R v Warwick (No.5) - [2018] NSWSC 70

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No.5) [2018] NSWSC 70
Hearing dates: 5, 6 and 8 February 2018
Date of orders: 09 February 2018
Decision date: 19 February 2018
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) Trial date of 19 February 2018 vacated.
(2) New trial date fixed for 14 May 2018.

Catchwords: CRIMINAL – Procedure – Application to vacate trial date – late change of lawyers insufficient reason – late service of extensive Crown material without explanation – interests of justice
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Family Law Act 1975 (Cth)
Cases Cited: R v Alexandroiao (1995) 81 A Crim R
R v De Silva [2016] NSWSC 499
R v Warwick (No.2) [2017] NSWSC 1225
R v Warwick (No.3) [2017] NSWSC 1836
R v Warwick (No.4) [2018] NSWSC 69
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Accused)
Representation:
Counsel:
K McKay / G Christofi (Crown)
A Bellanto QC / R Thomas (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)

File Number(s): 2015/222068
Publication restriction: Not to be published until after return of verdict by Jury or further order of the Court. Non-publication order lifted on 14 February 2020.

Judgment

Leonard John Warwick was arraigned in this Court on 3 March 2017 upon an Indictment which contained 24 counts. To each of these counts Mr Warwick (“the Accused”) pleaded “Not Guilty”.
The counts on the Indictment may be summarised in the following way:

4 counts of murder contrary to s 18(1)(a) of the Crimes Act 1900;

2 counts of exploding an explosive device which destroys or damages a building with intent to murder a named individual contrary to s 28 of the Crimes Act;

1 count of placing an explosive substance into a vehicle with intent to commit murder, contrary to s 30 of the Crimes Act;

1 count of maliciously placing an explosive substance near a building with intent to damage that building, contrary to s 204 of the Crimes Act, and

13 counts of maliciously, via an explosion, causing grievous bodily harm to named individuals contrary to s 46 of the Crimes Act.

In addition to these 21 counts, there are three further counts on the Indictment which are charged in the alternative.
Although, as explained below, the criminal conduct underlying the charges occurred between 1980 and 1984, the accused was first arrested and charged on 29 July 2015. He has been in custody ever since.
After the accused was arraigned on 3 March 2017, the trial, which was anticipated to take about six months, was fixed to commence on 19 February 2018. Other orders were also made to ensure that the proceedings would be ready for trial at that time.
On Friday 2 February 2018, Mr Alan Conolly, in his capacity as the solicitor for the accused, filed a Notice of Motion in which the following orders were sought:

that the hearing listed to commence on Monday 19 February 2018 be vacated; and

that the matter not be listed for hearing before January 2019.

Because of the proximity, 2 weeks, to the commencement date of the trial, the Court fixed the Motion for urgent hearing on Monday 5 February 2018. At the conclusion of that hearing, after receiving evidence from both parties and submissions from counsel, the Court reserved judgment and indicated that judgment would be delivered orally on Thursday 8 February 2018 at midday.
On the evening of 5 February 2018, the Court received an application from Mr Conolly for leave to re-open the hearing of the proceedings to tender additional evidence. The Court heard that application at 10am on Tuesday 6 February 2018. The application was granted, additional documents in about ten volumes were tendered, and the Court indicated that its judgment remained reserved and would be delivered as previously fixed at midday on 8 February 2018.
It is appropriate to note that the accused was in attendance by audio visual link (“AVL”) at the application on 5 February 2018 but the Court was informed that because he was in the process being transported between correctional centres on 6 February 2018, it was not possible for him to be present by AVL at the hearing on 6 February 2018. Mr Conolly indicated that it was not necessary for the accused to be present for that hearing. The transfer was at the request of the accused and occurred after consent orders were made by the Court: see R v Warwick (No.4) [2018] NSWSC 69.
On Wednesday 7 February 2018, whilst judgment was reserved, the Court was sent by email a number of further affidavits of a solicitor, Ms Ramsay, a member of the firm A R Conolly & Co. The Court was told that the accused wished to rely on these in support of his application upon which the Court had reserved its judgment. Further affidavits followed on the morning of 8 February 2018.
When the Court sat on 8 February 2018, for the purpose of delivering its reserved judgment, senior counsel for the accused sought to rely upon the four affidavits which had been sworn on 7 and 8 February 2018, and to tender a further document contained in a number of volumes. As the accused was seeking leave to re-open his application, the Court admitted some, but not all, of the affidavit material, being evidence that could not have been obtained with reasonable diligence by the time judgment was reserved. The balance of the material which was rejected did not fall into that category. The Crown opposed any grant of leave to re-open the application.
At the conclusion of the evidence and further submissions on 8 February 2018, the Court again reserved its decision until 9.30am on Friday 9 February 2018. On that day, the Court pronounced the orders set out below, and indicated that reasons would follow:

1.   The date fixed for the trial of R v Warwick to commence, being 19 February 2018, is vacated.
2.   The trial of R v Warwick is fixed to commence on 14 May 2018.
3.   In the event that the parties are able to agree upon an earlier date for the commencement of the trial, grant leave to the parties to notify the Court of that agreed date on or before 19 February 2018.
4.   Order that the Crown serve on the accused on or before 12 midday 16 February 2018, the following items referred to in the statement of Det. Snr. Const. Natasha Dowson dated 6 December 2017, which consists of 68 pages:
(a)   the USB identified on page 16 of her statement containing electronic versions of the worksheets; and
(b)   paper copies reproduced in colour of each of the 43 worksheets referred to in her statement.
5.   The Crown is to serve all further material upon which it proposes to rely as evidence in the trial by no later than 12 midday 16 February 2018.
6.   Without leave first being obtained from the Court, the Crown is not to serve any further material which it proposes to lead as part of its case in chief against the accused after 12 midday on 16 February 2018.
7.   Adjourn the proceedings for pre-trial hearing and directions to 10am on 19 February 2018.
8.   Direct that the accused be present on that day by AVL.
9.   Order the Crown and the lawyers for the accused to notify each other by letter or email by 12 midday 16 February 2018 of all matters including applications, notices of motion, pre-trial rulings or other pre-trial requirements which each consider it necessary for the Court to determine prior to the commencement of the trial.
10.   Direct that when such notification is made, a copy of that notification is forthwith to be provided to my Chambers.

