Director of Public Prosecutions v Thomas

[2005] VSC 524

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1458 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

v

JOSEPH TERRENCE THOMAS

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Ruling No. 2

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2005
DATE OF RULING:	26 October 2005
CASE MAY BE CITED AS:	DPP v Thomas
MEDIUM NEUTRAL CITATION:	[2005] VSC 524

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Criminal law and procedure – application for adjournment refused.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr N. T. Robinson with Ms L. Taylor	Commonwealth Director of Public Prosecutions
For the Accused	Mr L. Lasry QC with Mr M. Taft	Robert Stary and Associates
For the Commonwealth Attorney-General (by leave)	Mr R.Tracey QC with Dr S. Donaghue	Australian Government Solicitor

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HIS HONOUR:

1. This is an application by defence counsel that the commencement of the jury trial be postponed from the date presently fixed, 14 November 2005, to 28 November 2005.  The basis of the application is stated in an email from Mr Lasry QC to Mr Maidment SC of 21 October 2005, namely that on 18 November 2005 at Guantanamo Bay the first preliminary motions hearing will occur in the proceedings in relation to Mr David Hicks, and Mr Lasry responsibly wishes to fulfil his commitment to be there present as an observer retained in that behalf by the Law Council of Australia.

1. At the directions hearing on 18 August 2005 as appears at page 18, the voir dire in this matter was set down for 19 September 2005 and the jury hearing for 2 November 2005.  At the directions hearing of 1 September 2005 as appears at page 16, those dates were vacated and further dates were fixed, the voir dire to commence on 3 October and the jury trial to commence on 2 November.  Then on 20 October 2005, as appears at page 482, those dates were yet again vacated, and I fixed the balance of the voir dire to commence on 2 November and the jury trial to commence on 14 November.

1. All of those adjournments were ordered by me primarily to meet Mr Lasry’s professional commitments, either by preparation or by way of necessary part-heard appearances elsewhere.  I consider those adjournments were fully justified on those grounds.  I do not wish in any way to deflect from the important and valuable presence of the Law Council of Australia as an observer of the David Hicks preliminary motions hearing at Guantanamo Bay commencing on 18 November 2005, and I certainly do not wish to deflect from that valuable and important presence by causing another observe than Mr Lasry, who is well-versed in that matter, to be sent to that place.  However, the hard fact remains that we have before this Court a trial.  The Court has, if I may say so, leant over backwards to meet the professional situation of the defence, not only, might I add, in respect to dates but also, amongst other things, in respect of seeking to have both defence counsel in this Court without the requirement of security clearances.

1. I think it is inappropriate to adjourn the matter further.  First, the Court has repeatedly sought to meet the needs of counsel.  Second, there are numerous witnesses involved in the jury trial and subpoenae served and other processes have been instituted, including as to overseas witnesses.  Third, the ordinary processes of the Court ought be followed.  There can be a tendency, although I am sure it has not occurred in this case, for trials to be adjourned and that becoming a self-fulfilling prophecy.  As to the 18 November 2005 first preliminary motions hearing to be conducted at Guantanamo Bay, Mr Lasry’s email states “it is anticipated that the hearing will last only for a few days”.  Mr Taft frankly has stated to me that that is as precisely as the estimate of time presently can be formulated.

1. In all the circumstances, I am not prepared to adjourn the matter beyond the third adjourned date;  that is to say, 14 November.