R v Medich (No 5)

[2016] NSWSC 967

Supreme Court

New South Wales

Medium Neutral Citation:	R v Medich (No 5) [2016] NSWSC 967
Hearing dates:	11 July 2016
Date of orders:	11 July 2016
Decision date:	12 July 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The application for the adjournment of the trial until 24 August 2016 is refused.  2. The trial is adjourned until Monday 25 July 2016.
Catchwords:	CRIMINAL LAW – Practice and Procedure – Application by accused for adjournment of trial – Accused charged with murder – Where alleged offence took place almost 7 years ago – Application brought on the basis of the availability of particular counsel and on the basis of a late disclosure of relevant material by the Crown – No evidence before the Court as to the availability of other counsel – Where Crown conceded that the accused was entitled to a short adjournment to allow consideration of material recently served – Lengthy procedural history where accused’s trial was originally listed to take place in August 2014 – Relevant discretionary considerations – Application refused – Adjournment of 2 weeks granted
Legislation Cited:	Criminal Appeal Act 1912 (NSW)
Cases Cited:	Lee v The Queen [2014] HCA 20
Category:	Procedural and other rulings
Parties:	Regina – Crown Ronald Edward Medich – Accused
Representation:	Counsel: Ms G O’Rourke SC / Ms S Harris – Crown   Solicitors: Director of Public Prosecutions – Crown
File Number(s):	2010/356916
Publication restriction:	Nil

Judgment - ex tempore (revised)

1. The trial of Ronald Edward Medich, to whom I will refer as the accused, was listed to commence before me on Monday, 11 July 2016. The estimate of the length of the trial is between three and four months. At the commencement of the proceedings on 11 July Mr Lawrence of counsel announced an appearance on behalf of the accused but indicated that his retainer was limited to making an application that the trial be adjourned for a period of six weeks, until 24 August 2016. That application was opposed by the Crown. At the conclusion of hearing argument in relation to the application, I refused it, although I determined that the proceedings should be adjourned for a period of two weeks until 25 July 2016.

2. Upon reaching that conclusion I indicated that I proposed to empanel a jury, to give the jury some preliminary directions and to then direct them that they were to return for the commencement of the trial proper, as it were, on 25 July. It was indicated by Mr Lawrence that the accused proposed to bring an appeal against my decision to refuse his application pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). I indicated that I would give the reasons for my decision on 12 July 2016. Those reasons now follow.

3. It should be noted at the outset that the accused’s application was not brought by way of notice of motion, and no affidavit evidence was put before the Court to support the various factual assertions which were made in written submissions, and from the Bar Table, particularly as to the availability of counsel to conduct the accused's defence.

4. Tendered in support of the application was a bundle of documents which became exhibit A, and to some of which I will refer in a moment. Also tendered on the application were two folders of documents which became exhibit B which relate, in particular, to a disclosure issue to which I will return. Exhibit C on the application was a chronology prepared by the accused's solicitors who act for him in family law proceedings, setting out various steps which have been taken in relation to those proceedings.

5. It is necessary, in order to put this application in its proper context, to summarise the procedural history of the matter up to the present time.

6. On 3 September 2009 Michael Loch McGurk, to whom I shall refer as the deceased, was shot and killed outside his home. On 27 October 2010 the accused was charged with soliciting to murder the deceased. On 4 November 2010 the accused was charged with the deceased's murder. On 7 June 2013 the accused was further charged with intimidating Kimberley McGurk, the wife of the deceased.

7. On 17 December 2010, following his arrest, the accused was granted bail by Price J in this Court. Committal proceedings were conducted in the Local Court in August and September of 2013, following which the accused was committed for trial. On 1 November 2013 he was arraigned in respect of each of the counts to which I have referred, and entered pleas of not guilty. A trial date was fixed for 25 August 2014.

8. In February of 2014 the matter came before me for directions, with a view to making orders facilitating the resolution of any pre-trial issues or applications. There were various directions hearings held after that time. On 18 June 2014 I was informed by those then representing the accused that the accused proposed to bring an application for a permanent stay of his trial, based upon principles articulated by the High Court in Lee v The Queen [2014] HCA 20.

