Stubbs v The Queen
[2017] ACTCA 58
•11 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Stubbs v The Queen |
Citation: | [2017] ACTCA 58 |
Hearing Date: | 1 November 2017 |
DecisionDate: | 11 December 2017 |
Before: | Elkaim and Bromwich JJ, and Robinson AJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – Points and Objections not Taken Below – Appeal against conviction – whether the conduct of the appellant was capable, at law, of making out the offence – whether the appellant received a fair trial. |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 4051 Criminal Code 2002 (ACT) ss 326 and 330 Legal Aid Act 1977 (ACT) s 32A |
Cases Cited: | Perara-Cathcart v R [2017] HCA 9; 341 ALR 535 R v Preddy; R v Slade; R v Dhillon [1996] 3 All ER 481 R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405 |
Parties: | Stephen Raymond Stubbs (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr J Masters and Mr J Larkings (Appellant) Ms M Jones (Respondent) |
| Solicitors John O’Keefe Solicitor (Appellant) Office of the ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 7 of 2017 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 2 March 2017 Case Title: The Queen v Stubbs Court File No: SCC 269 of 2015 |
THE COURT:
Appeal
On 28 November 2016, the appellant pleaded not guilty to 15 counts on an indictment, charging him with dishonestly obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT).
The trial before Burns J and a jury concluded on 15 December 2016. The appellant was acquitted on Count 1 and convicted on each of Counts 2 to 15. He was subsequently sentenced to terms of imprisonment.
By a Notice of Appeal dated 2 March 2017, the appellant appealed against both conviction and sentence. During the hearing of the appeal, the appellant withdrew his appeal against sentence.
Background
On 18 November 2008, Mr Alexander Duffy was arrested and taken into custody. On 19 November 2008, Mr Duffy appeared before the Magistrates Court and applied for bail. He was represented on this occasion by the Legal Aid ACT duty solicitor. Bail was refused.
On 20 November 2008, Mr Duffy applied to Legal Aid ACT for assistance, requesting that the appellant act for him. On or before 26 November 2008, the appellant was advised that Mr Duffy’s application for legal aid had been granted.
At the time of these events, the appellant was a legal practitioner holding a restricted practicing certificate. He was employed by two firms, one of which was Diana Burns Solicitors. The appellant was able to, through this firm, act for clients funded by Legal Aid ACT.
A legal practitioner in receipt of a grant of legal assistance is precluded, by s 32A of the Legal Aid 1977 (ACT), from demanding, accepting or taking payment for the performance of services in respect of which the legally aided person is receiving legal assistance.
Outline of the respective Crown and appellant cases
It is convenient to outline, in summary form, the issues ventilated at trial. However, before doing so it should be recorded that, significantly, the issue which became the major ground of appeal (Ground 4, set out below at [22] – [44]) was not an issue ventilated at trial. The consequence was that the jury were not alerted to the issues encompassed by Ground 4, nor did the trial judge give specific directions on this point. At the hearing of the appeal, counsel for the appellant sought to explain why the issue was not the subject of debate at trial. He also sought to explain why directions or redirections were not sought from the trial judge if, indeed, the issues encapsulated by Ground 4 were true issues and not raised for the first time on appeal.
At a very general level, the Crown case was that the appellant deceived both the mother of the accused person and also Legal Aid ACT to obtain money from both of these sources for the legal services he provided to Mr Duffy.
The Crown alleged that the appellant made his first request for payment from Mrs Duffy, the mother of his client, to provide legal services for her son at one of Mr Duffy’s early court appearances. The appellant approached Mrs Duffy and introduced himself as her son’s lawyer. He told her that her son was not in receipt of legal aid and that she would need to fund his legal expenses. The Crown alleged that the appellant knew that this statement was untrue.
On 1 December 2008, the appellant emailed Legal Aid ACT and stated that Mrs Duffy had instructed him to contact them and enquire whether they were prepared to extend the grant of legal aid for a bail application. Mrs Duffy was never advised by the appellant that her son had been granted legal aid.
On 3 December 2008, the appellant appeared for Mr Duffy for the first time, pursuant to the grant of legal aid.
