DW v R

1. [1]

   THE COURT: This is an urgent application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) from two interlocutory orders made by:

   1. (1)

      Deputy Chief Judge Hanley SC on 7 April 2026; and

   2. (2)

      Acting Judge King SC on 28 April 2026.

2. [2]

   This application was heard by this Court on an urgent basis. At the conclusion of the hearing the Court made the following orders:

   1. (1)

      Reject the tender of the evidence contained in MFI 1 as it was not evidence before Hanley DCJ or King ADCJ;

   2. (2)

      Leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) is refused.

   3. (3)

      Reasons reserved.

   4. (4)

      Reasons to be published only to the parties and the JIRS restricted database until the completion of DW’s trial.

   5. (5)

      Crown directed to the notify the associate to Payne JA by email when the current trial has been completed.

3. [3]

   These are the reasons of the Court for making those orders.

Procedural history

1. [4]

   The applicant is in custody serving sentences for unrelated sexual offences. He is first eligible for parole in 2031.

2. [5]

   In relation to the present alleged offending, the applicant was arraigned on an indictment containing 25 counts. The trial commenced on 28 April 2026. The counts on the indictment relate to alleged sexual offending against a child over a period of approximately six years.

3. [6]

   The trial which commenced on 28 April 2026 was the fourth separate trial listing of the proceedings. The matter had previously been listed for trial on 31 July 2023, 27 May 2024, and 2 June 2025.

4. [7]

   The chronology of relevant events relating to the present case was as follows:

   1. (1)

      The applicant was charged on 11 January 2022.

   2. (2)

      The matter was first mentioned on 28 January 2022.

   3. (3)

      The applicant was first arraigned on 19 January 2023, and the matter was first listed for trial on 31 July 2023.

   4. (4)

      On 11 May 2023, the trial listed for 31 July 2023 was vacated, due to an application by the defence to vacate, due to original counsel briefed for DW becoming unavailable.

   5. (5)

      On 28 March 2024, at a readiness hearing before Bright DCJ, prior to the second trial listing in 2024, the accused was self-represented and had dismissed his lawyers.

   6. (6)

      On 11 April 2024, at another readiness hearing before Bright DCJ, the accused’s lawyer was granted leave to withdraw from the matter.

   7. (7)

      On 24 April 2024, before D Wilson DCJ, the accused (appearing self-represented) applied to vacate the second trial listing, which the Crown opposed.

   8. (8)

      At a further readiness hearing on 2 May 2024, the accused was represented by both solicitor and counsel who foreshadowed a further application to vacate.

   9. (9)

      On 20 May 2024, before D Wilson DCJ, the Crown sought and was granted an adjournment of the second trial listing in anticipation of changes to the indictment.

   10. (10)

       On 31 May 2024 the matter was set down for trial on 2 June 2025.

   11. (11)

       At a further mention date on 5 November 2024, the applicant appeared unrepresented, having terminated the services of his legal representatives.

   12. (12)

       In April 2025, the applicant retained new lawyers funded by a grant of Legal Aid (who remained in this matter until March 2026) who, on 23 May 2025, before Hanley DCJ, successfully applied to vacate the third trial listing so that DW could be properly represented.

   13. (13)

       On 3 March 2026, at a mention before Hanley DCJ, DW noted that he was now self-represented, as he had dismissed his lawyers, and was applying to vacate the fourth trial listing (the present trial).

5. [8]

   On 7 April 2026, a notice of motion seeking to vacate the fourth trial listing was heard before Deputy Chief Judge Hanley. Hanley SC DCJ dismissed the application and made orders directing the applicant’s trial to commence on 28 April 2026.

6. [9]

   On 28 April 2026, prior to the jury empanelment on Day 1 of the District Court trial, another adjournment application brought by DW was heard by Acting Judge King. King SC ADCJ delivered an ex tempore judgment refusing to adjourn the trial.

