R v Sigalla (No 2)

[2016] NSWSC 940

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sigalla (No 2) [2016] NSWSC 940
Hearing dates:	20 June 2016; 23 June 2016
Date of orders:	23 June 2016
Decision date:	23 June 2016
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1)   Vacation of the trial dates; (2)   Adjournment granted.
Catchwords:	CRIMINAL LAW – practice and procedure – unrepresented client obtains representation – serious criminal offences charged – undoubted benefit of representation – Crown not opposed – adjournment granted.
Cases Cited:	R v Sigalla [2016] NSWSC 465 Dietrich v The Queen [1982] HCA 57
Category:	Procedural and other rulings
Parties:	Andrew Sigalla (Accused) Regina (Crown)
Representation:	Counsel: T McDonald SC/S Callan (Crown) P W Brewer (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Brendan Pigott (Accused)
File Number(s):	2013/151155; 2013/355116
Publication restriction:	Restricted – trial pending

EX TEMPORE Judgment

1. HIS HONOUR: During the course of the application before the Court, I have expressed, somewhat frankly, some frustration that the Court feels at the further application for the vacation of the trial date and the ultimate hearing of this matter.

2. This matter has been delayed since 2013 and has been the subject of a number of applications for the vacation of dates, otherwise set for hearing. On 8 April 2016 a motion, notice of which had been given by the accused, was made and heard relating to an application to vacate the trial date on the basis, amongst other things, of the insufficiency of funds necessary to secure the services of counsel.

3. At that stage the trial date had previously been vacated and her Honour, Justice Wilson, who dealt with the matter and issued judgment, which can be found in [2016] NSWSC 465, dealt with the duties and obligations of a trial judge to ensure that an unrepresented accused receives a fair trial and was of the view, a view I hasten to add that, with respect, I adopt and share, that a trial judge from this Court would ensure that a fair trial occurred, regardless of whether or not Mr Sigalla was represented.

4. Before the motion with which her Honour, Justice Wilson, dealt, there was an application that had been dealt with by his Honour, Justice Johnson, in which his Honour came to the same view as to issues associated with insufficiency of funds and took the view that indigence had not been proved and the matter had no reason to be vacated, but, on the basis of the matters that were put to him, decided nevertheless to vacate the February dates and list them in May.

5. They were initially listed before Justice Wilson. The application before her Honour, Justice Wilson, and the inability of the accused, Mr Sigalla, to obtain counsel and the consequential assessment that the proceedings would, because counsel were not involved, probably take a longer period than would otherwise be the case, necessitated the reassignment of the trial to me as the trial judge.

6. As earlier stated, on 6 May, a further application was made at the arraignments list, I think, or in my absence from Sydney, before his Honour, Justice Johnson, to vacate the trial date. His Honour refused that application.

7. As a consequence, what is being put to me at this stage is a further application to vacate the dates. There are some significant differences in this application from those that occurred previously.

8. First, notwithstanding that in the proceedings before Justice Johnson, earlier mentioned, that is the February proceedings, counsel appeared for the purpose of the adjournment application, no legal representation had in fact been obtained for the trial. As a consequence his Honour, Justice Johnson, in February, her Honour, Justice Wilson, in April and his Honour, Justice Johnson, in May, were dealing with hypothetical situations based upon the possibility of the obtaining of funds and the capacity to brief counsel.

9. One can well understand the scepticism with which, given the delays that have occurred since 2013, the Court looked at the possibilities of counsel being briefed. Notwithstanding that counsel is now briefed and has given assurances to the Court as to counsel’s involvement in the trial, there remains a degree of cynicism in the Court.

10. One must, without any criticism of counsel or indeed Mr Sigalla, ask the question why, with some 2000 barristers in Sydney, a barrister was briefed who was unavailable for the time when the trial was to be set down for hearing? I am not suggesting in that, that the 2000 or so barristers in Sydney have the experience or the capacity to run a serious criminal trial, to the standard that Mr Brewer does. Nevertheless, there are other counsel in the criminal area, who do serious criminal matters, and the cynicism arises from the number of attempts that the accused has made to vacate the hearing dates, all of them on the basis of the possibility of counsel being briefed or the inability to brief counsel.

11. Suddenly counsel has been briefed, but that counsel is unavailable for the trial dates set down by the Court. The Court does not list matters for the convenience of the Crown or the accused.

12. The Court’s listing procedure is complicated and complex. The Court must juggle, for want of a better term, the number of trials that are required to be heard, the number of courtrooms, which are limited, and the number of judges that are available and have the experience to run particular trials. Each of these is a difficult task which the Court assigns to an arraignments judge for the purpose of listing.

13. My expression of view during the course of the application for the vacation of dates, that it is better for the administration of justice and certainly for the accused if he were to be represented, remains my view. The ultimate question is whether I can be confident that the application now made is in a different category to the applications previously made.

14. There are good reasons why the High Court determined and expressed the view it did in Dietrich v The Queen [1982] HCA 57. That of course requires, for a case to proceed in relation to a serious criminal matter, that a person have the opportunity to be represented. The underlying principle in that is, as I have already stated, and as the Crown has accepted, that it is a serious matter for a person’s liberty to be at risk with serious criminal matters and it is important in those circumstances, in the system that we operate, that such a person be given as good a representation as can be marshalled and, I hasten to add, a representation, to the extent possible, of his choice.

15. Those are the competing elements that the Court has and which the Court must balance. In the civil area the trend of late has been to give priority to case management rather than perfect justice. This is not a civil matter. This is a criminal matter in which there are a significant number of charges and on which, when the matter proceeds to hearing and if the accused were to be found guilty, there is a real possibility, if not probability, that a term of imprisonment will be imposed.

16. The liberty of the citizen is a fundamental aspect of the rule of law and the citizen is entitled to be represented as best the citizen can. By ‘citizen’, I include anyone charged with offences in this State.

17. The other alteration to the position is the Crown’s recognition of the difficulties that would be faced were the matter to proceed with Mr Sigalla, the accused, unrepresented. The Crown’s position in the past has been to oppose any vacation of the date or adjournment of the proceedings. At these proceedings and on this application, given that legal representatives are here for the accused, the Crown’s position is not to consent to the adjournment but also not to oppose it.

18. The balance is a fine one, particularly because of the delays that have already occurred. However, it seems to me ultimately, if the Court is not about justice when dealing with a person’s liberty, there is no point in having courts. For that reason it seems to me appropriate to grant the vacation of the dates and the adjournment as requested.

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Decision last updated: 07 August 2018