Between 19 December 2008 and 29 October 2009, Mrs Duffy made eleven money transfers to the appellant’s bank account in payment of her son’s legal fees. The transfers came to a total of $25,620. Mrs Duffy also stated in evidence that, in December 2008, she made one cash payment to the appellant of $5,000 (relating to Count 1, in respect of which the appellant was acquitted).
In relation to the amounts paid to the appellant, Mrs Duffy gave evidence that she was funding her son’s legal representation because she understood that he did not have legal aid. She gave evidence that she had redrawn on her mortgage to pay the appellant.
In cross-examination, it was suggested to Mrs Duffy that the $5,000 cash payment was, in fact, a cash surety for her son’s bail, which she lodged with the ACT Supreme Court. Mrs Duffy denied this. However, the jury found the appellant not guilty of the count in relation to this cash payment (Count 1).
In cross-examination directed to Counts 2 to 15, it was suggested to Mrs Duffy that she was aware from the beginning that her son had a grant of legal assistance, and that she was knowingly “topping up” the grant by paying the appellant for bail applications which Legal Aid ACT refused to fund. It was also suggested to Mrs Duffy that she had a number of her own personal legal concerns for which she received advice from the appellant and for which she was charged a fee. Mrs Duffy denied these propositions.
Mrs Duffy first became aware that her son had been granted legal aid in October 2009. Mrs Duffy was informed of this fact by Mr Hatch, a solicitor who had been appointed by the ACT Law Society to take over the management of the firm Diana Burns Solicitors, the employer of the appellant.
Between 22 May 2009 and 30 October 2009, Legal Aid ACT made three money transfers to the appellant for work done by him pursuant to the grant of aid for Mr Duffy.
Prior to the payments being made, Legal Aid ACT emailed the appellant and questioned Mr Duffy’s continued eligibility for legal aid. Legal Aid ACT had become aware that Mrs Duffy provided a $5,000 surety to secure bail for her son. Their view was that the availability of those financial resources might mean that Mr Duffy would not pass the means test for eligibility for legal aid. In response to these queries, the appellant told Legal Aid ACT that Mrs Duffy provided no financial support to Mr Duffy, that she was not in a position to do so, and that his firm had incurred expenses for representing Mr Duffy for which he had not received any “additional funding”. This was alleged by the Crown to be an untruthful statement. Following this correspondence from the appellant, Mr Duffy’s eligibility for legal aid was confirmed and the appellant was paid by Legal Aid ACT.
The appellant gave evidence at the trial. His evidence was that he had told Mrs Duffy that her son had been granted legal assistance from Legal Aid ACT. He stated that the payments made by Mrs Duffy were for bail applications which Legal Aid ACT had refused to fund, as well as for advice that she had received from him in relation to her own private legal matters. The appellant stated that he understood that it was permissible to receive private payments in relation to a Legal Aid ACT client, so long as the payment was for services which were not covered by the grant, such as a bail application where an extension of aid had been refused. The appellant stated that he was not obliged to tell Legal Aid ACT that he had received additional funds in relation to Mrs Duffy and denied that he had misled Legal Aid ACT in relation to receiving additional funds.
Grounds of appeal on conviction
Some grounds contained in the Notice of Appeal on conviction were not pressed. The remaining grounds are:
4. On the evidence, the conduct of the accused was not capable, at law, of making out the offence.
…
6. The trial was conducted for the most part with 11 jurors.
7. The appellant did not receive a fair trial.
Particulars
(a) The trial judge allowed the trial to continue after the appellant’s barrister withdrew mid-trial.
(b) The appellant was not allowed independent counsel.
(c) The trial was ordered to continue after the appellant had been hospitalised mid-trial.
(d) The right to a fair hearing under the provisions of the Human Rights Act 2004 were breached or not complied with;
(e) The appellant was incompetent counsel.
…
9. The verdict was unsafe and unsatisfactory.
Ground 4
In order to understand this ground of appeal, it is first necessary to set out the statutory provisions from the Criminal Code 2002 (ACT) applicable to the counts. The offence is created by s 326 of the Code as follows:
326 Obtaining property by deception
A person commits an offence (obtaining property by deception) if the person, by deception, dishonestly obtains property belonging to someone else with the intention of permanently depriving the other person of the property.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
Special provision is made concerning what is taken to be property where an electronic transfer of funds is concerned. Section 330 provides:
330 Money transfers
(1)This section applies for this division and for the application of section 313 (Receiving) to this division.