9. The accused's application was heard by me between 15 and 22 July 2014. At the conclusion of that hearing I reserved judgment, at which time I was informed by senior counsel then appearing for the accused that it was evident that whomever was unsuccessful in the application would appeal to the Court of Criminal Appeal. In all of the circumstances I formed the view that it was not possible to maintain the trial date of 25 August 2014 and accordingly I vacated that date.

10. It should be noted that the Crown did not oppose the vacation of the trial date. I was informed at the time that part of the reason for the Crown's absence of opposition was that there had emerged an issue relating to Fortunato Gattellari (“Gattellari”), the Crown's principal witness, which required further investigation. At that time the precise nature of the issue to which the Crown referred was not articulated in detail. That detail has now emerged on the present application and is a matter to which I will return.

11. On 30 September 2014 I refused the application brought by the accused for a permanent stay of his trial. Consistent with the indications given by senior counsel at that time, the accused appealed against my decision to the Court of Criminal Appeal. On 13 November 2015 the Court of Criminal Appeal dismissed the accused's appeal.

12. Upon the judgment of the Court of Criminal Appeal being handed down, I listed the matter before me on 30 November 2015. On that occasion I set a trial date of 11 July 2016 and, having been made aware of the fact that there were some pre-trial applications to be determined, I listed those matters to commence on 11 May 2016. I was informed at the time that those pre-trial matters would take between one and two days to complete.

13. The matter came before me for directions on 15 February 2016. Part of the purpose of listing the matter on that day was to ascertain the outcome, or at least the progress, of discussions which I had been told were taking place between the Crown and the accused's legal representatives with a view to refining the issues at the trial. When the matter came before me on that day, and absent the making of any order, the solicitor then acting for the accused filed an affidavit which raised, for the first time, a suggestion that the accused was experiencing difficulty in funding his defence. The affidavit set out, amongst other things, the fact that senior and junior counsel who had been previously retained to appear, and who did appear on behalf of the accused at his committal, were in the process of returning their respective briefs because no satisfactory arrangement had been made for the payment of their fees.

14. On that occasion I adjourned the matter for further directions until 1 April 2016. In doing so I endeavoured to make it clear that subject to the determination of any application or applications that the accused may bring at any time in the future, the trial would proceed on the date which had been allocated.

15. When the matter came before me on 1 April 2016 I was informed that agreement had been reached between the parties in relation to various issues, the effect of which would be that the trial would, in all likelihood, be shortened to some degree. At that stage the estimate which was provided to me was one of three to four months. Having been told that, the solicitor for the accused proceeded to inform me that the accused proposed to make an application that his trial date be vacated, on the basis that he could not fund his defence. Upon being so informed, I made orders facilitating the filing and service of affidavit material by both parties. Mindful that the trial date was fast approaching, I listed the hearing of that application on 29 April 2016, noting that it had an estimate of one day.

16. On 26 April 2016, only three days before the allocated hearing date, and at a time which was substantially outside (and thus in breach of) the timetable which I had set for the filing and service of affidavit material, the accused's solicitor sought to serve a large volume of further documentary material comprising hundreds upon hundreds of pages relating to the accused's financial position. That necessitated my having to re-list the matter urgently on 27 April, when the Crown informed me that the nature and extent of the additional material which was now sought to be relied upon by the accused was such that it would require some considerable time to review it and to determine what, if any, further evidence was to be filed in response to it. This led to the vacation of the hearing date of 29 April. The matter was then listed for hearing on 20 May.

17. On 20 May, having heard evidence in relation to the accused's application, I reserved judgment. I handed down judgment on 24 May 2016 refusing the application and confirming the trial date of 11 July. Following that, the accused's solicitors, Colin Daley Quinn, filed a notice of intention of ceasing to act for the accused.

