:	Appeal against conviction dismissed.
CATCHWORDS:	Criminal Law - conviction appeal - no legal representation at trial - Dietrich v The Queen
LEGISLATION CITED:	Customs Act
CASES CITED:	Craig v State of South Australia (1995) 184 CLR 163 Dietrich v The Queen (1992) 177 CLR 292
PARTIES :	Regina v Alberto Promizio
FILE NUMBER(S):	CCA 60344/2003
COUNSEL:	MJ King - Crown BT Stratton QC - Appellant
SOLICITORS:	S O'Connor - Crown Ross Hill & Associates - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/1091
LOWER COURT JUDICIAL OFFICER :	Finnane DCJ

15

60344/03

JAMES.J
HULME J

Wednesday 31 March 2004

REGINA v Alberto PROMIZIO

JUDGMENT

1 Sully J: I agree with James J.

2 James J: Alberto Juan Promizio has appealed against his conviction, after a trial in the District Court before his Honour Judge Finnane and a jury, on a charge under s 233 B (1)(b) of the Customs Act of importing into Australia on 26 August 2001 a quantity of cocaine being not less than the trafficable quantity. The trial of the appellant took place between 9 September 2002 and 20 September 2002. On 7 February 2003 Judge Finnane sentenced the appellant to a term of imprisonment of nine years with a non parole period of four and a half years, commencing on 26 August 2001, the date on which the offence had been committed and the appellant had been arrested. There is no application for leave to appeal against the sentence imposed by Judge Finnane.

3 The appellant was not legally represented at his trial and the only ground of appeal against conviction relates to his not having been legally represented at the trial. He was legally represented in part of the proceedings on sentence. On this appeal he has been represented by senior counsel.

The Crown Case at the Trial

4 The Crown case at the trial, which the jury must have accepted and many parts of which were not controversial, can be briefly summarised as follows.

5 The appellant is a Spanish speaking Argentinian national who has little knowledge of English. On the morning of Sunday 26 August 2001 the appellant arrived at Sydney Airport on a flight from Argentina. The appellant had two pieces of baggage, a soft sided black “Gabbiano” brand bag and a hard sided, navy blue suitcase equipped with wheels, with a white marking on the suitcase reading “Clipper Club.” In this judgment I will refer to the latter piece of baggage as “the suitcase.”

6 Customs officers at Sydney Airport observed that there was a strong smell of glue emanating from within the suitcase, the suitcase appeared to be heavy compared to a normal suitcase of its size and the suitcase appeared to be excessively thick on one side of its base, so that, if the suitcase was not supported, it fell over on one side. A customs officer had a conversation with the appellant, which was tape recorded.

7 The suitcase was examined further by Federal police. When a section of plastic in the interior of the base of the suitcase was broken away, twelve packages were revealed. On later analysis, these packages were found to contain cocaine of about 50% purity, the total bulk weight being 1981.3 grams and the total weight of pure cocaine being 966.8 grams.

8 Later on 26 August 2001 the appellant was interviewed by an Australian Federal Police agent at the Australian Federal Police headquarters in Sydney, in an interview that was tape-recorded. A Spanish interpreter was present at the interview and translated the questions the appellant was asked and the appellant’s answers to those questions.

9 In the interview the appellant said that the suitcase (which was referred to in the interview as “the bag”) had been lent to him in Argentina by a man named Jorge Tomas or Thomas. The appellant was unsure whether this person’s name was spelt “Tomas” or “Thomas”; I will refer to this person in this judgment as “Tomas.” In answers in the interview the appellant said that Tomas had lent the appellant the suitcase, because the appellant did not have one; that he had known Tomas for six or seven months; that the suitcase had been empty when it was lent to him; that the suitcase had been given to him one day before his departure to Australia; that the clothes in the suitcase were his; that he had packed the suitcase himself; and that he had boarded the plane with the suitcase and his other bag and had put both pieces of baggage in an overhead compartment in the plane. The appellant said that he had come to Australia as a tourist but later in the interview said that his son had asked him to come to Australia to “have a look at the country,” apparently for any employment opportunities for the son.