(2)If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by A –
(a) the amount is taken to have been property that belonged to B; and
(b) A is taken to have obtained the property for A with the intention of permanently depriving B of the property.
(3)If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by a third person (C) –
(a) the amount is taken to have been property that belonged to B; and
(b) A is taken to have obtained the property for C with the intention of permanently depriving B of the property.
(4)An amount is transferred from an account (account 1) to another account (account 2) if –
(a) a credit is made to account 2; and
(b) a debit is made to account 1; and
(c) the credit results from the debit or the debit results from the credit.
(5)A person causes an amount to be transferred from an account if the person induces someone else to transfer the amount from the account (whether or not the other person is the account holder).
It is clear that this provision was inserted into the Code to overcome the possible effect of the decision of the House of Lords in R v Preddy; R v Slade; R v Dhillon [1996] 3 All ER 481 (Preddy). Although that case was concerned with the Theft Act 1968 (UK) and the then English Clearing House Automated Payment System, the point decided was that, expressed in terms of s 326 of the Code, the fraudster does not obtain property belonging to the victim through an electronic transfer from a bank account.
The appellant pointed out that all of the counts in the indictment on which the appellant was convicted were framed as:
[Date] [Appellant] by deception dishonestly obtained property, namely a thing in action to the value of [$X], belonging to [either Mrs Duffy or Legal Aid] with the intention of permanently depriving [either Mrs Duffy or Legal Aid] of that property. [underlining added]
The appellant places great weight on the underlined words above. The central plank in the submission is that the Crown alleged and prosecuted a case where the “property” was a thing in action. That case, it was submitted, was an entirely different case and was incompatible with property being, as the appellant’s counsel put it, “the amount” referred to in s 330(2) of the Code. Further, it was submitted that, as a consequence, the trial judge charged the jury on the basis of the property being a thing in action or at least omitted to give proper directions to the jury concerning the issues raised in s 330 of the Code.
The evidence of the 14 electronic transfers was not in dispute. The jury had before them summaries of the transactions under s 50 of the Evidence Act 2011 (ACT). On these facts, the situation described in s 330(2) of the Code was engaged. There was no doubt at trial that Mrs Duffy transferred funds from her bank account to the appellant’s bank account on the 11 relevant occasions. Similarly, there was no dispute at trial that Legal Aid ACT transferred funds from its bank account to an account styled in the name of Diana Burns Solicitors, Business Cheque Account on the three relevant occasions. It was proved at trial that this account was operated by the appellant in his own right. Although the appellant’s Summary of Argument, filed prior to the hearing of the appeal, sought to agitate the ownership of this account, that submission was not persisted with at the hearing of the appeal.
The appellant pointed out that the indictment claimed the property was a “thing in action”. That was a reference to the credit balance held by Legal Aid ACT with the Reserve Bank as its banker. Legal Aid ACT had the right to be paid an amount equal to the credit value in the account it held with the Reserve Bank. The appellant harnessed the reasoning in Preddy to suggest that such a prosecution must inevitably fail for the reasons given in that case. There was no analysis of the Australian banking system as it might apply to these transactions but we will assume, for present purposes, that the result in Preddy would be replicated.
The appellant then developed the submission that, not only did the indictment disclose that the property in question was a thing in action, but the case was prosecuted this way and the trial judge directed the jury accordingly.
The appellant’s Summary of Argument contains references to parts of the trial in an attempt to make this submission good. In opening, the Crown Prosecutor said to the jury:
You may have noticed when it [the indictment] was being read out that there was a strange term in most of the charges, and that term was a “thing in action”… essentially it’s a credit to a bank account, in this case a credit to the accused’s bank account...
In her closing address, the Crown Prosecutor said to the jury:
…a person commits an offence if the person, by deception, dishonestly obtained property belonging to someone else with the intention of permanently depriving the other person of the property. Now, in this case, we have two types of property.