18. The matter then came before me for further directions on 27 May 2016. At that stage the pre-trial applications remained listed for 30 May pursuant to the orders that I had made back in November of 2015. However because of my other trial commitments at that time, I was forced to indicate to the parties that I would not be in a position to hear any pre-trial applications on 30 May. Mr McManus, a solicitor from Colin Daley Quinn, appeared for the accused on that day and indicated that it was proposed that his firm would formally withdraw from the matter on 2 June, in keeping with the notice which had been filed. Mr McManus indicated for as long as his firm remained in the matter, those solicitors within it who had carriage of the proceedings involving the accused would continue to have discussions with the Crown, to the extent that this was possible, with a view to endeavouring to narrow the issues for the trial.

19. In all of those circumstances, I listed the pre-trial applications for hearing before me on 6 June. However, I also listed the matter for further directions on 2 June, that being the date upon which Mr McManus had indicated that he was proposing to formally withdraw.

20. On 2 June 2016, when the matter came before me, the accused appeared unrepresented. Having discussed the forthcoming hearing of the pre-trial applications, I asked the accused whether he wished to say anything. He responded by saying, amongst other things, the following:

“I have to go to the Family Court and put in another application. I've tried every avenue since I was last here and have no alternative but to file another urgent application in the Family Court which I hope to do today or in the morning.”

21. Despite the accused indicating to the Court that he proposed to make a further application to the Family Court of Australia for the release of funds for his trial, exhibit C on the present application, which is a chronology of applications made to the Family Court of Australia in proceedings to which the accused is a party, does not record any application ever having been made by the accused as he had foreshadowed to me when before the Court on 2 June 2016.

22. On 6 June 2016 the matter came before me for the purposes of hearing the pre-trial applications which had previously been foreshadowed. The accused was initially unrepresented on that occasion although it should be noted that when his previous solicitors and counsel had been retained, written submissions in relation to the issues arising on the pre-trial applications had been prepared and filed with the Court. The accused informed me on that occasion that he had made arrangements for Mr Frakes, his solicitor in the family law proceedings, to appear on his behalf on that day. I stood the matter down for a period of almost one hour so as to allow Mr Frakes to appear.

23. When Mr Frakes appeared before the Court he made an application that the hearing of any pre-trial applications be adjourned until the first day of the trial. In support of that application Mr Frakes said, amongst other things, the following:

“To make your Honour aware, there are efforts both in negotiation and litigation on an urgent basis to try and get funds. As I understand, the preliminary arguments are obviously important and indeed crucial for Mr Medich to be in a position to deal with such complex and vast areas as a self-represented litigant is difficult. So I apprehend that why he has asked me to come today is to let your Honour know that there could be a solution imminent. I have to acknowledge that we responded to the proposal at 5pm on Friday and at 9.30 this morning we have not received a comment and obviously I am waiting with bated breath as to what response we will get to the matters that I have raised that could get there.”

24. Mr Frakes' indication that there "could be a solution imminent" was, as I have said, given on 6 June 2016. That was some five weeks before the trial date.

25. In the end result, the Crown did not oppose the application that the hearing of the pre-trial issues be stood over until 11 July. What was proposed was that the Crown would present an indictment against the accused on that day, that the accused would be arraigned, that a plea would be taken and that a jury would be empanelled. It was then proposed that the jury would be sent away and asked to return on Wednesday, 13 July, and that in the intervening period the pre-trial applications would be determined so as to allow the Crown to open to the jury on 13 July. In light of the Crown's consent, I made orders facilitating that course.

26. On 17 June 2016, which was some three and a half weeks after I had handed down judgment in relation to the accused's application heard on 20 May for the vacation of his trial, the accused filed a notice with the Registrar of the Court of Criminal Appeal seeking to appeal against my decision. The hearing of that appeal was expedited and it was listed on 6 July 2016.

27. On 5 July 2016 the Registrar was notified that the accused proposed to withdraw his appeal. It is apparent from the material contained in exhibit A on the present application that the accused withdrew his appeal because on the same day orders were made by the Family Court of Australia, part of the effect of which was to facilitate the deposit of $1.8 million into the trust account of Colin Daley Quinn Solicitors, such moneys to be expended solely for the purpose of permitting the accused to fund his defence of the charges brought against him (see annexure 5 to exhibit A).

