Munshizada v R

BELL P: On the afternoon of 4 February 2020, the Court heard an urgent application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) from an interlocutory order made by Fagan J on Friday 31 January 2020, dismissing an application to vacate a murder trial due to commence on Monday 3 February 2020. The applicant for leave to appeal, Mr Munshizada, is the accused.

Consistent with his Honour’s orders, that trial in fact commenced on 3 February 2020 but the jury was not empanelled on that day. Shortly after midday on 3 February 2020, Fagan J, who was also the assigned trial judge, was informed that an application for leave to appeal his orders in relation to the vacation of the trial was to be filed. Shortly thereafter, his Honour delivered written reasons for his orders refusing to vacate the trial: R v Munshizada [2020] NSWSC 30. Those reasons are the subject of a non-publication order.

The ground on which leave was originally sought was that the decision made by the learned trial judge was “unreasonable” and “not open on the evidence”.

Written submissions were received on behalf of the applicant and the Crown prior to the Court convening to hear oral submissions. The applicant’s written submissions included amended grounds as follows:

The seventh of these grounds was not pressed in oral submissions and the eighth ground was simply an omnibus ground which did not add to the previous grounds.

At the conclusion of the hearing, the Court pronounced its order refusing leave to appeal. These are the reasons for those orders.

It is necessary to provide some background both as to the nature of the charge, the procedural history of the matter and the basis of the application for an adjournment.

In short, the applicant has been indicted for the murder of one Michael Davey on 30 March 2016 in Kingswood in the State of New South Wales. On 12 July 2019, the applicant was arraigned and pleaded not guilty to the charge. On the same day his trial, estimated to run for some six weeks, was fixed for hearing commencing on 3 February 2020. At the time the matter was set down for trial, the applicant was represented by Mr Driels of counsel and Zhar Partners, solicitors.

The applicant is also due to stand trial with two co-accused for the murders of Pasquale Barbaro and Mehmet Yilmaz in a trial fixed to commence on 30 March 2020 and to run for at least four months.

On 15 November 2019, by which time the applicant, supported by a grant of legal aid, was represented by Archbold & Co and Mr Stratton SC of counsel, the Court was informed by Mr Stratton, described by the learned trial judge as “an experienced and competent advocate”, that the case was ready to proceed on the fixed date, namely 3 February 2020.

The case was before the Court (both the list judge and Fagan J as the assigned trial judge) on five further occasions in November and December 2019 for mentions and the resolution of various minor interlocutory issues. Fagan J recorded that on the last two of these dates, namely 18 and 20 December 2019, both the Crown and Mr Stratton confirmed that the trial was ready to proceed on the appointed date.

On 21 January 2020, Fagan J’s associate was notified by Archbold & Co that the applicant had withdrawn his instructions to that firm and that “as such [they were] no longer acting for Mr Munshizada in his trial matters”, that is to say both the Davey trial and the Barbaro and Yilmaz trials. The email also noted that withdrawal of instructions extended to counsel who was briefed in the applicant’s matters, namely Mr Stratton in relation to the Davey trial and Mr Trevallion in relation to the Barbaro and Yilmaz trials.

Archbold & Co responsibly requested that the matter be relisted for a mention at Fagan J’s convenience, it being noted that 21 January 2020 fell within the annual Court vacation period. On receipt of this email, the parties were notified that the Davey proceedings would be relisted on Friday 24 January 2020 and the Court enquired of Archbold & Co as to the cause of the withdrawal of instructions. On 22 January 2020, that firm responded by email stating that it was understood that the applicant was of the view that “this matter [was] not ready to proceed to trial”.

The matter came on for mention in due course on 24 January 2020. On that occasion Mr Stratton, again with admirable responsibility given that his instructions had been withdrawn, appeared before Fagan J. The applicant was also present by audio visual link to Parklea Correctional Centre.

Early on in the mention on 24 January 2020, Fagan J enquired of Mr Stratton, without waiving or breaching client privilege, to state his understanding as to the reason for the applicant having terminated his instructions. Mr Stratton responded by stating that the applicant believed:

Mr Stratton said that he had also been instructed by the applicant to make another application which he, Mr Stratton, was not prepared to make and indicated that it was a matter for the applicant to raise with the Court if he saw fit.

