Croke v R [2020] NSWCCA 8

Croke v R [2020] NSWCCA 8

The only reasonable finding was that a trial commencing on 29 January 2020 with the applicant represented only by his solicitor was likely to be unfair, and the absence of available counsel was not occasioned through any relevant fault of the applicant. Once those matters were established, the trial could proceed only in exceptional circumstances, and the potential difficulty in securing the attendance of the overseas Crown witness and listing difficulties did not meet that standard. The primary judge failed to apply the Dietrich approach, acted on a wrong principle, mistook facts in relevant respects, and reached a decision that was unreasonable or plainly unjust, so leave was granted...

Jurisdiction
Australia
Judgment Date
10 February 2020
Procedural Posture
Criminal Interlocutory Appeal Under S 5 F of the Criminal Appeal Act 1912 / Application for Leave to Appeal and Appeal From District Court Refusals to Vacate the Trial and Grant a Temporary Stay of Proceedings
Outcome
Leave granted; appeal allowed; District Court orders made on 29 and 30 January 2020 set aside; trial stayed up to and including 2 March 2020 subject to interlocutory orders.
Legal Topics
['interlocutory Appeal' 'adjournment of Criminal Trial' 'temporary Stay of Proceedings' 'fair Trial' 'legal Representation of Accused' 'dietrich Principles' 'discretionary Error']
['criminal Law' 'criminal Procedure'] ['interlocutory Appeal' 'adjournment of Criminal Trial' 'temporary Stay of Proceedings' 'fair Trial' 'legal Representation of Accused' 'dietrich Principles' 'discretionary Error']

Case Brief

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Procedural Posture

Criminal Interlocutory Appeal Under S 5 F of the Criminal Appeal Act 1912 / Application for Leave to Appeal and Appeal From District Court Refusals to Vacate the Trial and Grant a Temporary Stay of Proceedings

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from the refusal to adjourn or stay the applicant's criminal trial." 'Whether the trial was likely to be unfair if the applicant was forced on without effective representation by counsel.' 'Whether the absence of counsel was through any relevant fault of the applicant.' 'Whether listing difficulties and difficulties securing an overseas Crown witness constituted exceptional circumstances justifying the trial proceeding without effective representation.']

Ratio Decidendi

The only reasonable finding was that a trial commencing on 29 January 2020 with the applicant represented only by his solicitor was likely to be unfair, and the absence of available counsel was not occasioned through any relevant fault of the applicant. Once those matters were established, the trial could proceed only in exceptional circumstances, and the potential difficulty in securing the attendance of the overseas Crown witness and listing difficulties did not meet that standard. The primary judge failed to apply the Dietrich approach, acted on a wrong principle, mistook facts in relevant respects, and reached a decision that was unreasonable or plainly unjust, so leave was granted...

Court Disposition

Leave granted; appeal allowed; District Court orders made on 29 and 30 January 2020 set aside; trial stayed up to and including 2 March 2020 subject to interlocutory orders.

Orders

  • ['Grant leave to the applicant to appeal from the refusal of Syme DCJ on 29 January 2020 to vacate the trial and the refusal of her Honour on 30 January 2020 to grant a temporary stay of the proceedings.' 'Allow the appeal.' 'Set aside the orders made on 29 and 30 January 2020.' 'Order that the trial of the accused...