28. In the course of the hearing of the present application I was informed that the orders of the Family Court of 5 July 2016 were made by consent of the parties. They apparently followed, and were a culmination of, the negotiations about which Mr Frakes had informed me on 6 June. It is relevant to note, however, that there is no evidence before the Court as to when those negotiations commenced.

29. It should also be noted that notwithstanding the deposit of $1.8 million into the trust account of Colin Daley Quinn Solicitors, no solicitor from that firm appeared before me on the present application, be it in the capacity of instructing Mr Lawrence or otherwise. Mr Lawrence informed me that his retainer to appear on behalf of the accused had been organised through direct access from the accused, without the intervention of any solicitor.

30. Moreover, it would appear, based upon what I was told from the Bar table by Mr Lawrence, that Mr Daley, a principal of Colin Daley Quinn, has been instrumental in making arrangements to retain counsel to appear for the accused at his trial. That no solicitor from Colin Daley Quinn, in all of those circumstances, appeared before this Court in relation to the present application is something that I find quite extraordinary. The orders for the deposit of $1.8 million into the trust account of Colin Daley Quinn, and the ancillary orders made by the Family Court, which appear at tab 5 of exhibit A and which require the accused to account to his former wife for the funds expended on his defence, were obviously made on the basis of an indication from Colin Daley Quinn Solicitors that they were acting, or would act, for the accused in his trial. In those circumstances, their absence from this application is, as I have said, something that I find quite extraordinary.

31. I referred at the commencement of these reasons to an issue of prosecutorial disclosure. That issue also has a bearing on the present application. Some of the material relating to it is contained in annexure 3 of exhibit A on the present application. Other material is contained in exhibit B. It is necessary in the circumstances for me to summarise that material.

32. On 16 June 2013 the New South Wales Police were informed of an allegation that the accused's son, Peter Medich, had been approached on Saturday, 13 July 2013, by an unknown male in a shopping centre known as the Leichhardt Forum. The male stated that he had been asked to approach the accused's son by Gattellari, and said that Gattellari would be prepared to have what is described in the evidence before me as a "memory loss at the committal hearing" if he was paid a large amount of money. The male allegedly provided the accused's son with two mobile phones and an email address for future contact.

33. After the police were notified of these allegations, Strike Force Smedley was set up in order to investigate them. A meeting took place between various police on 19 December 2013 and a progress report in relation to the investigation was provided. It was suggested at that meeting that investigators were uncertain of the extent of any involvement on behalf of Gattellari. However two other persons who were potentially involved were apparently identified, namely Robert Harley McCarthy and Frank Gattellari.

34. On 6 March 2014 police officers attended the Cooma Correctional Centre and spoke with Gattellari. During that meeting Gattellari disclosed details of what was described as an approach by the accused for a payment of $10 million, in return for Gattellari not giving evidence against the accused in the proceedings. A note compiled by police at the time of their attendance on Gattellari on 6 March 2014 forms part of annexure 3 to exhibit A. That note records that Gattellari disclosed, amongst other things, that:

1. he sent a message, through a “go-between” to the accused, that it would "cost him $10 million before the committal";

2. he did not know the identity of the so-called “go-between”;

3. that if the accused did not accept the offer before the commencement of the committal hearing, the figure would increase to $15 million;

4. he heard no more and the committal took place;

5. that only a matter of days before recently being contacted by police he had been contacted through his "go-between" and had been informed that the accused "wanted to do business".

35. Gattellari also indicated to the police that he did not wish to disclose the identity of the person to whom he referred as the “go-between” but indicated that he would provide a statement (under inducement) to independent investigators. Significantly the investigators' note of the meeting with Gattellari records the fact that the possibility of an offence of perverting the course of justice having been committed was discussed with Gattellari.

35. What occurred in the course of the investigation of this matter is not clear on the evidence. What is clear, however, is that police utilised the services of an undercover operative and also obtained various statements and other material. That material is contained in exhibit B on the present application.