Mr Stratton also indicated that his position was that the defence was ready to proceed with the trial subject to two matters which he subsequently raised with the Court in relation to certain evidence which was referred to in the Crown brief or the service of which had been foreshadowed. It suffices for present purposes to note that the subsequent dialogue between Fagan J and counsel for the Crown resolved those two matters. Mr Stratton indicated that, on that basis, if his instructions were renewed, he would be available to act for the applicant in the event the applicant wished to reinstruct him.

After these matters had been clarified, the following exchange took place between the applicant and Fagan J:

Subsequent to that exchange, Fagan J explained to the applicant that:

The applicant pointed out to Fagan J that he did not have a copy of the brief of evidence and said the following:

To this, Fagan J responded:

It may be noted that there was at this point no application for an adjournment or vacation of the proceedings before the Court. Fagan J indicated to all parties that he would be prepared to reconvene the Court in the week commencing 27 January 2020 “if need be at any time, at any hour” in order to “ensure that the trial remains on track”. Mr Stratton, again commendably, commented that he would be prepared to attend court on that occasion “in case I am required”. In those circumstances, Fagan J relisted the matter for Tuesday 28 January 2020 at 10.00am (27 January 2020 being a public holiday). As counsel for the Crown, Mr Morris pointed out, “[t]hat would provide Mr Munshizada an opportunity to consider what your Honour has said over the weekend.”

Fagan J also sought the assistance of Mr Stratton and his solicitors to take steps to have Mr Munshizada provided with physical copies of the brief.

The mention on 24 January 2020 concluded with Fagan J explaining to the applicant that he proposed to relist the matter on the following Tuesday morning and strongly urged him to reconsider what he had done, saying:

When the matter resumed on 28 January 2020, the applicant, again present by audio visual link, was represented by Mr Lange of counsel who had received instructions to make an application to vacate the commencement date of the trial. Mr Lange indicated, on a contingent basis, that he may be able to represent the applicant from 24 February 2020, with the contingencies being that he be released from his brief in another trial (which he anticipated was likely) and that Legal Aid agree to engage him in place of Mr Stratton to appear for the applicant. Mr Lange asked that the matter be stood over until Friday 31 January 2020 with the hope that the two contingencies I have referred to might be clarified by that point in time.

Mr Stratton asked formally to be released and Fagan J acceded to that reasonable request, Mr Stratton not having been reinstructed or indeed having had any contact or communication with the applicant or his family in the period between 24 January and 28 January 2020.

Fagan J then said the following to the applicant:

The proceedings were stood over to 10.00am on Friday 31 January 2020. After some preliminary submissions, the matter was adjourned around midday and, on the resumption, Mr Lange read an affidavit which had been prepared by his instructing solicitor, Mr Chahine, evidently after taking some instructions from the applicant during the adjournment. The affidavit again made it plain that Mr Lange’s availability to appear in the trial was contingent upon it commencing on 24 February 2020, Legal Aid providing a new grant allowing for preparation and agreeing “to fund such expert reports as are required”. In other words, as at 31 January 2020, the availability of Mr Lange to appear for the applicant was contingent and conditional upon any trial being adjourned for three weeks, an adjournment which I note, given the six-week estimate, would have caused the trial to run into the commencement date for the subsequent Barbaro and Yilmaz trials which were slated to commence on 30 March 2020.

In the course of submissions on 31 January 2020, Fagan J asked Mr Lange what the precise application at that point in time was and, in particular, whether it was that the trial be adjourned for three weeks. Mr Lange responded, “No, that it be vacated at present.” It appears from the context that, by that statement, Mr Lange indicated that the application had now become that the trial be wholly vacated so as to give the Court certainty, it being noted that Mr Lange’s own ability to participate in the trial remained contingent as at 31 January 2020 because Legal Aid had not yet indicated whether or not it would support a grant which would see Mr Lange and a brand new firm of solicitors retained to act for the applicant. It was also contingent because there was evidently a potential conflict that Mr Lange was yet to explore.

Paragraph 5 of Mr Chahine’s affidavit was in the following terms:

The Affidavit did not descend to any further detail, including as to when the requests were made or as to whether or not the applicant’s legal team had given reasons as to why what was apparently requested had not been done. No evidence was given or submission made that the failure to undertake or implement any of these requests was incompetent or unreasonable, assuming that the requests were made and clearly conveyed.