Judgment of Hanley SC DCJ

1. [10]

   The proceedings before Hanley DCJ commenced with his Honour noting that he had received documents from the accused, but no submissions. His Honour asked the accused what the basis was for his request for the trial to be vacated. There was an exchange as follows:

2. [11]

   DW then stated “[t]here’ll be lots of evidence, your Honour, once I can get a chance to send the subpoenas off but Vanessa [apparently a reference to one of DW’s former lawyers] didn’t send off--”. His Honour told the accused that there were no subpoenas outstanding to his Honour’s knowledge.

3. [12]

   His Honour said:

4. [13]

   Hanley DCJ raised with DW a concern that the applicant had sacked previous legal representation. In response, DW said that the lawyers did not obtain material which they did not believe to be relevant and did not spend “excessive time that [the applicant needs]”. DW repeated his complaint about Corrective Services NSW not facilitating the applicant’s access to material:

5. [14]

   The Crown explained to his Honour that the applicant had asked the Crown to file a summons in the Supreme Court against Corrective Services NSW on his behalf. The Crown indicated that it “[could not] act as his agent in unrelated legal proceedings”.

6. [15]

   The applicant stated that “the condition of them being a lawyer” was that he had “said the only reason that they will be representing me at trial was if they could spend extensive time through the materials and that with me. They didn’t do that”. The applicant reiterated his submission that to effectively access the material, he needed an in-cell device.

7. [16]

   The applicant stated that he “still [hadn’t] had the original court case brief”, and, “I had a second lawyer just come in and do whatever he wanted and now I’m simply trying to fight that matter alone.” The Crown committed to, “for abundant caution”, serving all the material on the applicant again that week. Hanley SC DCJ said to DW:

8. [17]

   His Honour received in evidence a report of a Dr Elliott, to which we will later refer. His Honour dismissed the Notice of Motion.

Judgment of King SC ADCJ

1. [18]

   On 28 April 2026, the accused again represented himself before King ADCJ. The listing on that day was for the pretrial hearing about a tendency notice. Despite being invited by King ADCJ to elect a judge alone trial, DW insisted on a jury trial, as was his right.

2. [19]

   DW then indicated that he wished to make another application to vacate the trial. It was common ground that three teams of legal representatives had been retained by DW in relation to this matter and that each of the three teams had been dismissed.

3. [20]

   Correspondence between the ODPP and the Associate to Judge Hanley was tendered by the Crown and admitted without objection. That correspondence concerned, inter alia, whether Legal Aid NSW or the Justice Advocacy Service were at that time providing any assistance or support to the applicant. Legal Aid advised that they had no open criminal matters for the accused and were not otherwise assisting him. The Justice Advocacy Service (which is a disability advocacy service) were no longer providing assistance.

4. [21]

   The Crown explained that briefs of evidence had been served on DW’s previous legal representatives in 2023, the trial had been vacated in 2023, 2024, and 2025, and the Crown re-served the entire brief on the applicant on 19 March 2026. The applicant only became unrepresented (again) in early March 2026.

5. [22]

   After a short adjournment, King SC ADCJ permitted the accused to address the court at length. What he said is recorded over eight pages. The applicant’s complaints were wide ranging. Doing the best we can to distil the essence of those complaints they were:

   1. (1)

      “I’ve tried to seek lawyers in the past to help me read and understand my material because I have trouble…”;

   2. (2)

      “I’ve had no safe access” to material;

   3. (3)

      I require access to a computer in custody to view the brief materials;

   4. (4)

      I have “gathered a lot of material”, but need to subpoena a lot of material in relation to “mental health and [other] issues”;

   5. (5)

      “I’m still trying to seek the ODPP previous lawyers for all material from my previous brief and my previous case that I haven’t had a chance to go through extensively. It’s why the first lawyer removed himself. He did send me a point out of a couple of good points or forms that should’ve been raised in my trial. But the lawyers that ran it - I burnt out...”