36. On 7 June 2016 police sought advice from a Police Prosecutor in the legal advice section of the State Crime Command, concerning obligations of disclosure which might attach to the material obtained by Strike Force Smedley. Given the importance of Gattellari as a witness in the accused's trial, and given the nature of the material which I have summarised, one wonders why it was thought necessary to obtain advice. The fact that an obligation of disclosure attached to such material ought, in my view, to have been self-evident. In any event, on 9 June a Mr Nasr, a lawyer and senior prosecutor in the State Crime Command, expressed the view that a legal obligation existed to disclose the material gathered by Strike Force Smedley to both the Crown and to the accused Medich. By letter of 23 June 2016 the documents which appear in annexure 3 of exhibit A were provided to the accused. The material in exhibit B was provided to him on 11 July 2016, i.e. on the very date that the trial was scheduled to commence.

37. It is appropriate at this juncture for me to make a number of observations regarding the issue of disclosure. Senior counsel for the Crown informed me that the investigation of matters by Strike Force Smedley was not conducted by any officer who was involved in the investigation of the deceased's murder. Indeed the Crown explained that this was a deliberate course so that the Crown would be kept "at arm's distance" from such matters. The Crown said, and I accept, that there had been, over the last several years, repeated attempts by the Crown to resolve any issue of disclosure arising out of these matters. It is evident from the advice of Mr Nasr of 9 June 2016 that as at that date the Crown had not been made aware of the nature of extent of any of the material to which Mr Nasr ultimately concluded a disclosure obligation attached. It seems that the Crown received the material in exhibit B only a short time before it was provided to the accused.

38. Whilst I accept that the fault for the delay in the resolution of this issue does not lie at the feet of the Crown Prosecutor, her junior or any of her instructing solicitors, the inescapable fact of the matter is that information was provided to the police three years ago in relation to Gattellari. There has been absolutely no explanation of why it was not until 7 June this year that advice was apparently sought by the police in relation to the disclosure of that material. Indeed, what happened in the three years between July 2013 and July 2016 is completely unexplained on the evidence. The Crown Prosecutor candidly conceded that even if she were in a position to call the officer-in-charge of Strike Force Smedley to give evidence in relation to these issues, any explanation that he might give would be likely to be inadequate.

39. The situation in relation to the issue of disclosure, as I have outlined it, is unacceptable. In fact it is deplorable. In saying that, as I have made clear, I cast no personal blame on the Crown, or those who instruct her. However the fact remains that there has been what can only be described as a significant and wholly unexplained period of delay of three years between the time that this information first came to the attention of the police and the time at which it was disclosed. Gattellari, on any view of it, is a pivotal Crown witness. The unacceptability of serving two volumes of material on an accused by way of disclosure on the first day of a trial needs no further elucidation.

40. The Crown's obligation of disclosure also has a second aspect to it. It is apparent from annexure 4 of exhibit A that on 6 July 2014 the Director of Public Prosecutions wrote to the accused for the purposes of disclosing further matters which had arisen from a conference with the witness Senad Kaminic which had taken place on 28 June 2016. Why it took a week following the conference for matters to be disclosed is again not something which is explained on the evidence.

41. The letter sent to the accused on that day listed eight separate matters which were said to have arisen as a consequence of the conference and which had not previously been disclosed by Mr Kaminic. Without going into detail, it might also be said that Mr Kaminic is an important Crown witness. The terms in which the disclosure was made in the correspondence of 6 July 2016 border on incomprehensible. Indeed, the Crown accepted that a further statement could "easily" be obtained from Mr Kaminic setting out, in a proper form, those additional matters about which he had advised the prosecution in the course of the conference. Again, why that course was not adopted is unexplained. Whilst not as egregious as the matters pertaining to the disclosure of information obtained by those engaged in Operation Smedley, the manner in which the Crown has addressed this aspect of its disclosure obligations, in my view, leaves a great deal to be desired.

42. It is against all of that background that the accused has made application that his trial be adjourned until 28 August 2016. In advancing submissions in support of that application counsel for the accused pointed to a number of matters, quite apart from the issues of disclosure to which I have referred. In that regard it should be noted that the Crown accepted that because of the matters arising from those disclosure issues, the accused was entitled to some adjournment in order to allow him to consider the material which had recently been served upon him. However, the Crown opposed an adjournment of the length of time sought by the accused.