After recounting the background of the matter including the procedural chronology, Fagan J set out the principles applicable to an application to vacate the trial. No issue was taken on appeal as to the correctness of his Honour’s identification of relevant principles, and it is convenient, particularly in view of the urgent circumstances of this appeal, to reproduce his Honour’s statement of principles. These are set out below (with emphasis as in his Honour’s judgment):

Kirby P’s observations in Greer v R (1992) 62 A Crim R 442 which had been cited by Deane J in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 were also referred to by Carruthers AJ in R v BK [2000] NSWCCA 4; 110 A Crim R 298 at [31]−[35], which was in turn citied by Fagan J. In [33] of those reasons, Carruthers AJ said as follows:

At [61] of his reasons, Fagan J, whilst stating that he did not consider it necessary to determine whether the applicant’s actions in his application were manipulative in the sense of having an ulterior purpose of simply putting off the trial for its own sake, otherwise adopted Carruthers AJ’s observations at [33] of BK, saying that:

Fagan J considered the nine matters referred to in paragraph 5 of Mr Chahine’s affidavit (see [30] above). His Honour considered that some of these matters were misconceived or self-evidently immaterial whilst others he regarded, correctly in my view, as matters upon which defence counsel would (and it is to be inferred had) exercised his own judgment as to whether or not further enquiries before the trial would be fruitful or better raised during the running of the case without prior notice to the Crown. Judgments as to the forensic utility of such matters are quintessentially within the province and responsibility of counsel retained to represent a party. Fagan J held (at [57]) that “[f]or the accused to have dismissed his counsel on the basis that these detailed instructions were not carried out was unreasonable. He has withdrawn instructions because counsel exercised an independent judgment about the conduct.”

At [59], Fagan J articulated what was, in effect, the corollary of the decision made by the applicant to terminate the services of Mr Stratton in a case such as the present:

It is also relevant to note a number of further considerations referred to by the primary judge as relevant to the exercise of his discretion. These were stated at [62]-[67] of his Honour’s reasons as follows:

The nature of the task confronting Fagan J was described by Barwick CJ in McInnis v The Queen (1979) 143 CLR 575 at 579; [1979] HCA 65, in a passage cited to Fagan J by Mr Lange on behalf of the applicant, as requiring the “need for the most careful weighing of the interests of the accused, of Crown, witnesses, jurors and, generally, of the administration of justice, when an adjournment is sought in order to obtain or to endeavour to obtain the services of counsel for the conduct of the defence”.

Consistently with this observation, in Greer, Kirby P observed (at 449) that:

In the same case, Kirby P also articulated the appropriate approach to be taken by an appellate court to the review of a refusal to grant an adjournment in a criminal trial because of lack of representation. His Honour relevantly observed at 449:

Counsel for the applicant accepted that Fagan J’s decision entailed the exercise of a discretion and the weighing of a number of considerations. That acceptance also had necessary implications for the making of any challenge to that decision. The principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 are plainly applicable. In other words, 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 Fagan J (which, for my part at least, is not the case in any event).

In my opinion, not only was there no error of principle demonstrated in the disposition of the application to vacate the trial but the decision was entirely reasonable in the circumstances. Dietrich was a very different case. Not only did the applicant in the present case have legal representation of an experienced and competent senior counsel but that counsel and his firm of instructing solicitors had been briefed for a significant period of time and indicated to the Court, subject to the two matters that were raised and clarified before Fagan J (see [17] above), that they were in a position to conduct the defence of the trial on the date for which it had been long fixed for hearing.

The present case fell squarely within the observations of Deane J in Dietrich at 335-336 which were cited by Fagan J, namely that:

Further, the material placed before the Court in support of the adjournment application was weak and, in many respects, either misconceived or vague. Nor was it submitted, still less shown, that the failure on the part of the applicant’s legal team to explore those matters was incompetent or warranted the termination of their retainer.

If instructions to make further investigations of the kind referred to by Mr Chahine had in fact been passed on to Mr Stratton at some earlier point in time, his indication to the trial judge as recently as 20 December 2019 that the matter was ready to proceed to trial indicates that a forensic assessment had been made by him and his instructors as to the value and utility of making the further investigations apparently desired by the applicant. These matters of forensic judgment were squarely within the bounds of senior counsel’s responsibility. Fagan J had no basis for concluding that they had not been considered and dealt with competently by counsel, and it is conspicuous that no criticism was made in written submissions on appeal of the manner in which Fagan J analysed and assessed the significance of the matters that were referred to in paragraph 5 of Mr Chahine’s affidavit (see [30] above). The analysis of those matters all fed into Fagan J’s evaluative conclusion that the decision to terminate Mr Stratton’s retainer was unreasonable.

