R v Hassan
[2013] NSWSC 2034
•21 October 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Hassan [2013] NSWSC 2034 Hearing dates: 21/10/2013 Decision date: 21 October 2013 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Vacate the commencement date of the trial of 28 October 2013.
(2) Fix the trial to commence at 10am on 18 November 2013.
(3) Direct that a s 77 Order issue to ensure that the accused is brought in for trial to commence on 18 November 2013.
(4) Direct that an interpreter in the North Sudanese language be arranged for the course of the trial.
(5) Order that the matter be listed at 10.15am on Friday 25 October 2013, for a report back by the solicitor for the accused with respect to progress of the grant of Legal Aid and retainer of appropriate experts.
(6) Vacate the order made in the Local Court at Burwood on 18 April 2012, which suppressed, until further order, the name of the accused, the deceased, or any one connected with the matter.
(7) Order that the matter be listed in the court list in future under the accused's full name.
Catchwords: CRIMINAL LAW - procedure - application to vacate trial date - where Legal Aid grant has not been secured - where convenient for commencement date to be deferred. Category: Procedural and other rulings Parties: Regina
Yassir Ibrahim Hassan (Accused)Representation: Counsel:
H Baker (Crown)
P Lange (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Aquila Lawyers (Accused)
File Number(s): 2012/122408
EX TEMPORE Judgment
On 17 April 2012 Mariam Henery Yousif was killed, by being stabbed on a large number of occasions. The accused, Yassir Hassan, was arrested late on the evening of 17 April 2012, and has been charged with her murder.
He has been in custody since that time. The accused was first arraigned in this Court in April 2013, having been committed for trial by the Burwood Local Court on 6 March 2013.
At that arraignment the accused pleaded not guilty, and a trial date was fixed for 21 October 2013, for an estimated period of three weeks.
On 29 August 2013, I conducted a directions hearing in the matter, to establish what the real issues were likely to be at trial and the readiness of the matter for trial. On that day, experienced senior counsel appeared for the accused, and informed the court that, firstly, the matter was ready for trial on 21 October 2013; secondly, that the real dispute was confined to a single issue, namely, one of provocation and, thirdly, that the likely estimate of trial was between two and three weeks.
Accordingly, on that day I confirmed the trial date.
It appears that on 2 October 2013, Mr Juweinat, a solicitor from Aquila Lawyers, met the accused at the Long Bay Correctional Centre, and he was asked by the accused as to whether he would be in a position to act for him in his upcoming trial. Of course his capacity to act was dependent upon the grant of Legal Aid being transferred to him.
The matter was placed in the arraignments list on 4 October 2013, because the court had been informed that the accused had terminated the instructions of his previous lawyers. The court was so informed by his previous lawyers. On that date the arraignments judge, Latham J, directed that the trial was to commence, as it had been fixed, on 21 October 2013.
On 8 October 2013, Acquila Lawyers were assigned a grant of Legal Aid, but it was apparently a "start up" grant, which makes no provision for counsel.
As of 4 October 2013, the solicitors whom the accused had recently instructed had not read the brief, nor had they seen the nature of the case against the accused, nor had they had the opportunity of instructing counsel, or taking any steps to ready the matter for hearing.
Subsequently, on 11 October 2013, an application was made to the duty judge, Button J, to vacate the trial. His Honour indicated that he would not do so, but he did defer the commencement of the trial to 28 October 2013, to enable the application to be renewed before me.
This morning, counsel for the accused has made an application for the vacation of the trial date. Counsel has relied upon the fact that it appears, to his instructing solicitor and to himself, that the proper conduct of the defence of the accused involves the need to make enquiries of a number of factual witnesses, the need to satisfy themselves that the transcript of the electronically recorded interview of the accused, upon which the Crown relies, is an accurate one and, finally, that there is a need for two experts to be retained to provide opinions with respect to certain forensic features of items found at the scene of the killing of the deceased.
It is, it needs to be said, unacceptable in this Court for an accused, in circumstances where trial dates have been fixed, and fixed for a substantial period, to make a decision to change their legal representation at a very late stage and expect that the court will automatically accommodate their wishes.
There are a number of obvious reasons why this is unacceptable. The first is it is in the public interest that trials of serious crime take place as promptly as is reasonable, having regard to the availability and resources of the criminal justice system. In particular, when a trial such as this one is fixed for a hearing, that time is no longer available to be used for other trials awaiting hearing. If the time allocated is not used, then other accused awaiting trial will be unnecessarily delayed.
Secondly, it is in the interests of justice generally that trials be held without undue delay. This court has said on many, many occasions that the quality of justice deteriorates the longer the time between the commission of the alleged offence and the trial of the person charged with that offence. The memory of witnesses fade, the capacity of an accused to challenge contemporaneous evidence becomes harder, and the accuracy and reliability of the evidence of witnesses of contemporaneous fact is adversely affected.
Accordingly, it is not in the interests of justice generally to delay the hearing of trials without good reason.
And, thirdly, it is in the particular interests of the accused, who has been in custody since 17 April 2012, who wishes to mount a defence which, if successful, would result in his acquittal of the crime, and his discharge from custody, not to be kept in custody for a moment longer than is necessary.
Pre-trial custody is a necessary part of the justice system but it does involve keeping a person in custody, in respect of whom there is a presumption of innocence, and in respect of whom, until the jury returns a verdict of guilty, remains an innocent person. Accordingly, it is not in the interests of the accused to have his trial delayed a moment longer than is necessary to mount an effective defence.
I need to weigh those matters with the interests of justice, in so far as they require an accused to have a proper opportunity of preparing a defence of substance which might reasonably be available in the particular circumstances of this case.
Counsel for the accused has properly and fairly indicated that the real need for a period of time longer than one week to be available to the accused to prepare for trial, is the need to obtain a particular grant of Legal Aid to enable experts to be retained, and to obtain their expert opinion.
But for that submission, I would not have been prepared to adjourn this case and vacate the trial date at all, because the other matters seem to me to be matters to which attention could be given in the available time.
However, I am informed that although an application was promptly made to the Legal Aid authorities for an extension of the grant of Legal Aid, that application has not yet been able to be dealt with and, necessarily, the retainer of the experts depends upon the appropriate grant of Legal Aid.
Because of the dynamic nature of the court's calendar the court is able to accommodate this trial by commencing it on 18 November 2013. That is about a month away. I am satisfied that a proper balance of all of the matters to which I have paid attention earlier in these remarks can be achieved by vacating the trial commencement date of 28 October 2013, and commencing the trial on 18 November 2013.
However, it is important that there is a degree of monitoring of the readiness of the accused and the Crown for trial, so as to ensure that the matter proceeds at that time.
In all of the circumstances I am not persuaded to vacate the trial entirely, but I will defer the commencement of it, as I have said, to 18 November 2013.
I will make the following formal orders:
(1) I vacate the commencement date of the trial of 28 October 2013.
(2) I fix the trial to commence at 10am on 18 November 2013.
(3) I direct that a s 77 Order issue to ensure that the accused is brought in for trial to commence on 18 November 2013.
(4) I direct that an interpreter in the North Sudanese language be arranged for the course of the trial.
(5) I order that the matter be listed at 10.15am on Friday 25 October 2013, for a report back by the solicitor for the accused with respect to progress of the grant of Legal Aid and retainer of appropriate experts.
(6) I vacate the order made in the Local Court at Burwood on 18 April 2012, which suppressed, until further order, the name of the accused, the deceased, or any one connected with the matter.
(7) I order that the matter be listed in the court list in future under the accused's full name.
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Decision last updated: 29 April 2014
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