These are the reasons for those orders which were made on 9 February 2018.

Nature of the Crown Case

The Crown case is that in the period between March 1979 and April 1986, the accused and his former wife, Andrea Blanchard, were engaged in strenuously contested proceedings under the Family Law Act 1975 (Cth) with respect to:

who should have the custody of and what access arrangements were appropriate for their baby daughter, Trudi;

adjustment of property interests including, but not limited to, the matrimonial home at Tallowood Avenue, Casula.

These proceedings, although initially commenced in the Liverpool Local Court, were transferred to the Parramatta Registry of the Family Court of Australia in 1979.
It is the Crown case that in the period between February 1980 and July 1985, there were five discrete episodes of criminal conduct involving a high level of violence to individuals who were connected to the Family Court proceedings, and who had behaved in a way which the accused perceived as being contrary to his interests in those proceedings.
Included in this group of individuals were Ms Blanchard’s brother, who was shot and killed in February 1980 and Justice David Opas – who was shot and killed on 23 June 1980; in 1984, Justice Gee whose house was destroyed by an explosion, causing Justice Gee to be seriously hurt; and in July 1984, Justice Watson, whose house was destroyed by a bomb which killed his wife and seriously injured him.
It is the Crown case that Justices Opas, Gee and Watson had each heard aspects of the accused’s Family Court proceedings and had made orders or given decisions which were contrary to the accused’s interests.
The fifth episode is one where the Crown alleges that on 21 July 1985, the accused placed a bomb at the Kingdom Hall of the Jehovah’s Witnesses at Casula, which exploded whilst members of one of the Jehovah’s Witnesses congregations was holding a meeting at that Hall. It is the Crown case that members of that particular congregation had assisted Ms Blanchard to move to a location on the mid-north coast of New South Wales with her daughter, the address of which was concealed from the accused. The Crown case is that the accused made enquiries of one or more members of the congregation to obtain the address of his wife and daughter - which those congregation members declined to provide. When the bomb exploded at the Kingdom Hall, one person was killed and 13 people were seriously injured.
There are two further episodes of criminal conduct relied on by the Crown in the indictment. The first is an incident in February 1985, when a bomb was found in a vehicle parked outside a house at Northmead which, the Crown alleges, was previously the home of the solicitor who acted for Ms Blanchard in the Family Court proceedings and who was at that time engaged in attempting to enforce Family Court orders that would have had the effect of depriving the accused of the former matrimonial home in which he was then living.
The second of these two episodes is an event in April 1984, when a bomb was placed outside, but adjacent to a support pillar of, the multi-storey building which then housed the Parramatta Registry of the Family Court of Australia. That bomb exploded and damaged the building.
These seven episodes are linked by the Crown as relating to proceedings in the Parramatta Registry of the Family Court of Australia, by reason of the identity of the targets. It is the Crown case that these offences are linked, that they were all perpetrated by the same person, and that they did not occur as a matter of coincidence.
The Crown’s case includes evidence that investigators have, through their enquiries, eliminated any other likely suspect for the commission of these offences. The Crown says that by application of various rational search criteria to the files of litigants engaged in contested litigation at the Parramatta Registry of the Family Court during the relevant period, and by reference to other facts, matters and circumstances, it can eliminate any other individual as being a likely perpetrator of these crimes.
As well, the Crown case forensically links the accused to the Kingdom Hall, by the presence of bloodstains containing his DNA apparently from a break-in one week before the bomb exploded.
The Crown’s case includes it leading the evidence in relation to each of the seven episodes of criminality as being evidence not only in respect of that episode, but in respect of each other episode on the basis that the jury would be persuaded that it is unlikely that these events occurred coincidentally. The Court has permitted this to occur: R v Warwick (No.2) [2017] NSWSC 1225.
The Crown case is very largely a circumstantial one that points to a range of facts and circumstances. The Crown will submit to the jury that it ought to conclude that the perpetrator of each of these offences and each of the discrete episodes was the accused.

Case of the Accused

The accused has entered pleas of not guilty to each of the charges on the indictment.
Through his counsel, Mr Richard Thomas, the accused has made it plain that he denies that he was in any way involved in the criminal conduct outlined in the seven episodes which make up the Crown case. He denies that he had any of the knowledge or technical skills necessary to carry out these crimes, particularly those involving the use of the different kinds of explosives used, and the particular methods of detonation.
Whilst the accused requires the Crown to prove each of the seven episodes of criminal conduct, his counsel indicated to the Court that the accused does not dispute that the seven episodes of criminal conduct occurred nor that the facts, if proved, would constitute the offences alleged. However, in so informing the Court of that position, counsel made it plain that the accused knew nothing of, and was not involved in any way with, the offences.
The accused has not served an alibi notice, and does not rely on any alibi evidence. Nor has the accused given notice of any intention to adduce evidence of substantial mental impairment. Accordingly, the Court can proceed on the basis that neither of these matters will form any part of the trial.
The determination of the application for adjournment proceeds on the basis that the accused is entitled to the presumption of innocence with respect to each of the counts on the indictment.