10 A scientific procedure known as an “Ionscan” was performed on the suitcase and on other objects which had been in the possession of the appellant when he arrived in Sydney. This procedure revealed the presence of cocaine residues on the handles of the suitcase, on a documents purse the appellant had and on the appellant’s passport. At the trial an expert witness gave evidence that, in his opinion, because of the high readings for the presence of cocaine on the purse and the passport, the cocaine residues on the purse and on the passport could not have been transferred to the purse or the passport from the handles of the suitcase. In the witness’s opinion, the purse and the passport had been contaminated with cocaine by being touched by a hand that was itself highly contaminated with cocaine.

The Defence Case

11 In the interview at Australian Federal Police headquarters on 26 August 2001 the appellant said that he considered himself innocent and that he had been tricked.

12 At the trial, after the Crown prosecutor had concluded her opening address, the appellant, when asked by the trial judge if he wanted to say anything to the jury at that stage of the trial, said:

“yes, that I am innocent. I can prove that I didn’t know anything about that.
…..I borrowed that bag and I not know what was in it and that I came here for another reason to look for work.
…...I think that it might be a different bag, that somebody actually swapped the bags around because when I left the airport in Ezeiza Argentina I had no problems.

13 At the trial the appellant did not give evidence himself and did not call any witness. He did, however, make a closing address to the jury.

14 Although the appellant had said in his brief opening remarks to the jury, which I have already quoted, that he thought that there might have been a swapping of bags, it is clear that the appellant’s case at the trial was, simply, that he did not know that the suitcase contained drugs. Any contention that the suitcase in which the drugs were found was not the appellant’s suitcase and that the suitcase in which the drugs had been found had been substituted for the appellant’s own bag, would have been contradicted by a number of the answers which the appellant had given when interviewed on 26 August 2001, including his answers that the suitcase in which the drugs had been found had been lent to him by Tomas, that he had packed the suitcase himself and that the clothes in the suitcase were his.

15 In his closing address to the jury at the trial the appellant repeated that the suitcase he had brought into Australia had been lent to him by Tomas and that the clothes in the suitcase were his. There was evidence of these matters, because the recording of the interview of the appellant on 26 August 2001 had been admitted into evidence in the Crown case. In his closing address the appellant sought to explain the strong smell of glue emanating from the suitcase by saying that he had recently changed the soles of a pair of shoes he had packed.

History of the Criminal Proceedings Against the Appellant

16 As I have already indicated, the appellant was not legally represented at the trial. There had, however, been two grants of legal aid to the appellant, both of which had been cancelled before the trial commenced, and it is necessary, having regard to the terms of the only ground of appeal, to review in some detail the history of the criminal proceedings against the appellant, including the grants of legal aid to him.

17 At some time before 17 October 2001 the appellant received a grant of legal aid through the Legal Aid Commission to defend the charge which had been brought against him of importing cocaine.

18 On 17 October 2001 a paper committal proceeding took place at which the appellant was legally represented pursuant to the grant of legal aid. At the conclusion of the paper committal proceeding the appellant was committed for trial.

19 On 26 October 2001 the trial of the appellant on the charge of importing cocaine was fixed to commence on 11 March 2002.

20 In about early February 2002 the grant of legal aid to the appellant was cancelled. On 15 February 2002 the trial date of 11 March 2002 was vacated, to enable the question of legal representation for the appellant to be examined further, and a new trial date of 6 May 2002 was fixed.

21 On 18 February 2002 the appellant appealed to the Legal Aid Review Committee against the cancellation of the grant of legal aid. This appeal was successful and the appellant was again granted legal aid.

22 At mentions before the Chief Judge of the District court on each of 21 March 2002, 5 April 2002 and 12 April 2002 the trial date of 6 May 2002 was confirmed.

23 On 6 May 2002, on the application of the appellant, the trial date of 6 May 2002 was vacated, on the grounds that on 2 May 2002 the grant of legal aid to the appellant had been cancelled and that the appellant wished to appeal to the Legal Aid Review Committee against the cancellation of the grant of legal aid.

24 On 17 June 2002 the Legal Aid Review Committee decided not to allow the appellant’s appeal and decided to refuse further funding to the appellant.