   6. (6)

      the report of Dr Elliott (which was also before King ADCJ) was incorrect and DW did, in fact “have a lot of history” of mental health issues;

   7. (7)

      the tendency notice, was “prejudicial and I’ve had trouble being understand and being able to speak to a lawyer. First, I wanted them to read it. There’s a lot of words in there. I can’t understand it and I’ve had trouble trusting lawyers, as I’ve written to the courts, where I feel like I was put down only because I have reached out extensively. And as I will show my lists I’ve written down and typed out - a couple of them of my letters to a lot of organizations. There has been one, Justice Action, that has helped me since 2018. It’s the only agency that has kept in touch and helped pointing me, trying to re-defer me with Legal Aid for little bits of help because when I said to them there used to be a branch called prisoner legal services, they no longer operate no more”;

   8. (8)

      he wanted pain medication, and “had a couple of lawyers write them” and deal with “a Centrelink issue of debts”;

   9. (9)

      “[i]n this application to vacate I just seek it to be transferred instead of being vacated”, to the Supreme Court.

6. [23]

   In response, the Crown submitted:

   1. (1)

      the Crown had made inquiries of the Supreme Court Registry, which confirmed that there was “nothing on foot” in relation to the applicant other than a technical mention;

   2. (2)

      the Crown had indicated to the applicant that it could not advocate for him or institute proceedings on his behalf;

   3. (3)

      that Dr Elliott’s report on the applicant includes the conclusion that there may be an available Asperger syndrome diagnosis, but that there is also a pattern of the accused pleading various mental conditions and disability for various purposes of secondary gain, and that Dr Elliott has diagnosed a personality disorder rather than mental illness. The Crown noted that issues of fitness had not arisen, and the applicant had communicated at a high level in generally understanding the principles raised;

   4. (4)

      “the accused has had years of opportunities to deal with the issues in question”;

   5. (5)

      it was apparent that “the accused has a fixation with being served with the entire brief of evidence from the two trials where he was convicted”; and

   6. (6)

      the “grounds pleaded are part of a broader longstanding pattern of deliberate delay. The accused has voluntarily sacked competent counsel and competent solicitors repeatedly against the urgings of various judges, and the matter should proceed.”

7. [24]

   King SC ADCJ invited submissions from the applicant in reply. The applicant reiterated his submission that his previous lawyers “did promise to help extensively with me” and they did not do so, that he was trying to get a copy of a recording of his meeting with Dr Elliott to prove that he “wasn’t abusive to” Dr Elliott, and that the applicant wanted to access audio recordings of calls he had made when he was in custody and Facebook messages, including by means of subpoena.

8. [25]

   His Honour ruled as follows:

Application for leave to appeal

1. [26]

   On 1 May 2026, the applicant filed an application for leave to appeal to this Court under s 5F of the Criminal Appeal Act. The subject matter of the interlocutory appeal was the decisions of Hanley DCJ and King ADCJ refusing to vacate the fourth trial date.

2. [27]

   Doing the best we can to attempt to summarise the applicant’s complaints they appear to be:

   1. (1)

      He suffers from mental health issues and/or disabilities including development delay, cognitive impairments;

   2. (2)

      Being in custody, he has been unfairly “blocked” from obtaining legal advice and denied opportunities safely to view the material in the brief;

   3. (3)

      Being in custody, he has been unfairly “blocked” from contacting the courts, and many other organisations in the legal system;

   4. (4)

      Being in custody, he has been unfairly “blocked” from obtaining typing, stationery and assistance with court forms;

   5. (5)

      He has been disadvantaged by not receiving replies from various courts he has written to and has not been able to commence Supreme Court civil action against Corrective Services NSW.

3. [28]

   Doing the best we can with the applicant’s proposed grounds of appeal they appear to be:

   1. (1)

      He has been denied a right to a fair trial;

   2. (2)

      He has been denied a right to be safely prepare his appeal;

   3. (3)

      He has been denied adequate medical treatments for his various mental health and physical challenges.

4. [29]

   The applicant relied upon three cases: Patsalis v State of NSW (2012) 81 NSWLR 742; [2012] NSWCA 307, Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, and “Commissioner of Corrective Services NSW v Hamzy [NSWCA] 2024 or 2025 Appeal of 2024”.