43. Mr Lawrence submitted that it would take some days for the accused to be able to read and analyse the material contained in exhibit B which had now been served by the Crown. However, Mr Lawrence did not suggest that a period of six weeks would be required for that purpose. He submitted that the adjournment until 24 August would see senior and junior counsel being available to appear for the accused at his trial.

44. Counsel emphasised what he submitted to be the importance of the accused being represented in his defence of what is obviously a serious charge. Whilst acknowledging the importance of case management and similar considerations, counsel submitted that such matters must not be allowed to "frustrate the very purpose of litigation". He submitted that the fundamental consideration of the accused being represented in the most serious kind of criminal case was a factor deserving of significant weight. It was submitted that if the accused was represented, the trial would be expedited. Although not specifically stated, counsel effectively submitted that the opposite would be the case in the event that the accused were required to appear for himself.

45. Counsel further submitted that there was "a real risk" to the proper administration of justice if the application were refused, and the matter were to proceed.

46. The Crown, as I have said, accepted that the accused was entitled to some period of time in which to consider the material which was recently disclosed and served upon him, but objected to an adjournment of the length of that which was sought.

47. In support of her position, the Crown urged me to look at the history of the matter, which I have outlined. In doing so the Crown pointed, in particular, to the absence of any affidavit evidence filed in support of the present application, and which might have provided support for some of the assertions which were made on behalf of the accused.

48. The Crown also pointed to the fact that it is now almost seven years since the deceased was killed. It was submitted that it was relevant to take into account the position of the deceased's family, and their desire (and need) for closure. The Crown also alluded to the fact that the longer the delay, the greater the propensity for the memories of witnesses who are to be called in the case, to fade.

49. Whilst accepting that a contributing factor to the present delay was a failure to deal properly with the issue of disclosure, the Crown also pointed to the fact that the proposed adjournment until 24 August was based upon the availability of particular counsel, in the absence of any evidence being placed before the court as to the nature and extent of any enquiries which may have been made in relation to availability of other counsel. In this regard, Mr Lawrence, in response to an enquiry from me, said the following from the Bar table at T20 L18:

“Your Honour, I have spoken to the criminal solicitors, Mr McManus and Daley. I am told from Mr Daley that he approached each of the floors of the barristers specialising in criminal law in Sydney. I was hoping to get an affidavit, that hasn't been possible in the time available. He instructs me that the arrangement that is put forward in the written submissions is not one that has been crafted in light of Ms Francis' previous involvement but rather was the best arrangement that could be reached, in his opinion, after having made those enquiries.”

51. The Crown submitted, in effect, that Mr Lawrence's response to my query did nothing more than highlight the absence of any proper evidence being placed before the court in relation to that issue.

52. There was, in the course of the hearing, some suggestion that the material in exhibit B would assume about three hours of reading time. On my assessment any suggestion that that amount of material could be read and analysed in a matter of hours is completely unrealistic. The Crown ultimately accepted that to be the case.

53. Clearly the accused is entitled to some reasonable period to read and consider that material. It is also self-evident that the accused is facing trial for the most serious criminal offence. However, in all the circumstances, I was not persuaded that an adjournment of the length of that which the accused sought was appropriate.

54. The length of that adjournment, as counsel for the accused specifically accepted (at T14 L5-11), was based upon the availability of particular counsel. As I have said there is no evidence at all before me as to what enquiries were made to ascertain the availability of other members of the New South Wales Bar to accept the brief.

55. Mr Daley, who is not here and who has provided no affidavit, is said to have approached "each of the floors of barristers specialising in criminal law in Sydney". There is no evidence as to who was approached, when any approach was made, or what the terms of any approach or enquiry may have been.

56. Even if one were to accept what I was told by Mr Lawrence from the Bar table regarding the enquiries said to have been made by Mr Daley, the only thing that is clear is that whatever enquiries were made, they were apparently restricted to floors of barristers said to specialise in criminal law in Sydney. If that is the case, then such enquiries as appear to have been made were unduly limited, to say the least. There are, in my experience, many members of the Bar who appear regularly in criminal proceedings and whose Chambers are within floors, the members of which accept briefs in a variety of jurisdictions. Even allowing for the seriousness of the offence with which the accused is charged, there is no warrant, in my view, to adjourn a trial to suit particular counsel, in circumstances where there is no evidence of the availability of other counsel to take the brief. This is particularly in view of the history of the proceedings as outlined.

