R v Warwick (No.32)
[2018] NSWSC 1105
•16 July 2018
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Warwick (No.32) [2018] NSWSC 1105 Hearing dates: 16 July 2018 Date of orders: 16 July 2018 Decision date: 16 July 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Application for adjournment refused
Catchwords: CRIMINAL PROCEDURE – fifth adjournment application by the accused – application made orally on the morning of re-commencement of the trial – not in the interests of justice for the trial to be further adjourned – application refused Legislation Cited: Criminal Procedure Act 1986 Cases Cited: R v Warwick (No.30) [2018] NSWSC 1051 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown
Leonard John Warwick (Accused)Representation: Counsel:
Solicitors:
K McKay / G Christofi (Crown)
A R Conolly / E Ramsay (Accused)
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)
File Number(s): 2015/222068 Publication restriction: Not to be published until further order of the Court. Non publication order lifted on 14 February 2020.
EX TEMPORE Judgment (t.65)
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Application is made orally by the Accused this morning for an adjournment of the trial. This is the fifth application for an adjournment and the third in the month of July.
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In the period between 3 July 2018 and 6 July 2018, I heard the June Adjournment Application made by the Accused. On 13 July 2018, I delivered reasons for the decision I made on 6 July 2018 refusing to adjourn the trial: R v Warwick (No.30) [2018] NSWSC 1051.
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One of the bases which the Court was asked to consider, as grounds for an adjournment of the trial during the June Adjournment Application, was that the DPP, in the right of the Crown, had failed to properly disclose documents and information which he was obliged to do by s 142 of the Criminal Procedure Act 1986, or else at general law. For the reasons I expressed in R v Warwick (No.30), I did not uphold that submission.
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It became apparent in the course of the hearing of that application, that on Friday 29 June 2018 and Monday 2 July 2018, and on the morning of Tuesday 3 July 2018, the Commissioner for New South Wales Police (“the Commissioner”) produced a significant number of pages (about 10,000) of documents in answer to subpoenas which had been issued by the Accused in the period between 17 April 2018 and 1 June 2018.
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Prior to 3 July 2018, a significant number of packages of the documents had been produced, although the quantity of the pages in that production has not been revealed to the Court.
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On 6 July 2018, the Court ordered that the hearing of evidence in the trial was to recommence today at 10am. Upon the trial reconvening to recommence the taking of evidence, application is made orally on behalf of the Accused for a further adjournment. The basis for that adjournment is that the recently produced volume of documents by the Commissioner have not all been able to be read and, accordingly, the cross‑examination of, at least, the initial five witnesses is not completely prepared.
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It is unnecessary in this judgment to go back and recount all which has preceded today in the steps being taken in preparation for the trial. It is always a matter for lawyers for an accused to decide how they will go about their preparation for trial.
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Accordingly, in these remarks, I do not pause to consider any issue of appropriateness relating to how the lawyers for the Accused have chosen to go about their preparation for trial. However, what is clear is that the significant volume of documents produced by the Commissioner has resulted from subpoenas issued on behalf of the Accused, formulated in terms chosen by the Accused, and seeking documents agreed to be produced by the Commissioner, or else the subject of rulings by this Court.
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The timing for the filing and service of the subpoenas is a matter determined entirely by the lawyers for the Accused. It is not a matter for the Court to have determined that timing. If, as a consequence of the timing selected by the lawyers for the Accused, the width of the searches required to produce the documents nominated, and the length of time taken for the documents to be produced, the lawyers for the Accused have not been able to read all of the documents, then that is a matter which has arisen as a consequence of the manner of the conduct of the preparation for the defence case, and is not a matter which I regard as significantly impacting upon the proper and efficient conduct of the trial.
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This trial has now been adjourned on three occasions. It was initially fixed to commence on 19 February 2018. It was then adjourned to 14 May 2018. The trial commenced on 15 May 2018 when the Crown opened its case and the Family Court file was tendered.
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In order to enable the further preparation of the matter by the Accused, the taking of evidence was adjourned to 9 July 2018. Because the Motion for adjournment dealt with by orders made on 6 July 2018 had occupied a substantial part of that week, I again extended the time for the commencement of evidence in this trial by a further week.
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I observe that there has been, in my assessment, an adequate period for the preparation of the cross-examination of the witnesses which the Crown proposes to call in the first group of witnesses. In my view, the interests of justice compel the commencement of this trial.
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If, for some reason, the content of one or other of the pages of documents produced by the Police, which were unknown at the time of the cross-examination of any one or more of the Crown witnesses, is demonstrated to be relevant to the evidence they gave and the issues in the proceedings, then application can be made for that witness to be recalled.
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The application made orally this morning for an adjournment by the Accused is refused.
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Amendments
31 August 2018 - Addition of transcript reference.
18 February 2020 - Non publication order lifted on 14 February 2020.
Decision last updated: 18 February 2020