25 The appellant was notified of the Legal Aid Review Committee’s decision of 17 June 2002 by a letter from the Committee dated 19 June 2002, which was in the following terms:

“Your appeal was considered by the Legal Aid Review Committee on 17 June 2002.
There is no evidence of a failure to follow instructions or pressure to change evidence by Ms James, nor any reason for your lack of confidence
Legal aid has now been cancelled on two occasions for a lack of co-operation. On both occasions this has been preceded by you making unsupportable accusations about two in-house legal representatives to Judges of the District Court.
The Legal Aid Commission considers you have engaged in a course of conduct to deliberately prevent effective legal representation and to manipulate the legal process. The conduct has included:

1. a failure to co-operate in providing instructions; and

2. unreasonable conduct which has impaired case preparation; and

3. unacceptable conduct including allegations without foundation made towards solicitors of the Legal Aid Commission.

On reviewing this case the Committee has made a determination to confirm the second cancellation of legal aid and given the intractable nature of your conduct refuses to reinstate legal aid or provide any further grant of Legal Aid for the conduct of your case.”

26 Ms James, who is mentioned in the letter, was a solicitor employed by the Legal Aid Commission who had acted for the appellant.

27 The appellant wrote in Spanish on the letter of 19 June 2002 a number of assertions, which were to the effect that Ms James had not carried out his instructions, that she had not acted ethically and that he had lost confidence in her.

28 On 28 June 2002 the appellant wrote a letter in Spanish which was apparently placed before the Chief Judge of the District Court on a mention on that day. In the letter the appellant asked the court to appoint a named solicitor (Mr Paul Hardin) as his solicitor, because that solicitor had been giving the appellant free legal advice and had earned the appellant’s trust. In the letter the appellant contended that he could not be denied what he described as the “universal right” to have a lawyer of one’s own choice.

29 At the mention on 28 June 2002 the trial of the appellant was fixed for 9 September 2002 and the proceedings were stood over for mention on 4 July 2002, so that the appellant’s letter of 28 June 2002 could be translated into English.

30 On 3 July 2002 the appellant prepared a document in Spanish which, translated into English, was in the following terms:-

“Submission:
Based on the principles established in Dietrich’s case a permanent stay of proceedings should be granted due to the lack of legal representation.
I was initially granted Legal Aid but was subsequently terminated due to difficulties which [arose] between myself and the solicitor working for the Commission.
I subsequently lodged an appeal to the Legal Aid Commission for alternative representation but was denied. The Commission advised me that they would not allocate a solicitor from the commission due to the previous difficulties.
I later approached Mr. Paul Hardin for legal representation with funding to be provided by the Commission. I was then advised by the Commission that they would not provide any funding whatsoever. Due to this decision I have no legal representation nor can I afford private representation.
I am very limited with English and have sought help from Spanish speaking inmates to write this letter. Even if I [were] to conduct the trial on my own I still would require an interpreter which I cannot fund. It would also be impossible for me to mount an appropriate defence as I am not familiar with any Australian laws, or rules of evidence. If the trial is forced on it would surely lead to a [trial] riddled with grounds of appeal.”

31 The letter, including the appellant’s application for a permanent stay of proceedings based on the principles in Dietrich v the Queen (1992) 177 CLR 292 came before Judge Williams in the District Court on 4 July 2002. The appellant appeared, unrepresented, at the hearing. Mr Humphries, the director in charge of the criminal division of the Legal Aid Commission, attended the mention. A Spanish interpreter was present at the hearing and interpreted for the appellant. An incomplete transcript of the hearing before Judge Williams, which this Court was informed was the only available transcript, was before this Court on this appeal.

32 In the course of the hearing, Judge Williams said to Mr Humphries:-

“Mr Humphries the only reason that I asked someone from Legal Aid to come was so that I could understand that there is no likelihood of Mr Promizio getting legal aid.”

