R v Roberts

[2004] VSCA 2

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 297 of 2001

THE QUEEN

v.

WERNER PAUL ROBERTS

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ORAL APPLICATION

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JUDGES:	BATT, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2004
DATE OF JUDGMENT:	6 February 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 2

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LEGAL PRACTITIONERS - Counsel - Should not appear in a matter after swearing affidavit in it.

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APPEARANCES:	Counsel	Solicitors
For the Crown (conviction applications)	Mr O.P. Holdenson, Q.C., and Mr R.T. Barry	Commonwealth Director of Public Prosecutions
For the Crown (sentence applications)	Mr R.T. Barry	Commonwealth Director of Public Prosecutions
For the Director of Public Prosecutions (Vic)	Mr D. Brown (by leave)	K. Robertson, Solicitor for Public Prosecutions
For the Applicant Roberts	Mr J.G. Traczyk	Mr D. Morey

BATT, J.A. (for the Court):

1. On Wednesday 4 February 2004 the parties were notified that judgment would be given at 9.30 a.m. today.  The Registrar was notified yesterday morning by counsel for Roberts that he wished the Court to defer giving judgment.  An affidavit sworn by him was filed in support of that application late yesterday afternoon.  Counsel has been heard briefly this morning in support of the application.  The ground is that the applicant Roberts desires the opportunity "to explore whether there may be 'fresh evidence' which may be relevant to this application"[1].  The affidavit goes on to state that counsel desires to examine transcript of proceedings in which he believes the witness and former member of the police, Rosenes, gave evidence to determine whether evidence was given which would reflect on the credit of Rosenes and whether evidence was given which may have been directly relevant to critical issues in the applicant's trial.  As the affidavit acknowledges, those matters had previously been canvassed in the application made to adduce "fresh evidence" by notice dated 6 November 2003.  The reasons the Court is about to publish show that the investigation now desired to be made could not produce admissible evidence that would lead to the success of Roberts's application for leave to appeal against conviction.  We would add that notice of this application could have been given to the Registry much earlier as it is based on information (such as it is) that counsel had as early as 15 January.

   [1]Emphasis added.

1. Accordingly the application for deferral of judgment is refused.

1. We mention one other matter since it appears from the course of these applications not to be understood.  In this Court it is not considered appropriate for a deponent to an affidavit to appear as counsel on the hearing, for the deponent may be required for cross-examination:  Camilleri v. Levine[2] and Gowans, The Victorian Bar:  Professional Conduct, Practice and Etiquette[3].  If the swearing of an affidavit by counsel is unavoidable, other counsel should be briefed to appear.

   [2][1998] V.R. 388, 391.

   [3]P.76-77.

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