R v Karaali (No 4)

[2023] NSWSC 232

Supreme Court

New South Wales

Medium Neutral Citation:	R v Karaali (No 4) [2023] NSWSC 232
Hearing dates:	6 February 2023
Date of orders:	6 February 2023
Decision date:	06 February 2023
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Order at [8]
Catchwords:	CRIMINAL PROCEDURE — trial — scheduled to commence — awaiting defence expert evidence — tenacious efforts in arranging for the expert evidence required for trial — trial adjourned
Category:	Procedural rulings
Parties:	Rex (Crown) Abdul Karaali (Accused)
Representation:	Counsel: P Hogan (Crown) IH Wallach (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) TNL Law (Accused)
File Number(s):	2020/61211

JUDGMENT - revised

1. Mr Karaali's trial is listed to commence with a jury empanelment before me tomorrow, 7 February 2023. The matter has an unfortunately long history. Mr Karaali was arrested in respect of the charge of murder, for which he is facing trial, on or about 25 February 2020, so he has been in custody for very nearly three years, awaiting trial, which, on anyone's understanding of the key performance indicators that the Court applies to the disposition or dispatch of its business in serious criminal trials, is unsatisfactory.

2. Part of the reason for what now can justly be called a delay has been the effect of the pandemic in terms of the disruption of jury trials during 2020 and 2021 in general, and also, when the matter was listed for trial on 25 July 2023, on participants in the trial in particular. For instance, Mr Karaali himself testified positive, forcing some delay, and then I tested positive, quite independently, obviously, forcing an extension of that delay.

3. The matter finally got underway by way of jury empanelment on or about 3 August 2022. However, time was taken up with important pre-trial legal points. My rulings in respect of those matters on 8 August 2022 (R v Karaali (No 2)) necessitated an application by the defence to discharge the jury to enable it the opportunity to obtain expert evidence to counter or explain the Crown’s expert evidence obtained which, I must point out, as I did at the time, was served late. When the jury was discharged and the matter was adjourned and fixed for trial this week, it had been envisaged that it may take weeks or possibly months for the defence to obtain a suitably qualified expert report expressing opinions about the telephone issues in the case. This was for two reasons: (a) such experts are not necessarily thick on the ground; and (b) it was expected, given the pressures the Legal Aid Commission works under, that the necessary specific grant of aid to cover the expert's fees may take some time to obtain. That expectation has been thoroughly borne out by the evidence given by the solicitor for the accused, Ms Ngoc Le, in her affidavit sworn on 4 February 2023.

4. As I have remarked during the course of the discussion this morning, I am satisfied that Ms Le has exercised all due forensic diligence in attempting to obtain the relevant evidence and secure the relevant funding. Indeed, I am satisfied that she has gone above and beyond the call of duty to pursue those matters, given, no doubt, her otherwise busy practice. Unfortunately, however, although a suitable expert was identified as long ago as October 2022, and a provisional quote was forthcoming on 5 December 2022, the requisite grant of legal aid was only made on Friday, 3 February 2023. Even then, only because of Ms Le's tenacity in pursuing the matter, notwithstanding she had been informed by officers of Legal Aid, effectively, "Don't call us. We'll call you.”

5. Given the significance of the telephone evidence, as was discussed in my judgments of 8 August 2022 and 9 August 2022, there is no doubt that now, as then, the defence requires an appropriate opportunity to obtain its own independent expert evidence, and the Crown does not dispute the justice of that claim. While it is very unfortunate that there is to be a further delay, in the circumstances that I have explained, it seems to me to be unavoidable, and I am therefore well satisfied that an adjournment of the trial is in the interests of justice, however one evaluates that concept.

6. The agency who has made the expert, a Dr Watt, available has previously indicated that the expert can turn around a report in seven days, which is also very commendable. I have explained to counsel that if the matter has to be adjourned for a number of weeks, the capacity of the Court to provide a new trial date will be hindered because of the demands of other listed trials on the Court's courtrooms and, of course, available judges. It seems to me that the best approach - and counsel agree - is to keep the matter alive, as it were, by further case management, in the hope - indeed, expectation - that a start can be secured within the next two weeks. If that can be done, then there is no difficulty with the trial proceeding.

7. Although I am reluctant to set up a regime which will result in a series of further delays, I am inclined to accede to the Crown's suggestion that I list the matter for further mention on Monday for case management purposes, in the expectation that a jury can be empanelled on the following Wednesday, 15 February 2023. Although that involves some risk of further administrative entanglement, I am satisfied that that is the best course to adopt in the circumstances.

8. For these reasons, my orders are:

1. Vacate 7 February 2023 for the commencement of the trial.

2. Direct the sheriff to postpone the marshalling of a jury panel for the trial.

3. List the matter for case management directions on Monday, 13 February 2023 before me at 9.30am.

4. Relist the trial to commence on Wednesday, 15 February 2023.

5. Direct that Mr Karaali remain in custody on remand until then and that an order be issued to secure his personal attendance at court on 15 February 2023 unless previously vacated.

6. Excuse his attendance on 13 February 2023.

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Decision last updated: 16 March 2023