33 Mr Humphries replied:

“The situation is that Mr Promizio has been provided with two solicitors from the Legal Aid Commission. In each case he has been unable to maintain a solictor/client relationship with those solicitors. I am satisfied that they have acted in an entirely professional confident ( semble competent) manner to assist Mr Promizio. Mr Williams of counsel was briefed. There is apparent dissatisfaction with Mr Williams. It is a situation whereby the decision of the Legal Aid Review Committee in my view binds me, your Honour.
Can I say that in my experience for the Committee to perhaps make the comments that they did would indicate a fairly firm view. It is somewhat unusual for them to make comments like they did. There was a large amount of material placed before the Committee to enable them to make an informed view as to the matters that were raised. It is a situation whereby it would be very unlikely – I will simply say that the Legal Aid Commission is not prepared to make any further funding available to Mr Promizio for either a private lawyer or for anyone else. He has been referred to the Bar Association for pro bono committee as a method of assistance.
However, and this is a comment from me, your Honour, unless there was a significant change in the manner in which Mr Promizio deals with any legal representative, I think it would be very difficult for them to ethically maintain a relationship with him, and that there would be a situation that the legal practitioner would probably feel obliged to withdraw. As I said, there would need to be a significant difference in the relationship that he has managed to evidence to date in the manner he deals with his legal representatives.”

34 The following exchange between Judge Williams and the appellant, through the interpreter, then occurred:-

Mr Promizio, the situation is this, that firstly – if you can translate as we go along – I am not able to appoint a lawyer to represent you. You have been appointed representatives through the Legal Aid Commission which you have been unhappy with. That does not justify the court in granting you a stay of proceedings. What that means is, just listen to me, what that means is that you will have to run the trial yourself and represent yourself at the trial--
Interpreter: I will be happy to do so.
His Honour: All right. As I said I am not prepared to grant a stay of proceedings based on any Dietrich basis. I will confirm the trial dated 9 September.”

35 Mr Humphries said that, if the appellant was successful in obtaining pro bono legal representation, the Legal Aid Commission would be ready and willing to provide any assistance to enable the pro bono legal representative to “come to grips with the matter.”

36 Judge Williams said to the appellant:-

“Well, you can apply to the New South Wales Bar Association to see if they are prepared, if someone is prepared to act for you free of charge, I will provide you with the address, or I will find out the address of the Bar Association for you but you should get in touch with them as soon as possible because if you delay in getting in touch with them that won’t be an excuse to have the trial put off on 9 September.
Interpreter: Yes I want to go to trial your Honour.”

37 Mr Humphries said that, although he thought the New South Wales Bar Association had already been contacted, he would undertake to contact the New South Wales Bar Association by telephone and advise the Bar Association that the appellant was requesting assistance.

38 I will now refer to certain aspects of the trial itself.

39 A translation into Spanish of the complete Crown brief was served on the appellant before the trial commenced. A Spanish interpreter was provided for the appellant during the whole of the trial. An attempt was made each evening to have that day’s transcript translated into Spanish and to have the translated transcript supplied to the appellant. However, as the trial progressed, the translation of the transcript into Spanish fell behind.

40 In the course of his opening remarks to the jury, Judge Finnane told the jury:

“The accused himself is sitting over there in the dock and next to him is a lady who is an interpreter. He has no legal representatives here and you should not speculate on that. All I can say to you is that normally persons would be represented in any serious criminal trial by a lawyer. But from time to time people do exercise their rights to appear without lawyers or they find it impossible to get lawyers to appear for them for one reason or another. Before this trial was set down before me today, all the questions were explored, you can be sure, about Mr Promizio’s legal representation and another judge took a lot of care to make sure that it was an appropriate thing to set this matter down for trial without him appearing with a lawyer.”

41 On a number of occasions during the trial the appellant complained to Judge Finnane that he did not have a lawyer. He said, for example, “ I have to ask for a lawyer.” “You can’t take the right from me of having a lawyer.”

42 On such occasions, the trial judge often responded by saying words to the effect that another judge had investigated the question of legal representation for the appellant and had refused the appellant’s application for a stay of proceedings and that he, the trial judge, did not intend to listen to further argument from the appellant. For example at p 14 of the transcript the appellant said “I have to ask for a lawyer,” to which the trial judge replied:-

“That has already been determined against you. A Judge has already decided you should come to trial because you have dismissed two groups of lawyers and I am not going into that one again.”

43 During the Crown case at the trial the appellant indicated to the trial judge that he would like himself to adduce evidence from two witnesses living in Argentina, his son Carlos Alberto Promizio and a friend Juan Ricardo Manfredi. Copies of statements by these two persons were faxed to the court.

