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:
Solicitors:
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)
Solicitor for Public Prosecutions (Crown)
Bilbie Dan Solicitors (Accused Macdonald)
Bob Whyburn Solicitor (Accused Maitland)
File Number(s): 2015/59940
Judgment
Introduction
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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 The first was filed on 21 January 2016 and withdrawn on 23 February 2016.
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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.
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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
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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
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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…
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- AGLC
- Decision restricted [2016] NSWSC 486
- Case
- [2016] NSWSC 486
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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