R v Bosscher

The appellant, who was self-represented, was convicted of one count of fraud and eight counts of falsifying a record for what the Crown alleged was a scheme involving the appellant and two others to divert cash payments made to the law firm they were employed by. On day 10 of his trial, the appellant informed the trial judge that he had suffered a relapse of his depression and that he was unable to continue with the trial. The trial was adjourned for 12 days to allow the appellant to obtain supporting material. That 12-day delay occurred in the middle of cross-examination of a key witness. The trial judge refused the appellant’s application to discharge the jury. Upon the trial’s resumption, the jury were reminded of passages of the witnesses’ evidence in chief, but not crucial parts of his cross-examination before the adjournment. The Court of Appeal held that these circumstances resulted in a miscarriage of justice. Crucial to the Court’s conclusion included that the effect of the trial judge’s refusal to discharge the jury was that the appellant, after that delay, was required to continue with cross-examination of that witness having suffered a relapse of his depression and while functioning at a reduced capacity, and that this resulted in significant prejudice to the appellant. That prejudice was exacerbated by the trial judge not reminding the jury of any part of the defence case when the trial resumed. The Court held that as a result of these matters, there was a real chance that the jury’s ability to assess that witness’s credibility may have been compromised. Accordingly, the appeal was allowed and a new trial on all counts was ordered.

Flanagan, Boddice and Brown JJA

13 December 2024

Background

After a 28-day jury trial in the District Court, the appellant (who was self-represented) was convicted of one count of fraud to the value of $30,000 or more and eight counts of fraudulently falsifying a record. The appellant and two others, Meehan and Jones, were employed solicitors of a law firm. The Crown case in relation to the fraud count was that there was an agreement or arrangement between the appellant, Meehan, and Jones to divert cash payments made by clients of the firm (which was trust money) away from the firm, resulting in the cash payments being applied to the participants’ own use. [1], [10], [11], [14]–[20], [45].

In relation to the remaining eight counts, the Crown contended that a client of the firm had paid over $500,000 in cash for legal services, which was withheld from the firm pursuant to the agreement or arrangement. The Crown alleged that the appellant directed Meehan to create false costs agreements and invoices in relation to that cash. [34]–[35].

The course of the trial

Meehan was the most significant witness in the trial. His evidence in chief commenced on day 6 and was completed shortly after midday on day 7. The appellant then cross-examined Meehan for the balance of day 7 and into day 8. Towards the end of day 8, the appellant requested an early overnight adjournment and to conclude Meehan’s cross-examination the following day. [47]–[48].

The following day, on day 9, the appellant appeared by telephone and informed the Court that he was unwell. No evidence was heard that day. The following Monday, which was day 10, the appellant appeared and informed the Court that he did not believe he was able to continue with the trial and to adequately defend or represent his interests due to the onset of a depressive episode. [49]–[51]. The trial was adjourned so that the appellant could obtain supporting material. [53].

The following day, the Court received a letter from the appellant’s psychiatrist which opined that the appellant was unable to sufficiently fulfil his role in representing himself due to the appellant’s relapse of depression. [54]. The appellant indicated that he was still awaiting a psychologist report and the trial was adjourned to the following day, 1 November 2023. On that day, which was day 12 of the trial, the appellant was represented by counsel who apprehended that the appellant would seek to apply for the trial judge to discharge the jury. The trial was adjourned to 6 November 2023, and the Court did not sit on 2 or 3 November 2023. [57], [59]–[60], [62].

The trial judge heard the application for the jury to be discharged pursuant to s 60 Jury Act 1995 on 6 November 2023, which was day 13 of the trial. The basis for the discharge application was that because it would have been at least 12 days since the jury last heard evidence, that delay in conjunction with the appellant’s condition would be prejudicial to the appellant. The appellant gave evidence on the voir dire that he made the decision to represent himself because he had not been suffering from severe symptoms of depression at the time he made that decision and he accordingly believed that he would be able to conduct the trial to conclusion, and that he did not apply for Legal Aid because he did not believe he would meet the criteria for funding. He also gave evidence that by Thursday 26 October 2023, his condition had deteriorated to the point at which he was unable to effectively prepare for the trial. [63]–[66]. Unchallenged medical evidence demonstrated that the appellant was not malingering and that his symptoms compromised his ability to prepare and present submissions and questions for cross-examination. [76]–[79], [83]–[85], [87]–[88].

The trial judge referred to a number of factors, including that: the appellant nevertheless remained an experienced criminal law practitioner and even if he was operating at half capacity, he remained at a high level; the remaining witnesses were unlikely to be controversial and the appellant had prepared for those witnesses; the 12-day hiatus was long but nevertheless the trial judge could not identify any real prejudice to the appellant; the delay was due to the appellant’s predicament; the appellant chose to represent himself; and, the appellant knew of his long-standing mental health vulnerability. [91]. The trial judge concluded that the continuation of the trial would not be unfair to the appellant and her Honour accordingly dismissed the application to discharge the jury. [92].

When the trial resumed after a 12-day delay on 7 November 2023, which was day 14, passages of Meehan’s evidence in chief were replayed to the jury. Those passages primarily concerned Meehan’s evidence in relation to the agreement or arrangement, and no cross-examination was replayed. [99]–[101]. There was a further 10 days of evidence before the Crown closed its case, and the appellant addressed the jury on days 25, 26, and 27. [107].

Did the trial judge’s failure to discharge the jury constitute a miscarriage of justice?

Section 60(1) Jury Act 1995 provides:

“If a jury can not agree on a verdict, or the judge considers there are other proper reasons for discharging the jury without giving a verdict, the judge may discharge the jury without giving a verdict.”

The Court of Appeal referred to the relevant question as being whether there has been a miscarriage of justice and noted that it has “long been recognised that adjournments which result in the fragmentation of criminal proceedings are highly undesirable”: Dragojlovic v The Queen (2013) 40 VR 71, 108–109 [169]; R v Hally [1962] Qd R 214, 220. [116]–[118].

In the present case, the 12-day delay occurred while the Crown’s most significant witness, Meehan, was undergoing cross-examination, and Meehan’s credibility was significant for all of the counts. The Court considered that the effect of the trial judge’s refusal to discharge the jury was that the appellant, after that delay, was required to continue with cross-examination of Meehan having suffered a relapse of his depression and while functioning at a reduced capacity. That resulted in significant prejudice. [133]–[134], [136]. Further, the Court held that the trial judge’s reasons for refusing the application did not sufficiently address the effect of the 12-day delay while Meehan was under cross-examination. [140].

The Court also considered it significant that the jury were not reminded of any part of the defence case that had emerged from the cross-examination of Meehan when the trial resumed, and that the prejudice which arose from that delay could not have been addressed by the trial judge reminding the jury of parts of Meehan’s evidence in chief whilst having no reference to significant aspects of the cross-examination. [141]–[142]. Further, in the Court’s view, the fact that the delay occurred in the course of Meehan’s cross-examination and the appellant’s reduced capacity upon the trial’s resumption meant that there was a real chance that the jury’s ability to assess Meehan’s credibility may have been compromised. [146]. For those reasons, the Court held that the trial judge’s refusal to grant the application to discharge the jury had “the capacity for practical injustice” and was “capable of affecting the result of the trial”. [135].

Disposition

As the Court held that the trial judge’s refusal to discharge the jury occasioned a miscarriage of justice, the appeal was allowed with the convictions set aside and a new trial was ordered on all counts. [42], [161].

A Lukacs