R v Macdonald (No4) - [2016] NSWSC 486

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Macdonald (No4) [2016] NSWSC 486
Hearing dates: 8 April 2016, 13 April 2016, 20 April 2016
Date of orders: 21 April 2016
Decision date: 21 April 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Dismiss the notice of motion filed by Mr Macdonald on 1 April 2016.
(2) Refuse the application for adjournment of the trial.
Catchwords:
CRIMINAL LAW – application for stay of proceedings – Dietrich principles – accused does not meet requirements – application for adjournment in the alternative – balancing of considerations in administration of justice – application refused

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 128

Cases Cited:
Craig v South Australia (1995) 184 CLR 163
Dietrich v The Queen (1992) 177 CLR 292
R v Joyce [2003] NSWCCA 280
R v Marchi, Marchi and Mead (1996) 91 A Crim R 112
R v Yuill (unreported, NSWCCA, 1 November 1995)

Category: Procedural rulings
Parties: Regina
Ian Michael Macdonald (Accused)
Representation:
Counsel:
P Neil SC (Crown) – 8 April 2016 only
AN Williams (Crown) – 13 and 20 April 2016
G Brady SC (20 April 2016 only) with DJA Mackay (Accused Macdonald)
D Jordan SC (Accused Maitland)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Bilbie Dan Solicitors (Accused Macdonald)
Bob Whyburn Solicitor (Accused Maitland)

File Number(s): 2015/59940

Judgment

Introduction

By notice of motion filed in court on 1 April 2016, the accused Ian Macdonald seeks a stay of these proceedings “until such point as the defendant has sufficient financial funding to retain legal representation for his defence”. An application for such a stay is known as a Dietrich application (so named after Dietrich v The Queen (1992) 177 CLR 292). This is the second such application. The first was filed on 21 January 2016 and withdrawn on 23 February 2016.
On 20 April 2016 Mr Brady SC, who appeared with Mr Mackay on behalf of Mr Macdonald, indicated that Mr Macdonald also sought, in the alternative, an adjournment of the trial, and, indeed, of the Dietrich application in light of recent events.
In order to address the Dietrich application and the application for an adjournment, it is necessary to set out what is revealed in the evidence in some detail.

The facts

Mr Macdonald became a Member of the Legislative Council of the New South Wales Parliament on 19 March 1988. In March 2002, while he was a Member of Parliament, he bought, for $730,000, a property in Strathallen Avenue in Northbridge (the Northbridge Property) of which he was sole owner.

Mr Macdonald’s marriage in 2007

In about 2007 Mr Macdonald married Anita Gylseth who was then employed in the New South Wales Public Service. Ms Gylseth has three daughters, one of whom is intellectually handicapped. In 2007 Ms Gylseth sold a property she owned at North Narrabeen for $835,000. The evidence does not reveal the net proceeds of sale. In the same year, the couple purchased a rural property in Orange for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Macdonald (No4)

Details

AGLC: Decision restricted [2016] NSWSC 486
Case: [2016] NSWSC 486
Decision Date: 21 April 2016

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Macdonald, the dispute revolved around the application for a stay of proceedings and an alternative adjournment, filed in the context of criminal proceedings. The case was heard in the High Court of Australia. The central issue before the court was whether the accused's application for a stay of proceedings and an alternative adjournment was justified under the established principles of Dietrich and whether the accused met the necessary requirements for such an application. The court was required to balance the considerations pertinent to the administration of justice, including the accused's right to a fair trial and the public interest in the timely resolution of criminal matters.

The court examined the circumstances of the case to determine if the delay was due to the accused's actions or if there were exceptional circumstances that warranted a stay. The accused's application for a stay was assessed in light of the principles set out in Dietrich, which require a demonstration that the accused has been deprived of their right to a fair trial due to the delay. The court also considered the accused's conduct and the reasons provided for the delay, along with the potential impact on the administration of justice. Upon reviewing these factors, the court found that the accused did not meet the stringent requirements necessary to justify a stay of proceedings.

Consequently, the court dismissed the application for a stay of proceedings, holding that the accused had not demonstrated sufficient grounds to warrant such a remedy. The court also rejected the alternative application for an adjournment, concluding that the balancing of considerations did not favour the accused. The reasoning was grounded in the need to uphold the integrity of the judicial process and the rights of all parties involved. The final orders of the court confirmed the dismissal of both the stay and the alternative adjournment applications.

Orders