Bowman, R. v

Where expert evidence is proposed on a criminal appeal, counsel should place an advice on evidence before the Registrar before the hearing and seek an extension of the representation order. The advice should identify each proposed expert and the nature of the anticipated evidence. If funding is refused, directions may be sought from the court.

A retrospective extension remains possible, but witnesses must be told that, without an extension, they attend pro bono or under other funding and may not be paid by a later order.

Following dismissal of the appellant’s substantive criminal appeal, counsel applied for retrospective extensions of the representation order. The application concerned reports, conferences and attendance by several expert witnesses, attendance by a witness at an aborted hearing, and work amending the notice of appeal to address another count on the indictment.

The Crown was not represented. The central issue was which costs had been reasonably and properly incurred for the appeal, and the procedure that should govern applications for publicly funded expert evidence in future.

1. Application granted in substantial part. The court retrospectively extended the representation order for the preparation of reports and attendance by Professors Milroy and Crane; attendance and one conference each for Professors Carey, Lawler, Hunt and Vernezzis; Professor Conway’s report, conference and attendance; and Mr MacDonald’s attendance at the aborted hearing.
2. The remaining claimed costs for the experts and the amount claimed by Mr MacDonald were directed to be assessed by a costs judge. The court also accepted that it had been a necessary precaution to amend the notice of appeal so that, if the appeal had succeeded, the safety of convictions on the other counts could have been argued.
3. Professor Conway’s evidence was not received and did not assist the appeal. Nevertheless, it was proper to instruct him because counsel could not reasonably ignore R and T v G when preparing the appeal.
4. Future procedure. Counsel has a duty, before the appeal hearing, to provide the Registrar with an advice on evidence and an application to extend the representation order. The advice must precisely identify the proposed expert and the nature of the anticipated evidence. A refusal by the Registrar may be addressed by an application for directions.
5. If no extension is obtained, the witness must be clearly informed that attendance will be pro bono or funded otherwise, and that the court may decline a later retrospective order. Although the court made retrospective orders in this case, it described the earlier procedure as unsatisfactory and directed that the stated practice be followed in future.

• Court of Appeal (Criminal Division) In this post-appeal costs application, the court extended the representation order and directed assessment of specified costs. The main judgment in the appeal had dismissed the appeal, but its citation is not stated in the judgment.