R v Serrano (Ruling No 4)
[2007] VSC 208
•6 June 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1494 of 2006
| THE QUEEN |
| v |
| APOLONIO SERRANO |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2007 | |
DATE OF RULING: | 6 June 2007 | |
CASE MAY BE CITED AS: | R v Serrano (Ruling No. 4) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 208 | |
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CRIMINAL LAW – Murder trial – Accused man absconded – Accused has waived right to be present during trial and to give evidence – Accused has not withdrawn the instructions of counsel – Duty of counsel for accused to remain in Court and continue to act for and on behalf of accused – Role of counsel – Counsel able to continue to properly assist the Court in absence of accused – Fundamental duty owed by counsel to the Court – Counsel’s duty to Court takes precedence over duty to client.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Gibson | Office of Public Prosecutions |
| For the Accused | Mr M. Rochford with Mr D. Hallowes | Victoria Legal Aid |
HIS HONOUR:
This trial commenced on last Monday week, 21 May. The jury was empanelled on 23 May and evidence commenced on that day. Some 45 witnesses have given evidence and we are now at a stage where the Crown case, all being well, might have concluded within a day or so.
The accused man has clearly absconded, not having attended at court and answered his bail on Monday 4 June, Tuesday 5 June or today 6 June.
I adjourned the hearing to today to give the police the opportunity to try to find Mr Serrano or gather further information as to his whereabouts. Their best efforts have proven fruitless.
In the meantime, counsel who appear for Mr Serrano, Mr Rochford and Mr Hallowes, have consulted the Ethics Committee of the Victorian Bar as to their position. They have advised me that they have received clear advice from the Ethics Committee that they should withdraw forthwith from the case. As I understand that advice, it is to the effect that they are without instruction, counsel cannot appear without instruction and, therefore, they must withdraw forthwith.
I, myself, have pondered this position at some depth and at some length over the last 24 hours. I have listened carefully to Mr Rochford's submissions. I, too, have the experience of almost three decades at the Victorian Bar and some three years on the Bench. I regret to say that my view is that the Ethics Committee is incorrect in this case and that it is the duty of counsel to remain.
It is of course a fundamental and well‑established principle that counsel owe a duty to the court. It is also a fundamental and well‑established principle that that duty takes precedence over the duty owed by counsel to the client; see Giannarelli v Wraith[1].
[1](1988) 165 CLR 543 at 556‑7 per Mason CJ and 578‑9 per Brennan J.
The immunity of counsel from suit is not a privilege accorded by the law for any capricious reason. That immunity exists because it is necessary to protect and foster the primacy of the duty which counsel owes to the court. That duty itself, in turn, is of great importance to the proper administration of justice in our State.
In this case, the accused clearly has not expressly withdrawn instructions of counsel. It has been submitted to me by Mr Rochford that he has impliedly withdrawn his instructions by absconding on bail. Notwithstanding what was said in Jones's case about that matter, I disagree.
It seems to me that all that the accused has done is that he has waived his own right to be present if the trial were to proceed and, if he remains absent, to give evidence on his own behalf. It does not seem to me that he has done anything from which it may be properly implied that he has withdrawn the instructions of counsel. However, and in any event, Mr Rochford has informed me that it is not on that basis that he considers it his duty to withdraw but, rather, on the basis that he cannot appear without a client present to instruct him.
As I stated, in my view the duty of counsel clearly lies in remaining in court and acting for and on behalf of the accused man. It is not for me to express any view as to whether it would be a breach of the duty of counsel to the accused if they were to leave the court and to withdraw from it, but it would, in my view, be a breach of the obligation of counsel to the court were they to do so.
The role of counsel in appearing in court is of great importance. In accepting a brief and announcing his or her appearance in court, counsel accepts onerous and important obligations not only to the client but, as I have stated, to the court. It is not for counsel to withdraw at will or without good and sound cause from appearing in a case in which he or she has announced an appearance.
In this case, in my view, counsel clearly have a role which they can usefully perform for and on behalf of the accused man, notwithstanding his absence from court. Indeed, it is not apparent to me why counsel could not properly fulfil that role and, thus, discharge their duty to the court in the absence of the client.
As I have stated, evidence for the Crown is well advanced and, all being well, that evidence might complete in the next day or so. Should the counsel remain, they should, and no doubt would, assist the court by performing the following functions.
Firstly, of course, they should make submissions as to whether I should now discharge the jury or continue to hear the case in the absence of the accused man. Clearly, counsel would not, nor could they, gain instructions from the accused in relation to that matter, but it is a matter of law on which counsel for the accused could properly assist the court.
Secondly, witnesses are still to be called on behalf of the Crown. I would expect that counsel, as they have shown themselves to be, are already well prepared to cross‑examine those witnesses in relation to their evidence and they are on warning in relation to that evidence from the depositions which have been served in this case.
Thirdly, there may be issues of admissibility of evidence. Indeed, one such issue has already been flagged and has been the subject of some preliminary discussion. The court would be assisted in its discharge of its office in this case were counsel to remain and make submissions in relation to those issues.
Fourthly, Mr Rochford had foreshadowed making a no case submission on behalf of the accused at the conclusion of the Crown case. It is clear that that submission could be made without any input from the accused. Mr Rochford, having foreshadowed that submission, no doubt considers it is at least of some merit and ought to be made. There is no reason why it should not be made on behalf of the accused man.
Fifthly, although this may be more a matter of debate, I would expect that the accused, if he had intended to have witnesses other than himself called in the trial, would have identified those witnesses to counsel. Depending on the standing of the instructions of counsel at this stage, it would seem to me that if counsel had already conferred with those witnesses they would be in a position to call them on behalf of the accused man.
Sixthly, after the conclusion of evidence I will need submissions in relation to some legal issues, particularly issues relating to consciousness of guilt. Other issues have also presented themselves to me, one of which I have already mentioned, that is, the potential for an alternative verdict in this trial of manslaughter. Obviously, the court would be assisted by input from counsel for the accused on those matters.
Seventhly, counsel for the accused could make a final address and no doubt would assist the court in doing so.
Eighthly, counsel for the accused would have a right to take exceptions to the charge which I would give to the jury if the case proceeds. In my experience, the process of counsel raising exceptions is an important and, indeed, a very helpful process. It is one which I value and one which, given the experience and expertise of counsel who have appeared on behalf of Mr Serrano, I would expect would be of assistance to me and, thus, to the administration of justice.
Finally, if the jury, during their deliberations, were to ask questions, it is my custom to ask the jury to commit any question to writing and generally to raise any difficult question with counsel before the jury attends. Again, in my experience, I have had useful help from counsel on both sides of the Bar table in answering questions which can sometimes become quite complex and difficult.
In all of those matters, with one possible exception, it would seem to me that counsel could properly assist the court and discharge their duty to the court without any conflict at all in relation to their position with the accused.
It would seem to me that, indeed, in doing so they would only enhance the position of the accused.
As I have stated in argument, I have the highest regard for the Ethics Committee of the Victorian Bar. It performs a very onerous role. Its members are drawn from the most respected elements of the Victorian Bar and I would expect they have given this matter anxious consideration. The fact of the matter is I disagree with the advice they have given to counsel for the accused on this aspect of the matter in respect of this particular case. In my view, counsel do have an obligation to this court to remain. That obligation is superior to any obligation they have to the accused. I have no power to force counsel or require counsel to remain. I respect that they hold differing views to me and I do not criticise them if they were to withdraw, but I cannot refrain from expressing the view that it would be a breach of the counsel's duty to the court were they to withdraw.
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