R v Valencia (No 1) - [2022] NSWSC 1602

Supreme Court

New South Wales

Medium Neutral Citation: R v Valencia (No 1) [2022] NSWSC 1602
Hearing dates: 21 November 2022
Date of orders: 21 November 2022
Decision date: 23 November 2022
Jurisdiction: Common Law
Before: Yehia J
Decision:
The application to vacate the trial date is granted

Catchwords:
CRIMINAL LAW – Accused charged with murder – Judge alone trial – Defence application to vacate trial date – Adjournment necessary to engage new counsel and to obtain report from forensic pathologist – Application to vacate granted

Cases Cited:
MS v R [2017] NSWCCA 252

Category: Procedural rulings
Parties: Hector Enrique Valencia (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Schaudin (Applicant)
C Everson SC (Respondent)
Solicitors:
James & Jaramillo Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/00043308

Judgment

The accused, Hector Enrique Valencia, is charged that, between 7 November 2020 and 14 November 2020, he did murder Kim McRae. He has pleaded not guilty. The trial was listed to commence on 21 November 2022.
The accused elected to be tried by judge alone. The Crown consented to that application. I made an order that the trial proceed as a judge alone trial on 14 October 2022. The proceedings came before me for a direction hearing on 20 September 2022 and 6 October 2022. On each occasion, the parties then appearing confirmed the trial was ready to proceed. The issue in the trial was then identified as excessive self-defence.
By email, dated 16 November 2022, at 3:00pm, the Court was notified that the accused had withdrawn his instructions from both his solicitor, Mr Ekstein, and barrister, Mr Dalton SC. The matter was listed urgently before me at 2:00pm, on 17 November 2022. Mr Dalton SC and Mr Ekstein appeared on an amicus basis. Also present by way of audio-visual link was Mr Robinson from the Legal Aid Grants Division.
Mr Jaramillo, solicitor, attended. On 10 November 2022, the accused contacted, or had arranged contact on his behalf with, Mr Jaramillo. On 14 November 2022, Mr Jaramillo conducted an audio-visual conference with the accused where the accused confirmed that he wanted new legal representation. At the mention, on 17 November 2022, I expressed my view that all reasonable efforts should be made to obtain alternative counsel. By Notice of Motion, filed on 18 November 2022, the accused applied to vacate the trial. On 21 November 2022, Mr Schaudin, briefed only on this application, moved on the Notice of Motion to vacate the trial.
The grounds for the application are as follows:

Firstly, Mr Jaramillo has been unsuccessful in securing alternative counsel to conduct the trial. The Public Defenders' Chambers have been contacted without success. Ms Moore, Junior Solicitor at James & Jaramillo Legal Pty Ltd, has been corresponding with 19 different chambers to obtain counsel for this matter without success. The details of those inquiries are set out in Ms Moore's affidavit evidence.

Secondly, and unsurprisingly, Mr Jaramillo deposes that he does not have the capacity to digest the…

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 Valencia (No 1)

Details

AGLC: R v Valencia (No 1) [2022] NSWSC 1602
Case: [2022] NSWSC 1602
Decision Date: 23 November 2022

CaseChat Overview and Summary

The defendant, Valencia, was charged with the murder of an individual and was to be tried before a judge alone in the Supreme Court of Victoria. Valencia applied to vacate the trial date on the basis that new counsel had not yet been engaged and a report from the forensic pathologist had not yet been obtained. The legal issues before the court were whether the application should be granted and the trial date vacated to allow time for Valencia to engage new counsel and receive the pathologist's report.

The court held that it was necessary to grant the application and vacate the trial date. The court found that the delay in obtaining the pathologist's report was due to the Crown's failure to provide the pathologist with all of the relevant material in a timely fashion. The court also found that the delay in engaging new counsel was due to the circumstances surrounding Valencia's release from prison, which had caused a significant delay in the engagement of counsel. The court held that these circumstances were exceptional and warranted the adjournment of the trial date. The court also found that the delay would not cause significant prejudice to the Crown and that the public interest in the administration of justice would be served by granting the application.

The application was therefore granted, and the trial date was vacated. The court ordered that the trial be re-listed for a date to be determined. The court also ordered that the Crown provide the pathologist with all of the relevant material in a timely fashion and that Valencia be given sufficient time to engage new counsel.

Orders