Turning to the specific grounds of appeal sought to be raised (see [4] above). The first can immediately be put to one side. It is clear beyond measure that the primary judge was acutely conscious of this factor and cognisant of the impact lack of representation would have on the applicant. This can be seen both in his interactions with the applicant on the various mentions in January 2020 which are set out both in his Honour’s judgment and in these reasons, together with his extensive citation of authority and his express reference in [70] to “the objective of having the [applicant] legally represented in order to secure fairness of the trial, in accordance with Dietrich v The Queen”.

Whilst it is true that the focus of the reasons was on the reasonableness of the applicant’s conduct in terminating the services of Mr Stratton, it is fanciful to suggest that the primary judge failed to assess the degree to which the fairness of the applicant's trial “might be impinged”. As the Crown submitted, this complaint was really about the weight the primary judge gave to this factor. That was a matter for the experienced judge to assess. His Honour’s observation at [67] that the lack of representation “will require significant intervention from the bench to ensure fairness” also provides an answer to this proposed ground.

Moreover, fairness in this context must essentially mean having the opportunity to be represented. This is what Deane J meant when he used the expression “relevantly fair” in the passage I have extracted above. There is no relevant unfairness where a party has the benefit of legal representation funded by Legal Aid. The applicant was not relevantly “indigent”, to borrow the expression employed by Mason CJ and McHugh J, in respect of legal representation. And, as Kirby P put the matter in Greer at 450, “[t]his is therefore not a case of a failure of a fair legal system to provide the accused facing a serious charge with counsel”.

The second proposed ground of appeal has as its basis an assertion that “a legitimate expectation” was generated by various comments by Fagan J that the trial might be deferred for a short period to permit other counsel to be retained. It was put that the generation of this legitimate expectation in some way impacted on Fagan J’s assessment of the reasonableness of the applicant’s dismissal of his previous legal representatives.

In my opinion, this submission fails at the outset because no relevant legitimate expectation could be said to have been generated by any observations by Fagan J. His Honour was dealing with a fluid situation and, on 28 January 2020, his Honour made it clear that he was “not making any promises by any means that [he would] adjourn the commencement date of the trial”. His Honour also stated that he wouldn’t “contemplate doing so” unless it was confirmed by them that Legal Aid would fund the change of counsel. These statements are inconsistent with any generation of an expectation, legitimate or otherwise, as to what would transpire if the applicant persisted with the termination of Mr Stratton. Indeed, from the outset, the primary judge had made it extremely plain that a decision to terminate Mr Stratton was a matter of the applicant’s own volition with implications and consequences for the trial. On more than one occasion, the applicant indicated that he understood this.

Proposed ground three in fact picks up a statement made by Fagan J at [68] in relation to a submission that had been made by the Crown, not the applicant, in relation to the Crown’s application to adjourn the matter for a few days until 4 February 2020. It was in that context that his Honour made the observation that the prospect of the applicant having stable legal representation was not sufficiently realistic. There are two answers to this proposed ground of appeal. The first is that it really does not bear on the applicant’s application which was for a wholesale vacation of the trial date. Secondly, and perhaps more significantly, his Honour’s concern as to the stability of any legal representation of the applicant was aptly justified in light of the termination not only of Mr Stratton for the purposes of the Davey trial but also the termination of Mr Trevallion’s brief in the Barbaro and Yilmaz trials (see [12] above). Moreover, at first instance, Mr Lange had in essence accepted the very proposition by reference to which he sought to attack the decision of Fagan J in this regard.

In relation to proposed ground four, namely that Fagan J erred in taking into account other impacts of vacation of the trial upon the administration of justice in the absence of evidence, in particular the impact a long adjournment would have upon the approximately 40 witnesses the Crown proposed to call, again, two points should be made. First, it is not put that the taking into account of the effects of an adjournment on the administration of justice including the impact on witnesses was an irrelevant consideration. That it was and is relevant is plain from the passages both from McInnis and Greer which I have set out earlier in these reasons. Secondly, in my opinion, it was more than open to the extremely experienced primary judge to draw inferences as to the impact on a very large number of witnesses that vacation of a matter that had been set down six months earlier would have. Particularly in the urgent circumstances in which the application for a vacation of the proceedings came on, it was entirely appropriate for the primary judge to proceed on the basis that there would be such an impact.