We have the cash, and we have money transfers. At law, both of them are property in this particular offence. Count 1 relates to the cash. All the other offences relate to money transfers…
In his summing up, the trial judge directed the jury:
A number of the charges refer to the property as being a “thing in action”. This is simply a legal term to describe intangible property. In this case that means bank transfers…
Although not reproduced in the appellant’s Summary of Argument, the trial judge added, immediately after the two sentences set out above:
So you don’t need to concern yourself about that because there is no issue that these bank transfers occurred and there is no issue that that constitutes property for the purposes of these charges…
The appellant’s Summary of Argument was met by the respondent’s Summary of Argument, in which the Crown repudiated the contention that it was not relying on s 330 of the Code at trial. The respondent drew attention to the Crown’s case statement, which was filed prior to the trial. That document did not become evidence but it outlined the Crown case. It was filed for the benefit of the Court and the accused. In practice, were the Crown to depart from it without reasonable notice, there would be grounds for complaint to the trial judge. The case statement set out the elements of the offence which the Crown intended to prove. Under the heading “The thing obtained was property”, the case statement provides:
Section 330 identified the money transfer from the account of Legal Aid ACT to the accused’s business account as property for the purposes of section 326 of the Criminal Code 2002.
A corresponding paragraph stated the same matter in respect of the payments made by Mrs Duffy.
A review of the appeal books reveals that the trial as a whole proceeded on the basis that, consistently with the trial judge’s direction to the jury (at [32] – [33], above) the transfers were not in issue. This is confirmed by the openings of both the Crown and the appellant. Significantly, if an accused wishes to open to the jury then he or she is bound by r 4051, which states:
R 4051 Criminal proceedings – defence response to prosecutor’s opening address
If an accused person, or the person’s counsel, makes an opening response to the prosecutor’s opening address in a trial, the response –
(a) must identify the acts, facts, matters and circumstances with which issue is taken in the prosecutor’s opening address and the basis on which issue is taken; and
(b) must not state facts that cannot be supported by evidence to be presented, or that has been presented, at the trial.
Counsel appearing at trial for the appellant elected to open his case to the jury. Counsel told the jury that the central issue for them to determine was the extent of the work done by the appellant and whether it was covered by the grant of legal aid. Counsel said:
So it’s important that you, as you’re listening to the evidence, consider what work was covered by each grant. What was the work that Mr Stubbs was performing from time to time, and who had paid for that work and why they paid for that work. Was certain work covered by a grant? Was certain work not covered by the grant and paid by Mrs Duffy because it was work outside the grant paid for by Mrs Duffy outside the grant so those are questions that you’re going to have to consider and unfortunately that means you paying attention to the detail of a number of transactions in a number of days in court.
As you will appreciate, Mr Duffy was in some fairly significant legal trouble. There was a grant in November 2008 in relation to some portions of his legal trouble, but there were a number of legal proceedings that were, in my submission, outside the grant, including a number of applications for bail. Those are matters that you have to consider whether those matters were, in fact, covered by the grant at all, or whether they were outside the grant.
Counsel did not raise any consideration of a “thing in action” or any reference to the subject matter of s 330. She drew attention only to the “cash payment to Mr Stubbs” (Count 1) which she said “is a matter in dispute”. It is true, as was put on behalf of the appellant, that there was no explicit admission made in the opening by counsel that s 330 applied.
At the hearing of the appeal, there was a deal of interchange between the Court and counsel for the appellant as to why the issue now raised on appeal was not apparently an issue raised at trial.
The explanation given was not straightforward. The appellant’s case on appeal was as follows. It is the indictment and not the case statement which is the starting point. The indictment specifies “things in action” and not s 330. The mere mention of “money transfers” in evidence does not regularise an indictment. To specify a “thing in action” in an indictment is tantamount to saying that s 330 of the Code is not engaged. No case statement can remedy this, especially when the jury did not see that case statement. It is the evidence that counts, assisted by what was said in opening and closing to the jury and the directions provided by the trial judge. There is not a single mention of directions or the engagement of s 330.
In answer to the observation from the Court that the issue was not raised at trial by counsel for the accused, it was submitted by counsel for the appellant that it was not perceived to be engaged. The trial judge was not obliged to give directions on s 330 because that case was not made and the accused did not seek redirections or further directions on the issue for the same reason.