Consideration

1. [30]

   In Munshizada v R [2020] NSWCCA 9, Bell P stated at [41] that the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 are plainly applicable to cases of this kind under s 5F of the Criminal Appeal Act. For the exercise of discretion to be successfully challenged, it is necessary for the applicant to demonstrate some error of principle or fact or that the exercise of the discretion was outside the bounds of what could fairly be considered reasonable. It would not be sufficient to justify appellate interference that this Court would have exercised the discretion differently to the manner in which it was exercised by Hanley DCJ or King ADCJ.

2. [31]

   At the hearing in this Court, the applicant sought to tender approximately 140 pages of material. To the extent that this material contained submissions we have taken them into account. The applicant raises, as best as we can discern, essentially the same complaints as those described at [27] and [28] above.

3. [32]

   In so far as the applicant sought to tender a vast swathe of evidence not before Hanley SC DCJ and King SC ADCJ, we rejected the tender. Shortly put, in a case where the applicant needs to demonstrate some error of principle or fact or that the exercise of the discretion was outside the bounds of what could fairly be considered reasonable, it would be a rare case where evidence not before the primary decision maker was admissible. This is not such a case. Tight controls must be placed on the conduct of appeals under s 5F of the Criminal Appeal Act, lest fragmentation of criminal proceedings be encouraged by allowing a “trial within a trial”. No circumstances were shown here warranting admission of evidence not before the primary decision makers.

4. [33]

   It is undoubtedly correct that 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 the absence of exceptional circumstances, should adjourn, postpone or stay the trial in such a case until legal representation is available: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57.

5. [34]

   However, in Dietrich, Deane J explained an important qualification to this principle (at 335, 337):

6. [35]

   The reference to the decision in Greer is to Greer v R (1992) 62 A Crim R 442, where Kirby P observed in relation to an appeal which alleged that the trial judge erred in rejecting multiple adjournment applications (at 449):

7. [36]

   This is a case which falls within what was contemplated by Kirby P in Greer and Deane J in Dietrich and applied consistently since, being a case “where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available”. DW has dismissed three sets of legal representatives. The applicant has not provided a coherent or reasonable explanation for why he did so.

8. [37]

   While the applicant has alleged mental ill health and intellectual disability issues, at neither of the hearings of his adjournment applications did he lead evidence contradicting the conclusions of the medical report by Dr Elliott, which was also before this Court, which included conclusions that the applicant was embellishing upon earlier diagnoses and revolving through various lists of mental health diagnoses with the hope of obtaining secondary gains.

9. [38]

   Although the applicant has made repeated assertions that he had not received documents relevant to his upcoming trial, it appears clear that he has, in fact, been provided with all documents in the Crown brief.

10. [39]

    As to the applicant’s complaints about Corrective Services NSW, one of the cases upon which DW relies, Commissioner of Corrective Services (NSW) v Hamzy [2024] NSWCA 240 is apposite. There the Court of Appeal (per Bell CJ, Payne and Stern JJA agreeing) noted that “it is no part of the role or function of this Court to second-guess the Commissioner’s considerable and unchallenged expertise about security within the gaol.” The Court confirmed a self-represented inmate preparing for trial is not entitled to “be relieved of all impediment in order to have effective access to the courts and a fair trial”:

Conclusion

1. [40]

   This was the fourth occasion the matter had been listed for trial. It related to serious alleged offending. DW has dismissed three sets of legal representatives and has not provided a coherent or reasonable explanation for why he did so. This is a case “where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available”. The complainant, who was a child at the time most of the offences were allegedly committed, has a legitimate interest in the timely disposition of the matter. It is in the interest of the community for there to be prompt disposal of charges of criminal offences, particularly where the accused person is in custody and, especially where, as here, the alleged offence is a serious one. No error has been shown in the decisions of Hanley DCJ and King ADCJ to refuse an adjournment of the trial. For these reasons, leave to appeal under s 5F of the Criminal Appeal Act was refused.

2. [41]

   As the trial is ongoing these reasons will be published initially only to the parties and on the JIRS restricted database. The Crown is directed to notify the associate to Payne JA when the trial has been completed.