R v Macdonald; R v Maitland (No 1)
[2016] NSWSC 1940
•01 March 2016
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Macdonald; R v Maitland (No 1) [2016] NSWSC 1940 Hearing dates: 1 March 2016 Decision date: 01 March 2016 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Trial date vacated
Catchwords: PROCEDURAL – adjournment due to lack of legal representation
Cases Cited: Dietrich v The Queen (1992) 177 CLR 292
Category: Procedural rulings Parties: Regina
John William Maitland
Ian Michael MacdonaldRepresentation: Counsel:
Solicitors:
P Neil SC/P English (Crown)
N Dan (Sol) (Macdonald)
Bob Whyburn (Sol) (Maitland)
Solicitor for Public Prosecutions (Crown)
Bilbie Dan Solicitor (Macdonald)
Bob Whyburn (Maitland)
File Number(s): 2015/59990; 2015/59940
Judgment: EX TEMPORE
Introduction
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In this matter there has been an application to vacate the trial date by both accused persons. Last May Johnson J in the arraignments list listed this matter for trial to commence on 14 March 2016. Notwithstanding that very considerable lead time, neither of the accused has been able to arrange legal representation for that date.
The accused Macdonald
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In the case of Mr Macdonald, he made an application under Dietrich (Dietrich v The Queen (1992) 177 CLR 292) for a permanent stay but when the day for the hearing of the motion came, his counsel was instructed to withdraw that notice of motion. In the meantime, Mr Dan, his instructing solicitor, has sworn an affidavit to the effect that attempts are still being made to obtain funding for Mr Macdonald's legal representation from the Premier and the Attorney General.
The accused Maitland
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In the case of Mr Maitland, he has, according to the affidavits of his solicitor Mr Whyburn, a policy of directors and officers insurance provided by Chubb Insurance which apparently covers legal representation. However, notwithstanding several communications between Mr Whyburn and Chubb Insurance, the funds necessary to pay legal fees for counsel and Mr Whyburn have not been forthcoming. Notwithstanding that, it appears that Chubb has not declined indemnity at any time in relation to the claim. This is most unsatisfactory and is a matter which needs to be resolved with Chubb as soon as possible in order that Mr Maitland can be represented at any trial. I note that no Dietrich application has been made on his behalf and would indeed be unlikely to succeed if he had insurance. However, there will come a time where such application will need to be made if any further stay or adjournment is granted.
Whether the trial date ought be vacated
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Mr Neil SC who appears with Mr English on behalf of the Crown, has emphasised the length of time within since this trial was set down and the amount of notice which both accused have had of the trial date. Notwithstanding his submissions, I am satisfied that it is in the interests of justice and necessary to preserve the fairness of the trial, in particular to Mr Maitland, that the trial date of 14 March 2016 be vacated. I will endeavour, subject to hearing further from counsel, to fix the earliest possible trial date thereafter within which I reasonably apprehend that the accused can either arrange counsel or prepare themselves to appear on their own behalf which seems to be a scenario which must be contemplated at least by Mr Macdonald. Accordingly, I make the following order:
Order:
(1) Vacate the trial of 14 March 2016 in this matter.
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Amendments
30 March 2023 - Publication restriction removed – judgment republished
Decision last updated: 30 March 2023
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