By way of completeness, the Court records that there was no challenge to the indictment and the suggestion, in the appellant’s Summary of Argument, that there had been a presently relevant “issue” with the indictment in a pre-trial hearing, was not persisted with at the hearing of the appeal.
In our view, the specification of “thing in action” as a particular in the indictment in no way created uncertainty as to the allegation which the accused had to meet. The appellant very rationally elected not to contest the efficacy of the transfers into the two bank accounts he operated for his own benefit, such funds being an amount equal to the funds flowing out of bank accounts operated by Mrs Duffy and Legal Aid ACT in those 14 transactions. It may not be technically correct to use the term “thing in action” to describe the mechanism consisting of electronic instructions to and between banks, resulting in a netting off between banks and ultimately with one bank making available a credit to its customer. The effect of s 330 is to “take” this bundle of instructions and results to be property for the purposes of s326.
The trial judge’s summing up to the jury on the issue accords with the issues actually litigated. Further, it is no part of the judge’s task to instruct the jury in relation to the resolution of non-issues: Perara-Cathcart v R [2017] HCA 9; 341 ALR 535 at [66].
The Court therefore rejects ground 4.
Ground 6
On the second day of the trial, after the opening and after a number of witnesses had given evidence for the Crown, a juror did not attend court for medical reasons. The matter was stood down while medical evidence was received. When this evidence came to hand, the trial judge called on counsel for the appellant, who advised that she did not object to the discharge of the juror. The juror was discharged. There was no submission at the hearing of the appeal that the exercise of the trial judge’s discretion miscarried.
The Court therefore rejects this ground.
Ground 7
The appellant claims that he was not given a fair trial and sets out five particulars. Those particulars are interrelated and can be dealt with together.
To understand this ground of appeal, it is necessary to set out the course of the trial.
The trial commenced on 28 November 2017. The appellant was represented by counsel instructed by Mr O’Keefe. As recounted above, the trial lost a juror on the second day. On day four of the trial, counsel for the appellant advised the court that a matter had arisen. After the parties had disclosed matters to the trial judge in chambers, the trial judge noted in Court that the appellant’s counsel had withdrawn because she could not continue to represent the appellant “ethically, based on the instructions that you are being given”. The appellant’s instructing solicitor, Mr O’Keefe, then advised the trial judge that his instructions had been withdrawn by the appellant. Mr O’Keefe was given leave to withdraw. It was at this point that the appellant requested that the trial judge discharge the jury, stating that he would be unable to arrange alternative counsel to represent him and that he did not feel he could represent himself due to his own ill-health.
The trial judge did not accede to that application but was prepared to delay the further hearing of the trial until the following Monday to allow the appellant to obtain legal representation. The trial judge observed that the appellant appeared perfectly capable of giving instructions to lawyers and that an application for an adjournment of the trial on the ground of ill-health had been refused by another judge in the previous week. In response to this, the appellant stated:
Your Honour, I don’t believe I can get further representation. I don’t wish to waste the court’s time so if your Honour is happy that I represent myself from now on then there is no need for an adjournment.
About an hour later, the trial continued before the jury. The trial judge informed the jury that the appellant would be self-represented for the remainder of the trial. Witnesses were called and the appellant gave evidence and was cross-examined.
On the seventh day of the trial, the appellant emailed the trial judge’s associate stating: “Have had to go to Goulburn Hospital please advise I will contact as soon as I am able”. Thereafter, the Court convened a number of times in an attempt to obtain satisfactory medical evidence and explanations as to why the appellant was under medical care. It is not necessary to set out the many steps that were taken. Eventually, a warrant was issued for the arrest of the appellant.
On 11 December 2016, a medical report was emailed to the trial judge’s associate. Relevantly for present purposes, a Dr Whelan stated:
I feel the likely diagnosis is a behavioural disturbance due to psychological stress related to his legal and financial difficulties. After a thorough workup and a period of observation in hospital I find no evidence of ongoing new organic illness.