44 In his statement the appellant’s son said that on 24 August 2001 he had taken the appellant to the airport for the flight to Australia. At the airport the appellant had checked in his baggage, which was described as “a light blue vinyl bag with black piping with no marks or indentificatory marks on it.” The appellant’s son said that the purpose of the appellant’s visit to Australia, apart from tourism, was to see whether there were any job opportunities in Australia for the son, who was an electronics technician. The appellant’s son said in his statement that he had lent the appellant the money for the trip. Part of the statement reads:-

“That knowing that Mr Jaime Diaz Mira lent my father the bag where allegedly drugs were found on my father and that corroborating this with a witness that was present at the bar Opera on Corrientes and Callao Streets, when this person handed my father this bag, and having the details of Mr Jaime Diaz Mira I decided to make a report to the Argentine Justice.”

45 The appellant’s son concluded his statement by saying that “due to work commitments,” neither he nor Mr Manfredi could go to Australia to give evidence in the court proceeding in Australia.

46 In his statement Juan Ricardo Manfredi said he had been present at a bar in Argentina, when a man who Mr Manfredi said was named Jaime Diaz Mira, arrived with “a vinyl type bag of light blue colour and black piping.” The appellant had told Mr Manfredi that Mira was going to lend the appellant the bag the appellant would take on the trip.

47 An application was made by the appellant at the trial that the trial judge should order that evidence be taken from the appellant’s son and Mr Manfredi by means of video link. In a judgment given on 17 September 2002 the trial judge refused the application. In the judgment the trial judge said that he considered that evidence from the appellant’s son and Mr Manfredi would be irrelevant or, if given at the trial, would actually weaken the appellant’s case. In both statements the person alleged to have lent the appellant the bag was named as Jaime Diaz Mira, whereas the appellant when interviewed on 26 August 2001 had said that the bag was lent to him by a person named Jorge Tomas. In the statements by both witnesses the bag which was allegedly lent was described as a vinyl type bag of a light blue colour with black piping and such a bag would have been quite different from either of the pieces of baggage the appellant had brought into Australia. After referring in his judgment to these matters, the trial judge also said “I’ve also been told that to establish a link could cost $50,000 or more and that it could take some days, weeks or months to organise.”

48 After the Crown prosecutor closed the Crown case, the trial judge informed the appellant of the choice he had of both giving evidence and making a final address to the jury or of simply making a final address. The appellant asserted that he was confused about the difference between giving evidence and making an address and asked to be supplied with a lawyer. The trial judge said that he would have inquiries made about obtaining the services of a pro bono lawyer for the limited purpose of giving advice to the appellant on what course he should take. After a short adjournment the trial judge reported that his associate had communicated by telephone with the Legal Aid Commission and that a solicitor from the Legal Aid Commission would come up to the court to advise the appellant. After a further short adjournment, a solicitor from the Legal Aid Commission (Mr Evenden) told the court:-

“I will just indicate I have had a conference with Mr Promizio in the cells and provided him with some advice. My understanding is that he does not intend to give any evidence in this trial.”

49 When the trial resumed in the presence of the jury, the trial judge said to the appellant that he understood that the appellant did not wish to give evidence and the appellant replied “yes, that’s what I have been advised to do.”

50 After the Crown prosecutor had concluded his address, the appellant addressed the jury. The early part of the appellant’s address, from about p 375 to p 381 of the transcript of the trial, was relevant and clear and generally limited to matters of which there had been evidence at the trial. At p 381 of the transcript the trial judge commented “Mr Promizio you have done very well up to now.” However, later in the appellant’s address, the trial judge interrupted on a number of occasions when the appellant referred to matters of which no evidence had been given at the trial.

51 There is only one ground of appeal against conviction namely:-

the appellant did not receive a fair trial because the trial judge did not grant an adjournment or stay until he was given an opportunity to obtain legal representation at the trial.

52 It was submitted by counsel for the appellant that at the trial the appellant had had three serious disadvantages (1) he had little knowledge of English (2) he had little knowledge of the legal system under which he was being tried (3) he was not legally represented.

53 As to the first disadvantage, it was acknowledged by counsel for the appellant that efforts had been made to overcome or lessen this disadvantage, in that the appellant had been supplied with a translation into Spanish of the whole of the Crown brief; he had been provided with a competent interpreter throughout the trial; and efforts, which had not been entirely successful, had been made to supply him progressively with a translation into Spanish of the transcript of the trial.