Chronology Since the Arrest of the Accused

It is now appropriate to set out the chronology of events in the Local Court and in this Court since the accused was arrested.
The accused was arrested on 29 July 2015, and charged with each of the offences upon which he is now indicted. The arrest occurred 35 years after the occurrence of the first charge in the Indictment, and 30 years after the occurrence of the last charge in the Indictment.
On the day following his arrest, 30 July 2015, the accused was brought before the Campbelltown Local Court where he was remanded in custody. Bail was not applied for, and it was formally refused. The accused has remained in custody at all times since then.
Although, on 30 November 2015, a release application seeking bail for the accused was filed in the Local Court, when it was listed on 14 January 2016 for hearing, it did not proceed. That application has not been pursued. A release application filed in this Court during 2017 has not been pursued.
It is unclear precisely when the Crown brief was completed served. In many of the exhibits provided to the Court, the Police Brief, as directed to be served by the Local Court, seems to have been served in September 2015, in both paper and electronic form. The police Brief, I am satisfied, was paginated, accompanied by a comprehensive index and was ordered by rational categories. By no later than 23 August 2016, when counsel briefed for the accused, Mr Richard Thomas, filed a 27 page submission in the Local Court in support of an application pursuant to s 91 of the Criminal Procedure Act 1986, that the accused be permitted to cross-examine two specified witnesses as part of the committal proceedings, he must have read the brief and had a reasonable understanding of the Crown case otherwise he could not have made the submissions which he did.
That submission included the following as an outline of the substantial reasons why the two identified witnesses should be required to attend for cross-examination:

“The Crown case is circumstantial. It is based upon the assertion that the accused was motivated to attack persons he perceived as constituting a threat to his relationship with his daughter Trudi and that the primary focus of his attack was the Family Court and, in particular, the Family Court judges dealing with his case. The police investigation of other possible suspects (the Joint Federal and State Bomb Task Force (‘JBTF’)) identified 1651 possible suspects, being family law litigants whose matters had been dealt with by the three judges who were targeted, Judge Opas, Judge Gee and Judge Watson. Of these 1651 possible suspects, the Crown Brief shows that 97 were selected for investigation and that from these, 15 were identified as possible suspects. Of these 15, 12 were the enclosed, leaving Mr Warwick and two other persons as potential suspects.
The process of identification of a pool of suspects (here 1651), together with the process applied to refine that pool down to three and then the process of elimination of everyone but Mr Warwick, is of fundamental importance to the Crown case. The existence of other potential suspects provides a reasonable exculpatory explanation which provides an answer to the Crown’s circumstantial case against Mr Warwick. In the absence of that circumstantial case there is no direct evidence linking Mr Warwick to the offences.
The process of identification and, importantly of elimination of other possible suspects is opaque.
Kevin Woods and Robert King, of the JBTF, provide the evidence in relation to the identification and elimination of these other possible suspects who were involved in family court litigation during the period 1976 to 1984 and are in the appropriate position to clarifying the process, so that the accused is aware of the precise case against him and he can be assured of a fair trial.” (sic)

That application was granted and on 6 September 2016, a direction was made for the two witnesses to attend a committal hearing.
The Local Court fixed a two week period commencing 5 December 2016, for the committal hearing.
On 5 December 2016, the two identified witnesses attended and were cross‑examined in the presence of the accused, by his counsel.
As is apparent from the submissions of the accused’s counsel set out above, the subject matter of the cross-examination was the elimination exercise upon which the investigating police had embarked, and the detail of the process by which it was undertaken.
At the conclusion of the examination of the witnesses on 5 December 2016, the Crown was ordered to file written submissions with respect to the issue of whether the evidence up which it relied was sufficient to warrant the committal of the accused to stand trial by the following Wednesday, 7 December 2016. The matter was listed for determination on 14 December 2016.
On 9 December 2016, submissions prepared by Mr Thomas, counsel for the accused, were provided to the Local Court. These submissions replied to the Crown submissions and dealt with the question posed for the Magistrate as to whether the accused ought be committed for trial.
Annexed to the submissions was a detailed chronology referring to various parts of the Crown brief by page number and reference, including the noting of inadequacies in the evidence. In particular, the submissions emphasised the lack of physical evidence from the crime scenes linked with the accused, and the circumstantial nature of the proceedings.
On 14 December 2016, for the reasons which were delivered on that day, the presiding Magistrate committed the accused to stand trial in the Supreme Court.
The matter was first mentioned in the Supreme Court on 10 February 2017 before the arraignments Judge, and was stood over to 3 March 2017, before me. By that time, I had been appointed to preside over the trial. The accused was arraigned before me and entered pleas of “Not Guilty” to each count on the Indictment.