In relation to proposed ground five, namely that his Honour erred in failing to take into account the effect of the applicant’s lack of representation in the present trial upon his subsequent trial, this matter was expressly taken into account in [69] of Fagan J’s reasons. The proposed ground of appeal is expressed in terms of “failure to take into account” a matter. There was no such failure.

Proposed ground six is that his Honour erred in finding the applicant acted unreasonably because he dismissed his previous legal representatives for (on the evidence before his Honour) failing to follow his instructions.

Counsel is not of course bound to follow his or her client’s instructions blindly but must make a conscientious assessment as to whether a course suggested is appropriate and proper in all of the circumstances. Further, as the Crown submitted:

In my opinion, his Honour was justified in reaching the conclusion that the applicant had relevantly acted unreasonably in terminating the retainer, and this was a relevant and important element in his reaching the discretionary decision to which his judgment gave effect.

For the foregoing reasons, the Court refused the application for leave to appeal.

BASTEN JA: On Friday, 31 January 2020, the trial judge, Fagan J, rejected an application made on behalf of Mr Munshizada (the applicant) to vacate the dates fixed for his trial on an indictment containing one count, namely that on 30 March 2016, he did murder Michael Davey. [1] The judge delivered extensive reasons for his decision on Monday, 3 February 2020. An urgent application for leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) was heard by this Court on the afternoon of Tuesday, 4 February 2020. At the conclusion of the hearing, the Court refused the application for leave to appeal.

The procedural background has been fully explained in the judgment of the President: I agree with his reasons for refusing leave to appeal. The following observations are in addition to, rather than by way of qualification of, those reasons. They address two topics, namely (i) the appellate jurisdiction of this Court and (ii) the basis for vacating a trial where the accused is at risk of being unrepresented as a result of withdrawing instructions from his legal representatives.

It was assumed in the present case that the decision of a trial judge as to the appropriate date to commence a criminal trial involved “an interlocutory judgment or order” from which an appeal might be brought, with leave, pursuant to s 5F(3), by an accused person. Nevertheless, the Court must be satisfied that it has jurisdiction to hear the present application. Furthermore, careful attention to the scope of the provision may, in a case where jurisdiction must be accepted, indicate the willingness or otherwise to grant leave in particular circumstances.

In R v Powch [2] this Court considered the scope of the jurisdiction conferred by s 5F(3) where an application had been made challenging the refusal of the trial judge to direct that a prosecution witness be recalled for further cross-examination. The Court concluded that such a ruling on a procedural matter “is not in any sense an interlocutory judgment or order.” [3] The Court noted that the history of the enactment of s 5F demonstrated two purposes, namely (i) the removal of an “anomalous” power to seek review in the supervisory jurisdiction of the Court of Appeal with respect to decisions of the District Court in its criminal jurisdiction, and (ii) to prevent what had been described as a “flood” of applications to the Court of Appeal which “had not been limited to stay of proceedings matters, but also involved applications requiring a District Court judge to reconsider his refusal to allow an accused person to withdraw a plea of guilty, to change the listed trial date, and to seek declarations as to the elements of offences charged in the District Court.” [4] While the section was clearly intended to permit review of a permanent stay (which effectively prevented a prosecution, despite the filing of an indictment), it is less clear that the section was intended to apply to a direction as to the listing of a trial date. Nevertheless, the availability of an application for leave to appeal in such a case was assumed without discussion in Alexandroaia v R. [5]

As Sheller JA observed in Lethlean v R, [6] in a passage repeated by Gleeson CJ in Bozatsis & Spanakakis v R, [7] “the authorities have established no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other.” Gleeson CJ continued:

In some circumstances, the fixing, or variation, of a trial commencement date will clearly involve a ruling which does not fall within the scope of challenge provided by s 5F. It is arguable that some cases may have a sufficient significance for the conduct of the trial, so as to permit a different characterisation. However, in circumstances where an accused has been given a reasonable opportunity to obtain legal representation, there is no legal right to the adjournment of a trial because representation has not been obtained, or maintained. Further, the request for an adjournment (or vacation of the trial commencement date) will be based upon a degree of prediction or speculation as to whether prejudice may result if the trial proceeds as planned. Arguably, a decision adverse to an accused may be varied if an expectation that the conduct of the trial will not be rendered legally unfair is disappointed. As explained by Brennan J in Jago v District Court of New South Wales: [9]

