R v Chan; R v Jun

[2014] NSWDC 43

District Court

New South Wales

Medium Neutral Citation:	R v Chan; R v Jun [2014] NSWDC 43
Hearing dates:	28 March 2014
Decision date:	28 March 2014
Before:	Berman SC DCJ
Decision:	Application for adjournment granted
Catchwords:	CRIMINAL LAW - Application for adjournment - Need for sentence proceedings to be held jointly with co-offender - Late unavailability of counsel for one offender - Court time wasted - Conduct of counsel and solicitor for one offender referred to appropriate bodies for further investigation
Category:	Principal judgment
Parties:	The Crown Terry Chan Won Jun
Representation:	Counsel: Mr A Parsons - Offender Jun Solicitors: Commonwealth Director of Public Prosecutions Murphy's Law - Offender Chan
File Number(s):	2013/227876 - Chan 2013/16125 - Jun

Judgment

1. HIS HONOUR: On 11 October last year the offenders, Terry Chan and Won Jun, appeared in the District Court when his Honour, the Chief Judge, adjourned their matters to 19 December 2013, the matters to be dealt with together. On 19 December Mr Parsons of counsel appeared for Mr Jun and Mr Thomas of counsel appeared for Mr Chan. For reasons which I do not know and which are probably immaterial in any case the sentence proceedings were adjourned to today, 28 March 2014.

1. The matter was put into my list to be dealt with at 10 o'clock. Yesterday afternoon Mr Thomas telephoned my associate and left a message for her. The effect of that message was that he understood that the matter was listed for sentence at 2 o'clock, and that he could not be present at 10 o'clock because he was part heard in a trial. My associate telephoned Mr Thomas this morning indicating that I would be in a position to proceed at 10 o'clock and expected the matter to proceed then, subject to any application for an adjournment.

1. When I arrived on the bench this morning Mr Wrench, a solicitor, appeared for Mr Chan; Mr Parsons, as before, appeared for Mr Jun. Mr Wrench applied for an adjournment on the basis that Mr Thomas was unavailable, he being the person who had close involvement with the matter. Mr Wrench submitted that in effect justice would not be done were I to force the matter on with Mr Wrench representing Mr Chan. When I enquired of Mr Wrench what he had done to have the matter ready for hearing today, given that he was made aware yesterday that Mr Thomas would not be here at 10 o'clock, Mr Wrench indicated that all he had done was some administrative matters and he had not prepared the matter as an advocate, at least partly because he expected that the matter would be adjourned.   It is apparent that Mr Thomas too has done nothing to have the matter ready to proceed at 10.00 am.

1. At that stage I adjourned the matter for one hour for Mr Wrench to look further at the matter. I indicated that if there was to be a further application for adjournment that could be made when I returned. I should indicate that Mr Wrench submitted that he was not capable of doing justice to Mr Chan's case for a number of reasons including what he said was his inexperience, but perhaps more importantly because he said that he had not been present at all conferences between Mr Chan and Mr Thomas.

1. On my return at 11.30 Mr James QC indicated that he now appeared for Mr Chan. He had come into the matter only moments before. Clearly he is in less of a position to present this matter on Mr Chan's behalf than Mr Wrench is. Mr James made a further application for an adjournment.

1. The position is wholly unsatisfactory for many reasons. The matter was never listed at 2 o'clock today. Mr Thomas's suggestions to my associate that he believed that it was are simply wrong. I will refrain from expressing any opinion as to whether Mr Thomas genuinely believed that the matter was listed for 2 o'clock because that is immaterial to my decision.

1. There are many people awaiting their hearings in the District Court. The criminal lists have expanded enormously of recent times. People are in custody awaiting sentence. People are in custody awaiting trial. Many of those in custody awaiting trial will be acquitted. Those awaiting sentence are held on remand where access to courses, work, rehabilitative programs and the like is much more limited than those available to a sentenced prisoner. It is therefore important that the District Court deals with matters as efficiently and expeditiously as possible. What Mr Thomas and Mr Wrench have done is to prevent that occurring.

1. Mr Parson is, as am I, unable to deal with this matter at 2.00 pm. I should say at this stage that I regard it as important that the matters of Chan and Jun be dealt with together. Too often inconsistent findings of fact are made on sentencing proceedings where co-offenders are dealt with separately even before the same judge. Admissible evidence when sentencing offender A may indicate that offender A is less culpable than offender B, but then different evidence admitted when sentencing offender B indicates precisely the opposite. It is therefore important, where possible, that co-offenders are dealt with during the same sentencing proceedings.

1. I propose to grant Mr James' application for an adjournment and to list the matter for sentence at a date that I will discuss with counsel shortly. However, before concluding these remarks I should indicate that I propose to send a copy of these remarks to the Bar Association and to the Law Society of New South Wales for their investigation as to the conduct of the legal practitioners in this case.

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Decision last updated: 06 May 2014