In the course of the directions hearing conducted on that day, counsel for the accused, Mr Thomas, informed the Court that he had had the opportunity of familiarising himself with all of the material that had been served up until then, and that he had held a brief from the start of the committal proceedings. Counsel for the accused informed the Court that he had been provided with a large volume of material in the matter, totalling approximately 100 volumes, but that he understood that not all of that material would be contained within the Crown brief, or else would be tendered in evidence.
He informed the Court that his client totally denied any involvement in the seven criminal episodes alleged, but that there would be no dispute with respect to the Crown case insofar as it alleged and sought to prove that the events had happened. By way of example, counsel for the accused informed the Court that it would not be in issue that Justice Opas had been murdered by being shot on the date and at the time and in the circumstances outlined in the Crown case. However, the issue was that his client was not involved at all.
He also informed the Court that there would be a real issue about whether, as the Crown alleged, his client had knowledge of explosives, welding and other skills necessary to have undertaken the conduct alleged against him.
The Court enquired of the parties as to what issues were likely to arise and which could be dealt with by pre-trial determination. The Court was informed that there would be a question about tendency and coincidence evidence, that there would be a question with respect to whether the Crown could rely upon the evidence of people who were dead or were no longer available to give evidence and, if so, what the content of that evidence would be, and finally, that the accused would wish to contest the joinder of all counts in the Indictment together, and the holding of a single trial with respect to all counts on the Indictment. He sought a separation of the counts on the indictment.
A further discussion took place about the fixing of a trial date on the basis that the Indictment remained as presented by the Crown. The Crown and counsel for the accused agreed that realistically, having regard to the need to determine pre-trial matters, that the earliest the proceedings could be listed for trial in respect of all counts, was 2018. The Court fixed the trial to commence on 19 February 2018. The Court reserved any question with respect to a commencement date for the trial in the event that any of the counts on the Indictment were separated.
The Court then made orders for the further progress of the matter. The Crown was ordered to file and serve all relevant documents for both the pre‑trial hearing and a Notice pursuant to s 142 of the Criminal Procedure Act by 23 June 2017. The accused was ordered to file and serve all documents, including written submissions, relating to the pre-trial matters and a Notice of the defence case pursuant to s 143 of the Criminal Procedure Act before 28 July 2017. The Court fixed oral argument to take place in relation to all pre‑trial issues in the week commencing 14 August 2017. In the events which occurred, at the request of the parties, the hearing in respect of the pre-trial issues occurred in the week commencing 21 August 2017. Both parties were granted liberty to apply to the Court on two days’ notice in the event that any further orders were required.
On 23 June 2017, the Crown filed and served coincidence and tendency Notices together a significant volume of material including Crown case statements in relation to each of the seven separate events, and a summary of the Family Court proceedings together with written submissions. The Crown also served Notices seeking to rely on the statements of unavailable witnesses.
Counsel for the accused served written submissions objecting to the admissibility of the tendency and coincidence evidence on 3 August 2017. Those submissions opposed the grant of leave to the Crown to rely upon the evidence identified in their Notices as either coincidence or tendency evidence, submitted that leave should not be granted to the Crown to adduce evidence of the kind identified in its notices pursuant to s 65 of the Evidence Act 1995, and s 285 of the Criminal Procedure Act, and further submitted that the Indictment should be severed into seven separate indictments each relating separately to the counts arising from each of the seven episodes.
On 21 August 2017, oral submissions took place on the question of the tendency and coincidence Notices and on the severance application. The submissions concluded in the course of that day and judgment was reserved. On 23 August 2017, oral submissions took place with respect to the evidence to be given by witnesses who were no longer available. Some significant measure of agreement had been reached between the parties with respect to that evidence, and the Court was called upon to give (and did give) rulings with respect to particular statements and reports upon which agreement could not be reached: see R v Warwick (No.3) [2017] NSWSC 1836.
At the conclusion of oral submissions on that issue, the Court embarked upon a general consideration of the steps to be taken to ensure that the trial would be ready to proceed on 19 February 2018, subject to any decision which might be made by the Court with respect to the tendency and coincidence evidence, and the separation of the counts on the Indictment.
A direction was also given with respect to the service of a Notice and Summary of Evidence proposed to be adduced by the Crown with respect to all relevant Family Court proceedings.
On 14 September 2017, the solicitors for the accused filed the defence response pursuant to s 143 of the Criminal Procedure Act. Insofar as it is relevant to the present application, it noted that Mr Richard Thomas of counsel had accepted the brief over a year before the Notice. It recorded that the accused did not intend to adduce evidence in support of an alibi nor did he intend to adduce evidence of substantial mental impairment.
In relation to expert witnesses, it recorded the following:

“At this time, the defence has engaged the services of two expert witnesses. It has not yet been decided if the defence will lead any expert evidence, however, if this is the case, the defence will serve any such reports on the prosecution in good time before the commencement of the trial.
The defence has engaged a DNA expert, Dr Brian McDonald, and ballistics and explosives (IED) expert, Francis Lawton.”

With respect to the accuracy of transcripts of prior proceedings, the Notice read:

“The defence does dispute the accuracy of the transcript of the Coroner’s inquest into the death of Graham Wykes, subject to the usual direction being given to the jury at trial.”

The Notice also indicated that the defence did not dispute the authenticity of any disclosed documentary evidence or any exhibit proposed to be led in evidence at the trial.
On 6 October 2017, the judgment in R v Leonard Warwick (No.2) was delivered. For the reasons there given, the Court gave leave to the Crown to lead the evidence described in its Notices as coincidence and tendency evidence. It rejected the accused’s application for separate trials of the counts on the Indictment.
At the time of delivery of judgment, the Court made an order that publication of the judgment be restricted until after the return of the verdict by the jury or further order of the Court. Like orders have been made with respect to each other interlocutory judgment in these proceedings, including this judgment.
On 13 October 2017, in accordance with the orders previously made, the Crown filed and served summaries of evidence, including summaries of the relevant Family Court proceedings, summaries of the records of the accused’s roster as a fireman, summaries of items located during search warrants, summaries of interviews provided by the accused and, as well, a proposed Agreed Statement of Facts in relation to injuries suffered by victims of the last occurrence, the bombing of the Kingdom Hall.
On 15 November 2017, the Crown served on the accused’s solicitor and counsel, a copy of the list of witnesses it proposed to call at the hearing in the order it was anticipated they would be called. Since that time, on a number of occasions of which the most recent was 6 February 2018, that list has been updated by the Crown. Included on that list were the names of witnesses who had died since their statements were taken, but whose statements the Crown intended to rely upon.
According to the evidence of Mr Conolly, between 2015 and a date in approximately mid-October 2017, a firm of solicitors, Havas & Dib, had acted for the accused. It seems that from about the middle or else late in October, Havas & Dib ceased to act for the accused.
On 24 November 2017, at the directions hearing fixed for that day, Mr Havas appeared. The accused was present by AVL. He was at that stage at Cessnock Correctional Centre.
It is appropriate to note that in the course of previous hearings, the accused’s attendance had been secured by AVL in accordance with a request made by his counsel. The Court was informed that the accused preferred to be present at these hearings by AVL rather than in person.
On 24 November 2017, Mr Havas appeared and mentioned the matter on behalf of a junior counsel, Mr Hughes. Mr Havas sought the Court’s leave to withdraw from the matter, and indicated that Mr Hughes also sought such leave.
The Court was informed by Mr Havas that, so far as he was aware, Mr Thomas of counsel was briefed directly in relation to the matter. The following exchange took place between Mr Thomas and the Court:

“His Honour:   … Mr Havas seeks to be excused from appearing or being retained in the matter. I haven’t asked for any detail of that at the moment, and none is supplied presently, but the issue will be, if I were to grant leave, subject to whatever difficulties exist, do you anticipate that that would impact upon the commencement of the hearing of the trial next year?
Thomas:   No your Honour. The difficulty I have at the moment is the immediate one of obtaining instructions and getting through to Mr Warwick.
…
His Honour:   So, if I granted Mr Havas leave to withdraw, do you anticipate that Mr Warwick would appoint another a solicitor?
Thomas:   At this stage, no your Honour, but I am hopeful that I will obtain some support along those lines, yes your Honour.
His Honour:   Thank you. Mr Havas, has Mr Warwick terminated your retainer?
Havas:   The basis of my seeking leave to withdraw, and if I can be quite candid, is Mr Warwick is not eligible for legal aid due to properties that he owns. I have been seeking the sale of a property in Mr Warwick’s name, a rental property, for some time. As your Honour can appreciate, my 143 notice was unable to be completed due to the fact that I needed to instruct experts and I needed funding. I am now at the point where I had retained Mr Hughes, Mr Thomas and, of course, for an extended period of time … And there has been no progress in relation to the execution of the documents relevant for the sale of the house and, as your Honour can appreciate, settlement does take, I think, about 6 weeks from memory and I am unwilling to continue to act in this matter unfunded and without …
…
His Honour:   So he has terminated your retainer and you have accepted that?
Havas:   Yes.”

Neither Mr Thomas nor the accused sought to correct any statement made by Mr Havas in the course of this exchange. On the basis of what I had been told by both Mr Havas and Mr Thomas, and without opposition from the Crown, I granted leave to Mr Havas to withdraw as the solicitor for the accused. In my view, there was no need to grant leave to Mr Hughes to withdraw because he did not hold a brief, Mr Havas having withdrawn it.
Extensive discussion then ensued between counsel and the Bench with respect to the preparations being made, the purpose of which was to ensure that the trial was ready to commence on 19 February 2018.
One of the issues which was raised on 24 November 2017 by the Crown, was a statement in the Notice under s 143 of the defence case which suggested that all facts, matters and circumstances relied upon by the prosecution were in issue.
An exchange took place with respect to that. It was in the following terms:

“His Honour:   I don’t understand that you don’t require the Crown to prove that these events occurred. Your statement was that, as you then understood it, you would not be taking issue with the fact that the events occurred, but the Crown has to prove them.
Thomas:   That’s right, precisely your Honour.
His Honour:   The proposition for which you are contending is that Mr Warwick did not carry out these acts and was not involved criminally in any way with the crimes which, undoubtedly, occurred.
Thomas:   Perfectly correct your Honour.
His Honour:   It seems to me, if I may say, and it is not a matter for me, but it seems to me beyond doubt – that a series of crimes occurred. The issue is whether your client is responsible for it.
Thomas:   Absolutely your Honour.
His Honour:   That doesn’t mean that all of the witnesses called to prove those crimes go without cross-examination, but it does mean, I think, that you accept that you will not put to the jury that a crime of the kind that the Crown relies upon did not happen.”

Further discussion elicited the fact that counsel for the accused may wish to explore some of the details of the facts led from witnesses called by the Crown, but not to put that the crimes as alleged by the Crown did not occur.
Further discussion ensued with respect to the ability of counsel to take instructions from the accused with respect to the various summaries and documents which had been served by the Crown, particularly in light of the fact that the accused was situated at Cessnock Correctional Centre.
In the course of that discussion, the accused raised a query in the following terms:

“Accused: The question of me having documents pertaining to this trial, where am I going to put them, what privacy have I got and what security have I got to ensure they are not interfered with?
…
Accused: Well, I won’t accept any documents at all unless I have privacy and security and the ability to study them, OK. I won’t accept them.”

Counsel for the accused, in light of his commitments and capacity to take instructions from his client, sought an extension of the time within which the accused was to respond to the Crown’s summaries until 12 January 2018. That extension was granted, and the proceedings were fixed for a final directions hearing on 2 February 2018. The purpose of that final directions hearing was to ensure that all outstanding issues had been addressed prior to the commencement of the trial.
At that time, counsel for the accused foreshadowed a formal application being made on 2 February 2018 with respect to an existing issue regarding the non‑publication of previous judgments of the Court and the proceedings which preceded those judgments. The Court indicated that any such application would be dealt with on 2 February 2018. It also indicated that it would need to be made formally and supported by an affidavit.
At the conclusion of the hearing, the Court directed the parties that if any further applications were to be brought with respect to the proceedings they were to be formulated in a notice of motion which was to be served by 12 January 2018, and that any such motion would be heard on 2 February 2018.