The Court reconvened on 13 December 2016. By this time, the appellant was in custody. There was no objection from the appellant to the trial resuming. The Crown indicated that the cross-examination was concluded, the appellant indicated that he had nothing to raise in re-examination and the trial continued.
Counsel for the appellant developed his contentions by first drawing attention to s 22 of the Human Rights Act 2004 (ACT). He quoted the following subparagraphs:
S 22 Rights in criminal proceedings
(1)Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
(2)Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:
(a) …
(b) to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her;
(c) …
(d) to be tried in person, and to defend himself or herself personally, or through legal assistance chosen by him or her;
(e) to be told, if he or she does not have legal assistance, about the right to legal assistance chosen by him or her;
(f) to have legal assistance provided to him or her, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance;
(g) to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses …
Counsel for the appellant drew the Court’s attention to (d) and (e) above. Subparagraph (e) has no application to the present case. The appellant did not need to be told of this fact. Subparagraph (d) had application, it was said, because the appellant, firstly, wanted to be represented, even after the initial counsel chosen by him had withdrawn. Secondly, the appellant wished to choose his legal representation. As we understand it, the argument is that the trial judge should have discharged the jury and allowed the appellant to engage legal assistance of his choosing. We cannot accede to this argument.
In this case, the available evidence is that the appellant gave certain instructions to his counsel, who was obliged to withdraw upon the basis that she could not continue with the case for ethical reasons. Thereafter, the appellant withdrew instructions from his solicitor. There is nothing in s 22(2)(d) of the Human Rights Act 2004 (ACT) which adds to the law to be applied in the above circumstances once a trial has commenced. The matter is one of practice and procedure for the trial judge. There have been a number of cases analogous with, or approaching, the above circumstances. The most recent is R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405, where an application for an adjournment for the purposes of obtaining counsel was made during the course of the trial. The Crown, in her submissions on appeal, extracted [54] to [60] from that judgment as setting out the relevant considerations:
[54] These principles were considered by the Court of Criminal Appeal in R v Gilfillan [2003] NSWCCA 102. In that case Buddin J made reference (at [4]) to the strong public interest in ensuring, if at all possible, that a criminal trial which was well advanced proceeded to verdict. His Honour observed that accordingly, an adjournment would not readily be granted in such circumstances. However, he emphasised (at [5]) the desirability that an accused person be legally represented at a trial, particularly if he or she is facing very serious charges. His Honour also referred to the decision in BK v The Queen [2000] NSWCCA 4; (2000) 110 A Crim R 298 where Carruthers AJ emphasised (at [33]; 309) the need for a trial judge to be alive to the possibility that an accused person may withdraw instructions from counsel purely in order to obtain an adjournment.
[55] In the same case Smart AJ made a number of observations in relation to the approach to be taken in circumstances such as the present. Having referred to the decisions in Craig and Dietrich, his Honour said (commencing at [72] :
“[72] Where, as here, a trial has been proceeding for a number of days, and the accused has ceased to have legal representation including where he has withdrawn instructions the matters taken into account may be somewhat broader. They would include the interests of the witnesses, their health, if ill or aged, and their availability.
[73] Unreasonable dispensation of legal representation by an accused during a trial would amount to fault on the part of an accused and usually in such circumstances a trial would not be terminated. Whether an adjournment would be granted would depend on all of the circumstances, for example, fresh legal representation may be able to be obtained within a couple of days, thus enabling the trial to continue.
[74] In applying Craig this Court in DPP v Thomas James Allan (unrep 1 November 1995 per Allen J) observed that the touchstone of the common law was reasonableness and that that applied to the concept of fault.
[75] Circumstances may exist where it is reasonable for an accused to withdraw his instructions even at an advanced stage of the trial. For example, his counsel may be conducting his case in an obviously incompetent fashion or incorrectly disregarding instructions which were not improper or for personal reasons may not feel able to cross-examine a witness adequately. This list is not exhaustive.”
[56] In concluding that error had been established in that particular case, his Honour found that the trial judge had failed to consider the issue of fault or, in other words, had failed to consider whether it was reasonable for the accused to withdraw his instructions.
[57] It is against the background of all of those principles that I come to determine the present application.