57. When the matter came before me on 6 June 2016 it was evident from what I was told by Mr Frakes that negotiations were taking place at that time between Mr Frakes, on behalf of the accused, and those acting on behalf of the accused's former wife, with a view to releasing funds so as to allow the accused to meet the costs of his defence. At that time, as I have noted, the accused had brought no appeal against my refusal of his application for a vacation of the trial date.   In those circumstances he must have been aware that he was facing a trial commencing on 11 July, that is in approximately 5 weeks time. There is no evidence at all of any steps taken by or on behalf of the accused at that time towards retaining counsel, on the basis that the discussions that were then taking place would, as they ultimately did, be successful in seeing funds released. Moreover, no evidence has been placed before the court which would indicate when it was that those negotiations commenced. The contents of exhibit C are completely silent on that issue. That is so in circumstances where, on the afternoon of 11 July when this application was being argued, Mr Frakes, as I understood from what I was told by Mr Lawrence, was present in court and was available to be called to give evidence in relation to that (and any other related) issue.

58. Consistent with the arrangements which are generally made in matters of this nature, a jury panel was requisitioned for 11 July. Necessarily, the arrangements for the attendance of that panel were put in place some considerable time ago. The panel comprised 62 members of the community. It would have been, in a practical sense, impossible for the panel to be held in abeyance for a period of six weeks.

59. As I explained to the parties in the course of the hearing of this application, if the adjournment sought were granted it would obviously be necessary for a new jury panel to be requisitioned. As I indicated to the parties, I consulted with the Sheriff as to the time that this might take. I was informed that even if it were possible to issue new summonses immediately, a panel could not be assembled for at least eight weeks or, in other words, at any time before about mid-September. That time line, as I have said, is predicated on the assumption that jury summonses could be issued immediately. Whether that is possible is not clear. Given the present estimate of the trial, the adoption of the course sought by the accused could therefore see the trial extend well into 2017.

60. Generally speaking, it is not the practice of the court to list trials in circumstances where the estimated length is such that it is likely to extend beyond the end of the law term. The reasons for that are many and varied. It follows that, subject to a number of considerations including available judicial resources, this trial, if it is adjourned, may not commence until sometime in 2017, in circumstances where, as long ago as November of 2015, the accused was given a trial date, and where the trial was supposed to take place as long ago as 2014.

61. Although considerations of case management cannot, as counsel for the accused pointed out, be permitted to dominate the exercise of the discretion, they are nevertheless matters which are relevant to that exercise. Moreover, the death of the deceased took place almost seven years ago. In circumstances where such a significant period of time has already elapsed the Crown is entitled, in light of all of the matters to which I have referred, to present its case without any further delay, and without any further risk of a deleterious effect on the memory of any witness that it chooses to call.

62. It was for those reasons that I concluded that the application of the accused should be refused and that a jury should be empanelled and directed to return on 25 July next. That is the course which I have taken.

63. I have informed the Chief Judge at Common Law and the Court of Criminal Appeal List Judge of the accused's intention to appeal against my decision, as conveyed to me by Mr Lawrence. Consistent with the practice which is generally adopted in situations of this kind, any appeal that the accused wishes to bring is likely to be expedited. In those circumstances I expect that any notice of appeal to the Court of Criminal Appeal will be lodged with the Registrar of the Court no later than 4pm today. I will inform the Chief Judge at Common Law and the Court of Criminal Appeal List Judge that I have now delivered reasons, and of my expressed expectation as to the filing of the notice of appeal.

64. I expect that the reasons that I have given this morning will be made available to me at some stage later today. When they become available they will be provided to the parties.

65. In those circumstances I will simply adjourn the matter until 25 July, on the understanding that in the event that an appeal is brought to the Court of Criminal Appeal, and in the further event that such appeal is unsuccessful, the matter can be placed back before me on 24 hours' notice being given to my Associate.

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Decision last updated: 24 April 2018