The Adjournment Application

Just after 6pm on 1 February 2018, the Court received, by email, a copy of an affidavit of Mr Alan Conolly. A reading of that affidavit suggested that an application for an adjournment of the trial would be made at the directions hearing on the following day.
On 2 February 2018, an oral application, supported by evidence, was made for an adjournment. Senior counsel, Mr A Bellanto QC was briefed by A R Conolly & Co to make the adjournment application. Mr Thomas appeared as junior counsel.
An outline of the course of the adjournment application has previously been set out at [6]-[12] above. It is necessary now to draw attention to some parts of the evidence of particular significance.
On 5 February 2018, in support of the application, a number of affidavits of Mr Conolly were read upon which he was cross‑examined. As well, the Crown relied upon an affidavit of Ms Stueckradt. She was not required for cross-examination.
Mr Conolly’s affidavit and oral evidence revealed the following:

he was first contacted about his willingness to accept instructions from the accused on either 23 or 24 January 2018. He met with Mr Richard Thomas of counsel between 26 and 28 January 2018. On 30 January 2018 he received instructions from the accused to act for him in relation to an application for an adjournment of the trial and, if successful, a subsequent application for bail;

although he was instructed to act for the accused on the trial, he was not prepared to act for the accused on the trial unless the trial date was vacated and he had the time required to read all of the material which had been served, undertake investigations, retain experts and receive instructions as to the accused’s defence. It was apparent from the terms of the Motion that Mr Conolly regarded one year as the appropriate period;

that Mr Thomas remained engaged as junior counsel;

Mr Conolly was not familiar with what had been done by Mr Thomas during the committal hearing, in particular with the submissions which had been filed and served with the Local Court;

he is unaware of the detail of what had occurred during the pre-trial hearings in the Supreme Court (including the proceedings dealing with the tendency and coincidence notices), including whether the accused had been present during any of the pre-trial hearings;

he had only read briefly through the Notice of Prosecution case served in June 2017; and

his knowledge of the proceedings is “mainly concerned about the fact that we’ve been presented with evidence far too late and the issue of what hasn’t been done”.

In his evidence, there was no reference to, or indication that Mr Conolly was aware of, the accused’s position with respect to the Crown case, of which the Court had been informed by Mr Thomas. Nor did Mr Conolly articulate with any specificity, any issues which he thought were likely to be raised at the trial by the accused, even if such issues were only provisionally formulated, on the basis of such knowledge as he then had.
In his affidavit, Mr Conolly drew attention to matters relating to the service of the Crown brief, to which it will be necessary to return, his belief that the previous solicitors for the defence had not undertaken appropriate preparation, and that the custodial arrangements with respect to access to the accused after he had been moved to Cessnock Correctional Facility in October 2017 had made it difficult to have conferences with the accused and to communicate with him. In addition, he drew attention to some matters with respect to the health of the accused and the lack of family support for the accused whilst he was incarcerated in Cessnock. Mr Conolly also said that his understanding was that the accused had not read the Crown brief, and that he did not have access to a computer to enable an electronic version of the brief to be read. He had not been given a paper copy of the brief.
It is convenient to note here that leave was granted by the Court on 2 February 2018, to file a Notice of Motion and serve it on the Commissioner for Corrective Services, by which the accused sought orders with respect to being returned to a correctional facility in Sydney. On 5 February 2018, the Court was informed that agreement had been reached between the solicitors for the accused and the Commissioner for Corrective Services for such a transfer to take place. The Court was further informed on 6 February 2018, that the accused was being transferred from Cessnock to the Metropolitan Remand and Reception Centre at Silverwater on that day. As it has turned out, the transfer did not occur on 6 February 2015, but it had been completed by 8 February 2018.

Mr Conolly’s evidence by way of an estimate was that it would take four weeks for the accused to read the Crown brief if he was able to review the material every day, that it would take him four weeks to review the evidence in the Crown brief with the accused and to obtain instructions from him with respect to it. He said it would require at least eight weeks for “investigations to be carried out by the solicitors … in relation to the documents and history within the Crown brief”. Those possible investigations were not otherwise particularised.
Mr Conolly then said that the defence would require three months to identify experts, qualify them and confer with them. He said this:

“The experts who should be retained are in the areas of pathology, including in relation to bodies submerged in water, blood (including groupings), DNA analysis, ballistics, explosives, particularly in relation to IEDs, weapons, identification of ropes, identification of bricks, fingerprints, voice identification, handwriting and Identikit identification.”

It was not stated, nor was it in any way articulated, what matters those expert witnesses would be asked to address, nor to what issue any such evidence would go. Rather, the assertion was a generalised one, seemingly touching on all possible areas of expertise which formed a part of the Crown case.
Mr Conolly also pointed to the fact that in his view, a proper defence of the proceedings required “a competent legal team, including at least two counsel”.
Finally, Mr Conolly made clear that he would not be able or willing to act in the defence of the charges for the accused “… on the basis of the current state of preparation of the defence”. He also referred to the ongoing service of material by the Crown. It is appropriate to now consider that matter.

Crown Service of Documents

The Notice of the prosecution case in compliance with s 142 of the Criminal Procedure Act was ordered to be served by 30 June 2017.
Section 142 of the Criminal Procedure Act is in the following form:

“142 Prosecution’s Notice
(1)   For the purposes of section 141 (1) (a), the prosecution's notice is to contain the following:
(a) a copy of the indictment,
(b) a statement of facts,
(c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial,
(c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement that the prosecutor intends to adduce at the trial,
(d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the trial,
(e) if the prosecutor proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary,
(f) a copy of any exhibit that the prosecutor proposes to adduce at the trial,
(g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the trial,
(h) if any expert witness is proposed to be called at the trial by the prosecutor, a copy of each report by the witness that is relevant to the case,
(i) a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person,
(j) a list identifying:
(i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor's possession and is not in the accused person's possession, and
(ii) the place at which the prosecutor believes the information, document or other thing is situated,
(k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness,
(l) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person,
(m) a list identifying the statements of those witnesses who are proposed to be called at the trial by the prosecutor.
(2)   The regulations may make provision for or with respect to the form and content of a statement of facts for the purposes of this section.
(3)    In this section,
‘law enforcement officer’ means a police officer, or an officer of one of the following agencies:
(a) the Law Enforcement Conduct Commission,
(b) the New South Wales Crime Commission,
(c) the Independent Commission Against Corruption.