[58] It is clear from the authorities to which I have referred that one of the matters I am required to take into account is the issue of fault, i.e. whether it was reasonable for McNamara to withdraw his instructions from Ms Shead. The only material before the Court which touches on that issue is the statement made by Ms Shead and the statements made by McNamara. Mr Waterstreet submitted that I should regard the statements made by Mr McNamara as evidence. They are not evidence. They are unsworn, untested and unsubstantiated assertions. They are deserving of no weight in those circumstances.
[59] On the present application, McNamara bears the onus of proof: BK at [12]; [24]; 305; 308. He has chosen not to give evidence on oath about the circumstances in which he withdrew his instructions from Ms Shead. That is his right. I am therefore left to determine the present application on the remaining evidence which is before me.
[60] Speaking purely hypothetically, it may be one thing for an accused to assert that it is unfair that he be forced to represent himself when the circumstances in which his instructions were withdrawn from counsel were no fault of his own. It will be quite another for an accused to assert unfairness in circumstances where the decision to withdraw instructions was made in a calculated fashion, or without proper cause. The evidence in the present case does not permit me to make findings as to the circumstances in which the accused's instructions were withdrawn. I am not able to determine, in the sense referred to in the authorities, that the present circumstances are not the fault of the accused. Equally, I am not in a position to determine that they are his fault. I must therefore resolve questions of suggested unfairness based on the evidence as it stands but in circumstances where, as I have said, McNamara bears the onus of proof.
As noted at [51] above, the trial judge, appreciative of the desirability of the appellant having legal representation, offered an adjournment of the trial for a short period for the appellant to obtain representation. The appellant did not take up that offer and elected to represent himself.
We cannot see any error in the exercise of the trial judge’s discretion to continue the trial in the circumstances and in the manner in which his Honour did.
We also cannot see any error in the trial judge’s decision to continue the trial after the appellant had been hospitalised mid-trial. The trial judge considered the then available medical evidence before continuing the trial. At that time the appellant made no objection to the trial resuming. Again, this was a matter for the discretion of the trial judge.
The Court therefore rejects ground 7.
Ground 9
The argument on this ground was brief and arose out of two aspects of the case, which were connected to the questions canvassed within Ground 4.
The first aspect was a submission that the appellant could not have been convicted on charges relating to the Legal Aid ACT payments and at the same time been convicted on the charges relating to payments to Mrs Duffy.
Counsel for the appellant submitted that, at all times, the solicitor was entitled to make a claim on Legal Aid ACT in the fashion that he did. He submitted that the charges could only succeed against him if the claim was based on the quantum of work claimed to have been performed being dishonest. Legal Aid ACT could not have withheld payment. The law only stopped him from taking payments from Mrs Duffy. The appellant had done the work and the grant of legal aid was in place. It was a matter of contract.
This submission overlooks the actual case made against the appellant. It was a case where the three payments were obtained by making dishonest communications and omissions to Legal Aid ACT. The procuring of the actual payments is distinct from, although related to, a contractual entitlement to the same sum of money from the same payer.
The second aspect was a submission that, if s 330 was indeed engaged, the trial judge was required to give effective directions to the jury so that they might determine the factual issues arising out of that section in their application to the charges. The failure of the jury to decide those issues was said to have led to unsafe and unsatisfactory verdicts.
The short answer to this aspect is to repeat what was said above. A party to litigation, even criminal litigation, does not have to contest every issue and the jury’s task is only to resolve contested factual issues. Further, there was no doubt that the Crown proved the obtaining of property from Legal Aid ACT and Mrs Duffy. There is also no doubt that, in each case, the appellant caused these amounts to be transferred to him. There was no other explanation proffered in evidence for the transfer of these funds. It may have been that the appellant wished to be paid in cash by Mrs Duffy. That arrangement was inconvenient to Mrs Duffy and she electronically transferred funds instead. That in no way detracts from the proposition that it was the appellant which caused the amounts to be transferred.
It was not shown that the guilty verdicts returned by the jury were unreasonable having regard to the evidence. The Court therefore rejects ground 9.
Conclusion
As all of the grounds pressed at the hearing of the appeal have failed, the appeal must be dismissed.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Elkaim and Bromwich JJ, and Robinson AJ. Associate: Date: 11 December 2017 |
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