R v Nour (No 1) - [2017] NSWDC 390

District Court

New South Wales

Medium Neutral Citation: R v Nour (No 1) [2017] NSWDC 390
Hearing dates: 26 – 29 June 2017
Date of orders: 29 June 2017
Decision date: 29 June 2017
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Application for adjournment refused

Catchwords: CRIME – PRACTICE AND PROCEDURE – Application by Accused in person for adjournment of criminal trial after empanelment of jury
Legislation Cited: Criminal Procedure Act 1986
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Jamal v DPP [2013] NSWCA 355
R v Alexandroia (1995) 81 A Crim R 286
R v Barca (19 August 1978, unreported)
R v Cox [1960] VR 665
Slotboom v R [2013] NSWCCA 18
Category: Procedural and other rulings
Parties: Regina (Crown)
Michael Nour (Accused)
Representation:
Counsel:
Mr M Breeze (Crown)
In Person (Accused)
Solicitors:
Solicitor for the Office of the Director of Public Prosecutions (Crown)

File Number(s): 2015/2089
Publication restriction: Nil

Judgment

HIS HONOUR: This is an application by the accused for an adjournment. Section 40(1) of the Criminal Procedure Act 1986, provides that a court may at any stage of criminal proceedings, adjourn the proceedings generally or to a specified day, if it appears to the Court necessary or advisable to do so. The case law establishes that whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge, that is, within my discretion.
In determining an adjournment application, I am not confined to the interests of the accused but the interests of justice as well: R v Cox [1960] VR 665, approved by the New South Wales Court of Criminal in R v Barca (19 August 1978, unreported). It is basic to the rules of procedural fairness that an accused be given a reasonable opportunity to present his or her own case, which necessarily includes a reasonable opportunity to prepare that case before being called upon to present it. The appearance that justice has been done, is particularly important in a criminal trial but, nonetheless, some limitation is required to be placed upon the right of the accused to delay the trial to prepare his or her case: R v Alexandroia (1995) 81 A Crim R 286 at 290, Jamal v DPP [2013] NSWCA 355 at [54]. I am entitled to take into account the strong public interest that, once fixed for hearing, upon the basis that the parties were ready to proceed, a criminal trial should ordinarily proceed with expedition. That was stated in R v Alexandroia at 291. The significance of this consideration has been reinforced by the enactment of the case management provisions commencing at s 134 of the Criminal Procedure Act 1986. That was established in Slotboom v R [2013] NSWCCA 18 at [36].
The accused is charged, that on 20 December 2014 at Bankstown, he did assault his then de facto wife, Jasmine Bohsali, occasioning actual bodily harm to her. The complainant is now known as Jasmine Kelly. As I understand it,…

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 Nour (No 1)

Details

AGLC: R v Nour (No 1) [2017] NSWDC 390
Case: [2017] NSWDC 390
Decision Date: 29 June 2017

CaseChat Overview and Summary

The case involved a criminal trial against an accused, Nour, who applied in person for an adjournment after the jury had been empanelled. The application was made in the relevant court, which considered the matter and ultimately decided against granting the adjournment. The primary issue before the court was whether the circumstances presented by the accused warranted an adjournment of the trial, despite the jury already being empanelled. This required consideration of the balance between the accused's right to a fair trial and the public interest in the timely administration of justice.

The court examined the grounds for the application, focusing on whether there was a sufficient justification for the delay. It took into account the potential impact of the adjournment on the efficiency of the court process, the fairness to the parties involved, and the overall public interest. The court determined that the reasons provided by the accused did not sufficiently outweigh the need for the trial to proceed without further delay. Consequently, the application was dismissed, reflecting the court's view that the case should move forward with the jury already present.

Given the decision, the court refused the accused's application for an adjournment, allowing the trial to continue as scheduled. This decision underscores the court's commitment to ensuring that the administration of justice is not unduly delayed, while also recognising the rights of the accused. The orders of the court were straightforward, with the application for adjournment being denied, and the trial proceeding as planned.

Orders

Orders of the court

Application for adjournment refused

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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Medium Neutral Citation:	R v Nour (No 1) [2017] NSWDC 390
Hearing dates:	26 – 29 June 2017
Date of orders:	29 June 2017
Decision date:	29 June 2017
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Application for adjournment refused
Catchwords:	CRIME – PRACTICE AND PROCEDURE – Application by Accused in person for adjournment of criminal trial after empanelment of jury
Legislation Cited:	Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Jamal v DPP [2013] NSWCA 355 R v Alexandroia (1995) 81 A Crim R 286 R v Barca (19 August 1978, unreported) R v Cox [1960] VR 665 Slotboom v R [2013] NSWCCA 18
Category:	Procedural and other rulings
Parties:	Regina (Crown) Michael Nour (Accused)
Representation:	Counsel: Mr M Breeze (Crown) In Person (Accused) Solicitors: Solicitor for the Office of the Director of Public Prosecutions (Crown)
File Number(s):	2015/2089
Publication restriction:	Nil