A decision by an accused person to withdraw instructions from counsel may occur before a trial or during a trial. In the latter case, the judge may be asked by the accused to discharge the jury and vacate the hearing. If the judge refuses to take that step, the availability of a challenge by way of application for leave to appeal to this Court would provide a further, perhaps unintended, basis for an adjournment and may result in the discharge of the jury, being the outcome the trial judge expressly refused to countenance. Such circumstances are not entirely hypothetical.

There is a further difficulty in rendering such decisions appealable. On one view, considered further below, the trial judge will be required to consider whether withdrawal of instructions was justified or not. As the present case demonstrates, that assessment is not one which can be carried out with any degree of confidence. If, as in the present case, the accused does not give evidence as to his reasons for withdrawing instructions and, to the extent that his solicitor (not in this case the solicitor at the time instructions were withdrawn) provides an affidavit on information and belief, such material is effectively unchallengeable factually and difficult to assess legally. By contrast, where, as also occurs from time to time, the accused is convicted and appeals on a ground that counsel failed to follow instructions or failed to conduct the defence competently, the facts may be fully explored because the effect of the appeal is to waive lawyer/client privilege. Not infrequently, trial counsel and solicitors give evidence, and even produce written instructions, which contradict the complaints of the appellant. By contrast, in the present case, submissions as to the justification or otherwise for the applicant withdrawing his instructions had an air of abstraction which was inimical to judicial assessment of facts.

If such an issue arises in the future, it may be hoped that both sides of the record give careful attention to the jurisdictional questions. For present purposes, it is sufficient to note the very considerable practical difficulties in even addressing the basis of the present appeal, with the result that where the difficulties identified above eventuate, it will be difficult to grant leave to appeal.

Where the applicant had been granted legal aid and had withdrawn his instructions shortly prior to the commencement of the trial, two further questions arose. The first was to identify where the onus of proof lay in demonstrating lack of fault on the part of the applicant. The second concerned the approach which should be adopted by this Court in addressing an appeal under s 5F. It is appropriate to consider the latter question first in order to ensure that any assessment of the judgment of the trial judge does not exceed the proper bounds of this Court’s authority.

In BWM v R [11] this Court considered an appeal under s 5F by an accused person who had offered a plea of guilty to manslaughter on the basis of diminished responsibility which the prosecutor had originally accepted. When the psychiatrist who had prepared a report supporting that conclusion changed his mind, the prosecutor had sought and been granted leave to withdraw his acceptance of the plea. Leave to appeal was refused on the basis that the decision was correct. However, in the course of delivering the principal reasons, Hunt CJ at CL stated that the appeal under s 5F “is not by way of rehearing.” Rather the court was “a court of error” and had no power to make any finding which could have been made by the trial judge, but could only quash the decision and order further consideration of the matter. [12] Hunt CJ at CL continued:

However, neither of the other members of the Court joined in this analysis. Gleeson CJ stated: [13]

Hidden J also declined to express a concluded view on the matter, but accepted the force of the view that the principles established in House v The King [14] should constrain the court’s interference with the exercise of a discretion by the trial judge. [15]

The decision in the present case was not truly a discretionary judgment in the sense of the exercise of the sentencing discretion in House v The King. It is true that the trial judge was required to undertake an evaluation of the evidence and draw inferences (as is usual), but the choice before him was binary, namely to vacate the trial date or to refuse such an order. In circumstances where the trial judge has heard no oral evidence, and where the transcript of argument, so far as relevant, is available to the appeal court, it might be said that this Court is in no different a position from the trial judge in making evaluative judgments. On the other hand, as noted by Gleeson CJ in BWM, the decision in question was undoubtedly interlocutory and was a ruling as to the practice and procedure of the trial court, arising in circumstances where any appeal is likely to disrupt the orderly administration of criminal justice; these are factors suggesting that this Court should decline to entertain an appeal in the absence of demonstration of more than arguable error.