54 As to the second disadvantage, it was acknowledged by counsel for the appellant that the trial judge had endeavoured to explain to the appellant the various procedures in the trial, and no complaint was made on this appeal about any of the explanations the trial judge had given. However, it was submitted that it was apparent from the transcript that the appellant had had difficulty in understanding a number of procedures in the trial, and particularly the difference between giving evidence and making a final address to the jury.

55 It was submitted by counsel for the appellant that the greatest disadvantage the appellant had had at the trial was the lack of legal representation and that this disadvantage had aggravated his other disadvantages.

56 It was submitted by counsel for the appellant that at a number of stages in the trial the appellant had complained to the trial judge about not having a lawyer and had said to the trial judge that he wanted a lawyer. On these occasions the trial judge had dismissed the appellant’s complaints and requests for a lawyer, on the basis of what other judges had on earlier occasions decided; and, particularly, on the basis that Judge Williams on 4 July 2002 had refused to grant the appellant a stay of proceedings, and had fixed a trial date for 9 September 2002. It was submitted that, instead of dismissing the appellant’s complaints and requests on the basis of what Judge Williams or any other judge had earlier decided, the trial judge should have independently considered for himself whether he should grant the appellant some form of relief.

57 Although counsel for the appellant referred to Dietrich and Craig v State of South Australia (1995) 184 CLR 163, it was not submitted by counsel for the appellant that the trial judge should have granted, or even that the trial judge should have considered, a further application for a stay of proceedings or an adjournment on the basis of the principle stated by Mason CJ and McHugh J in their joint judgment in Dietrich at p 315 (to which I will return later in this judgment).

58 What was submitted by counsel for the appellant was that, the appellant having complained about not having legal representation, and having requested that he be supplied with a lawyer, the trial judge should have adjourned the trial for a short period, (a period of one day only was mentioned), so to as afford the appellant a further opportunity to obtain legal representation. It was not suggested that there would have been any likelihood of the Legal Aid Commission changing its position and making a grant of legal aid to the appellant. However, it was submitted that, if the trial had been adjourned, even for a day, some lawyer might have been found who was willing to represent the appellant at the trial on a pro bono basis.

59 It was further submitted that, because the appellant had not been given such an opportunity to obtain legal representation, the appellant had not received a fair trial. In particular, it was submitted that, if the appellant had been able to obtain legal representation, his legal representative might have been able to have the material in the statements of the appellant’s son and Mr Manfredi admitted into evidence, and that such evidence would have assisted the appellant’s case.

60 I consider that this ground of appeal should not be upheld.

61 In Dietrich Mason CJ and McHugh J said in their joint judgment at p 315:-

“In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.”

62 In Craig the Court said at pp 183-184, with reference to the passage in Dietrich which I have quoted:-

“The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused’s inability to obtain legal representation being “through no fault on his or her part” was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which has contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that:
“… what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.”
A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused.”

63 The appellant was an indigent accused who had been charged with a serious offence. However, having regard to the history of the proceedings and particularly the letter from the Legal Aid Review Committee of 19 June 2002 and what Mr Humphries told Judge Williams on 4 July 2002, it could not be said that the appellant’s inability to obtain legal representation had occurred through no fault on his part. The fault on the part of the appellant was not a minor incident of misbehaviour or improvidence; on the contrary, it could fairly be said that the appellant “by his gratuitous and unreasonable conduct had been the author of his own misfortune.”

64 As the High Court stated in the passage in the Court’s judgment in Craig which I have quoted, it is not the case that the power to grant a stay or an adjournment does not exist at all, if there has been fault on the part of an indigent accused charged with a serious offence. However in my opinion, in all the circumstances of the case, Judge Finnane was entitled to dismiss the applicant’s complaints and requests, without himself entering into a further consideration of whether he should grant a stay or an adjournment. It is apparent from remarks made by his Honour during the trial that his Honour had perused the documents in the District Court file and was familiar with what had happened in the proceedings prior to the commencement of the trial. On the hearing of this appeal it was conceded by senior counsel for the appellant that Judge Finnane would have seen the documents in the District Court proceedings which this Court has seen. The circumstances of the case, which would have been within the knowledge of Judge Finnane, included the following.

65 The appellant had received two grants of legal aid from the Legal Aid Commission, both of which had been later been cancelled. The appeal against the cancellation of the second grant of legal aid had been refused by the Legal Aid Review Committee, which had concluded, as it stated in its letter of 19 June 2002, that “you” (the appellant) have engaged in a course of conduct to deliberately prevent effective legal representation and manipulate the legal process.” In its letter the Legal Aid Review Committee said that “given the intractable nature of your conduct (it) refuses to reinstate legal aid or provide any further grant of legal aid for the conduct of your case.” On 4 July 2002 Mr Humphries had told Judge Williams that the Legal Aid Commission, for reasons given by Mr Humphries, was not prepared to make any further funding available to the appellant for either a private lawyer or anyone else. Nothing had happened since 4 July 2002 to indicate any possibility that the Legal Aid Commission might change its position not to provide legal aid to the appellant. The advice which was ultimately given by a solicitor from the Legal Aid Commission at the trial was advice given one morning on a pro bono basis, at the express request of the trial judge, on the limited question of whether the appellant should give evidence at the trial.

66 As far as obtaining legal representation on a pro bono basis is concerned, on 4 July 2002 both Mr Humphries and Judge Williams had informed the appellant that he could apply to the New South Wales Bar Association to see if any barrister was prepared to appear for the appellant at the trial on a pro bono basis. Mr Humphries told the court that the appellant had already been referred to the pro bono Committee of the Bar Association and Mr Humphries further undertook to inform the Bar Association that the appellant was requesting legal assistance. I consider that it can be properly inferred that Mr Humphries would have honoured the undertaking he had given to Judge Williams and would have informed the Bar Association.

67 Between 4 July 2002 and 9 September 2002 no barrister had been obtained to appear for the appellant on a pro bono basis. On the hearing of the appeal counsel for the appellant said that he had been informed by the appellant that “he contacted the pro bono scheme but no one replied.” On 9 September there was nothing to indicate that, if a short adjournment were granted, there was any likelihood that a barrister able and willing to appear for the appellant on a pro bono basis could be found.

68 The circumstances of the case also included that two earlier trial dates on 11 March 2002 and 6 May 2002 had been vacated, because of the cancellations of the grants of legal aid to the appellant. The trial date of 9 September 2002 had been fixed on 28 June 2002. This trial date had been confirmed at hearings on 4 July and 30 August and the appellant had been warned that the trial would proceed on 9 September.

69 I have expressed the opinion that Judge Finnane was entitled to dismiss the appellant’s complaints and requests, without himself independently considering whether he should grant a stay or an adjournment. Furthermore, I am of the opinion that, if Judge Finnane had independently considered whether he should grant a stay or an adjournment, and in particular a short adjournment of the kind advocated by counsel for the appellant, it is almost certain that Judge Finnane, taking into account the circumstances I have mentioned, would have refused to grant a stay or an adjournment. In the circumstances it would have been appropriate for his Honour to take that course, that is to refuse to grant a stay or an adjournment.

70 Furthermore, I do not consider that, because Judge Finnane did not grant an adjournment or a stay, the appellant was denied a fair trial.

71 In my opinion, the present case falls within the category of cases referred to by Deane J in Dietrich at pp 335-336:-

“There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented. The most obvious category of case in which this is so is where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available.”

72 During the trial the steps which I have already referred to were taken to lessen the disadvantages to the appellant flowing from his lack of English, his lack of knowledge of trial procedures, and his lack of legal representation. The appellant did receive legal advice from the solicitor from the Legal Aid Commission on the question of whether he should himself give evidence at the trial.

73 Even if Judge Finnane had granted an adjournment or a stay, there would not have been any real likelihood of the appellant being able to obtain legal representation.

74 Even if the appellant had been able to obtain legal representation, there would not have been any real likelihood of Judge Finnane being persuaded by a legal representative of the appellant to come to any different conclusion on an application to have the appellant’s son and Mr Manfredi give evidence by video link. Furthermore, even if the appellant’s son and Mr Manfredi had given evidence by video link, evidence given by them in accordance with their statements would not, for the reasons given by Judge Finnane, have assisted the appellant.

75 In my opinion, the sole ground of appeal against conviction should be rejected and the appellant’s appeal against his conviction should be dismissed.

76 Hulme J: I agree with James J.

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Last Modified: 04/08/2004