The thrust of the submissions on behalf of the applicant was that the absence of legal representation would inevitably entail a degree of “unfairness” in the ensuing trial, which the trial judge could not properly prevent or remedy. That proposition, however, involved a misapprehension of the concept of “unfairness”: a trial will not be inherently “unfair”, in the sense that it is not a trial according to law, merely because the accused is unrepresented, if the lack of representation is not due to lack of financial resources (including Legal Aid), or the ability to obtain counsel, but follows from the choice of the accused to withdraw instructions from his legal representatives. Submissions for the applicant in this Court expressly eschewed the proposition that funding was in issue: it was not. Nor was it in issue that counsel had been obtained and was prepared and ready to proceed with the trial; both before and following the withdrawal of instructions, counsel briefed in the matter stated that he was prepared and ready to run the trial. Nor was it in issue that the reason why the applicant was now unrepresented (except for the purposes of the appeal) was that he had withdrawn instructions from counsel and his solicitors. The case proceeded, both before the trial judge and in this Court, as turning on whether the applicant was justified in withdrawing instructions. The test of justification was expressed in terms of whether it was “reasonable” for the applicant to withdraw his instructions, the applicant accepting (at least implicitly) that he bore the burden of justifying his conduct when the objective facts provided no basis for such a conclusion.

The trial judge adopted, as the underlying principle, a statement in the reasons of Mason CJ and McHugh J in Dietrich v The Queen, [16] identifying “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.” The approach of the majority was that:

Dietrich involved an appeal against a conviction following a trial of an unrepresented accused who had sought an adjournment to obtain representation, but where the judge had given no consideration to “exercising his discretion to adjourn the matter on the ground that there was a real likelihood that the applicant would not receive a fair trial.” Further, there has been later exegesis with respect to the qualification as to an accused who “through no fault on his or her part” is unable to obtain legal representation. The standard of the reasonableness of the conduct of the accused was identified in Craig v South Australia, [17] where the Court stated:

Craig was a case in which the trial judge had adjourned the proceedings on the basis that the accused was indigent, was facing prosecution for a serious offence, and had been refused legal aid “through no fault of his own”. The prosecution had sought prerogative relief to quash the decision of the trial judge, which was granted by the Full Court. The High Court reversed that decision, reinstating the order of the trial judge, on the basis that neither jurisdictional error, nor error of law on the face of the record of the trial court had been established. In that, case the “objective facts”, accepted by the trial judge, provided a basis for the stay.

Addressing the merits of the application, three factors are, in my view, determinative. First, the principle in Dietrich (and as explained in Craig) is that a person accused of serious crime should ordinarily be granted an opportunity to obtain legal representation for his or her defence. That opportunity may require, in the case of a person lacking means to fund legal representation, the provision or funding of appropriate representation by the State. Secondly, the basis of such representation is that which usually operates with respect to the conventional relationship between counsel and client in defending criminal proceedings. Forensic decisions as to the nature and scope of the defence case will depend upon counsel’s judgment. (The principles are clearly identified in the authorities, including the professional rules governing the conduct of counsel.) Thirdly, where legal aid has been provided to an indigent accused, there will be a substantial burden on the accused to justify any refusal to avail himself or herself of the proffered opportunity of representation. Where the opportunity is foregone without clear justification, the absence of representation alone will rarely be sufficient to warrant a stay of the trial.

These principles were applied by the trial judge in the following passages:

As to the list of nine matters which were said to constitute the unfulfilled instructions of the applicant, even if they had in truth been instructions which were not followed, the judge declined to accept that they provided justification for refusing to be bound by counsel’s decisions. That reasoning was not shown to be erroneous.

The judge further noted:

Assuming, without deciding, that the decision of the trial judge not to vacate the date for the commencement of the trial was amenable to appeal under s 5F(3), there was no basis for concluding that the trial judge erred in his evaluation of the relevant considerations. Lack of representation lay at the heart of the claim: once the judge was satisfied that the lack of representation was not the result of the lack of a reasonable opportunity to be represented by counsel, the primary ground for vacating the trial date fell away. On that ground alone, the Court was entitled to refuse leave to appeal.

In fact, as the trial judge noted and as identified by the President, there were other factors to be taken into account which might well have warranted refusal of the application even had there been concern as to the conduct of counsel in the preparation of the defence case.

I therefore joined in the orders of the Court.

PAYNE JA: At the conclusion of the hearing on 4 February 2020 the Court made orders refusing leave to appeal. My reasons for joining in those orders are encompassed in the reasons of Bell P and the additional observations of Basten JA with which I agree.