As can be seen, the Court’s order requiring the Crown to serve a Notice in accordance with s 142, required the Crown to serve a statement of each witness whose evidence was to be adduced at the trial. A sensible application of this requirement, in this case, meant that the Crown did not have to serve again any of the statements which were contained in the 2015 Police Brief. The same would apply to experts reports which had been included in that earlier Brief. However, what was required was that by the end of June 2017, the Crown was to have served at least a list of the earlier witness statements which it intended to adduce at trial, together with all additional statements and expert reports which the Crown intended to adduce in evidence.
As part of its notice, the Office of the Director of Public Prosecutions said:

(d) … all statements and documents proposed to be relied upon at this time by the prosecution have been served as part of the Brief of Evidence. The Brief index (Annexure “C”) itemises material comprising the Brief of Evidence served to date.”

The Notice also said that “all expert statements have been served as part of the Brief of Evidence”. It further said with respect to the witnesses proposed to be called at trial, this:

“A copy of the list of witness statements is attached to this Notice (Annexure “E”). Please note that this Witness List is subject to review and additional witnesses may need to be called.”

The list of witnesses attached as Annexure E nominated 118 people, in alphabetical order, divided into two categories – namely police witnesses and civilian witnesses.
The Brief Index referred to as Annexure “C” consisted of 26 pages, arranged in a logical manner. The evidentiary material relevant to each episode was listed by reference to that episode - the episodes were listed chronologically; then came the entirety of the Family Court file relating to Ms Blanchard and Mr Warwick. The Brief also contained, by identified category, various other documents which the Crown proposed to tender. It included 30 documents described as “Witness Statements that relate across multiple incidents”. Each of the documents in the Brief were paginated.
Finally, the Index, which appears to be similar to that served by the Police in September 2015 during the committal proceedings, was supplemented by the addition of four more statements, each of which was served in June 2017 and the last of which was served on 22 June 2017. It appears that one of those statements was of an expert, Mr Robert Barnes, who had previously provided a statement.
The Notice of Prosecution case also required the Crown to serve a Statement of Facts. The Crown did so by serving Crown case statements in respect of each of the episodes of criminal conduct and also a Crown case statement describing evidence that related to multiple matters.
Of relevance in this last Crown case statement were the following paragraphs:

“24.   In 1984 Police asked the Family Court to provide them with the Court files for all defended matters heard at Parramatta between January 1976 and 4 July 1984, where the matter had been heard by any of Justices Opas, Gee or Watson. In response to this request, they were provided with about 1,600 files. A team of police officers reviewed each of these files in detail, a process which commenced in November 1984 and concluded in October 1985.
25.   A summary of the Court proceedings in relation to each of the files was created. The summary included the nature of the dispute, the various orders made and when they were made, the conduct of the litigants and other matters. Criteria were established whereby matters would be identified for further investigation, or be eliminated from requiring further investigation. These criteria included, for example, whether either party had threatened violence towards the family court or its judges, and whether either party had a background in military services, explosives or welding.
26.   By following this process, the police actively investigated hundreds of potential suspects. At the end of the year-long process, the police eliminated every suspect except three from the investigation …”

The Crown case statement identifies the accused and two other named individuals as the remaining suspects. The statement goes on to describe the police investigations with respect the other two named suspects, and the facts surrounding their potential involvement. It is the Crown case that these two individuals can be eliminated as suspects for the crimes with which the accused is charged.
It is to be recalled that two of the significant participants in the “elimination exercise” undertaken by the police in 1986, namely Messrs. King and Woods, were the subject of the application made by counsel for the accused pursuant to s 91 of the Criminal Procedure Act during the committal for leave to cross‑examine those former officers.
The evidence shows that since June 2017 a number of documents have been served. Some, but not all, of these documents have been served by way of ongoing disclosure by the Crown of material consistently with a prosecutor’s obligations, others are statements by existing witnesses formally adopting documents and statements previously provided, and some are new. Additional expert reports have been obtained and served. As well, at the request of Mr Thomas of counsel, the Crown has provided him with further copies of documents which had previously been served.
According to material put before the Court by the Crown on this adjournment application, all of the material upon which it proposes to rely has now been provided with the exception of a statement which may possibly become available as a result of further enquiries presently being made by police with respect to obtaining a sample of human hair that can be used for the purpose of mitochondrial DNA analysis. This further expert evidence does not seek to implicate the accused but, rather, seeks to identify whether another possible suspect in the murder of Justice Opas can be excluded as being the source of the hair. When and if such a report may appear is quite unknown.
Some, but not all, of the additional material has been tendered to the Court for the purpose of this application.
According to the Crown’s evidence which I accept as accurate, since 14 November 2017, it has served on the accused a total of 43 statements which had not previously been served, three expert reports or statements and 23 new documents or groups of documents
Three of the statements deserve some additional attention. Each relates to the elimination process engaged in by the police investigators in 2017. The author of two of the statements is Det. Snr Constable Lesa Pessotto, the other statement is that of Det. Snr. Constable Natasha Dowson. The three statements address the process undertaken by police in 2017 of elimination of other individuals who are possible suspects implicated for the offences involving Family Court judges and the Family Court building. Supporting material for these statements, namely the Family Court files for various of the individuals named, were also served. That supporting material was contained in about 10 volumes of material. Five of those volumes contained unpaginated bundles of copies of various Family Court files for named individuals.
When the proceedings were relisted on 6 February 2018, Mr Conolly tendered 15 volumes of paper which had been received in December 2017 and which, speaking generally, largely consisted of copies of Family Court files. Two of those volumes relate to documents from the accused’s Family Court file. A perusal of those indicates by reference to the footer, that they were part of the police brief at the committal and served in September 2015. Three of the volumes relate to proceedings in the Family Court involving a Mr Silvano Mariti, who was identified by police in the course of their early investigations as a possible suspect.
Two volumes relate to an individual variously named as Shoukat Abroo or Abdoo. Those volumes are referred to in one of the statements of Det. Snr. Constable Pessotto and contain running sheets, interview documents with Mr Abroo and details of his Family Court proceedings. According to the statement of Det. Snr. Constable Pessotto, and the attachments, Mr Abroo was eliminated as a suspect after considerable investigation, in part because he did not, in the course of his Family Court proceedings, come before Justice Opas. As well, information received that he had attended the funeral of Justice Watson’s wife was thoroughly investigated and found to be untrue.
The final two volumes contain a statement of Det. Snr. Const. Dowson who has undertaken investigations to answer three questions by reference to documents in the possession of police. The statement represents a follow up to work which was done at the time of the investigations in 1986 by the then Det. Snr. Constable Robert King and the material in his statement from 2016 with respect to the analysis he undertook to eliminate litigants in the Family Court as possible suspects. The questions which Det. Snr. Constable Dowson sought to answer were these:

which litigants at the Parramatta Family Court had their matter heard before or adjudicated by all three Justices: Justice Opas, Justice Gee and Justice Watson;

of these litigants, how many were represented by Ledlin Watts & Associates Solicitors in Family Court proceedings at the Parramatta Family Court between the years 1980 to 1985; and

for those litigants whose matters were heard or adjudicated at the Parramatta Family Court before Justices Opas, Gee and Watson, and involving representation by Ledlin Watts & Associates Solicitors, who are the involved parties.

Det. Snr. Constable Dowson noted that the relevant proceedings were those regarded as defended or contested proceedings.
I have carefully read the statement, and taken notice of the extensive annexures. In particular, the methodology of elimination, and how Det. Snr. Constable Dowson went about her task, has been explained in considerable detail. Although no particular submission was directed to this statement and the annexures to it, it is appropriate to notice some features of it. The first is that Ms Dowson seems to have set about, doing afresh, that which was done in 1986. The second is that her statement which consists of 68 pages (not including annexures or attachments) contains a description of the steps by which she undertook her elimination exercise. Critical to those steps was the creation of 43 separate worksheets. It was through the use of these worksheets that Ms Dowson eliminated individuals who did not meet her search criteria.
Although the statement notes that the 43 worksheets are contained on a USB memory stick, it does not seem that that USB memory stick, or any paper copies of the worksheets, were included in the material served by the Crown on the accused.
Whilst it is possible to follow the process that Ms Dowson undertook, which appears to be logical, from the description that she has given, it is not possible without those worksheets to be able to satisfy oneself that the work she has done produces the result for which she contends.
No explanation was provided by the Crown as to the absence, either in electronic or paper form, of the worksheets which seem to me to form an integral part of the process undertaken by Ms Dowson. As well, no explanation was provided by the Crown as to when it was that it was decided to undertake this elimination exercise, and why it was necessary. Accordingly, there was no explanation proffered which attempted to explain or justify the later service of the material, other than that it was served promptly by the Crown once it had been given to it by investigating police.
One further document to which attention was drawn in the context of the elimination process undertaken by police investigators, is the amended Crown case statement entitled “Evidence that relates to multiple matters”. In particular, that document relates to one of the eliminated suspects, Mr Silvano Mariti. Two annexures to the amended Crown case statement have been added. One contained a summary of evidence and information gathered by police and referrable to Mr Mariti and consisting of 47 pages, and the other consisting of 17 pages was a convenient table setting our chronologically the details of the Family Court proceedings involving Mr Mariti. Three volumes of documents constituted Mr Mariti’s Family Court proceedings and proceedings involving charges of contempt against him which were provided in December 2017, appear to support the contents of the table and summary description.
Of the statements provided by the Crown, many can properly be regarded as being of a routine or formal nature. By that I mean a number of the statements simply adopt as accurate various running sheet entries in police investigation records, or adopt as accurate transcripts of interviews undertaken with various witnesses, or else provide a logical overview for various parts of the investigation, the details of which have previously been disclosed.
Doing the best I can, without the assistance of any specific submissions from the accused, it appears that there are 12 of the statements served and three expert reports served, which can be properly regarded as entirely new material. I include in this the statements of Det. Snr. Constable Pessotto and Det. Snr. Constable Dowson.
In the balance of the statements, there is very little material which, upon my assessment, would constitute new or unexpected material. It is not material which seems to me to require a great deal of time to be spent in the preparation of the proceedings in order to understand the statements and assimilate them into the existing brief. There are other statements which, whilst new, may be regarded as providing some clearer and more chronological explanation of detail previously provided.
For example, the Crown has served a statement from Justice Gary Watts (as his Honour now is), who was the solicitor for Ms Blanchard in the Family Court proceedings involving the accused. A careful reading of that statement indicates that what has occurred is that the police have obtained a comprehensive overview statement from Justice Watts in a chronological way setting out all of the detail of the Family Court proceedings by reference to documents which had previously been provided and by reference to specific page numbers in the police brief of evidence.
No specific submission was addressed with respect to this document, but it hard to see in the context of all that has previously occurred that any significant prejudice arises from this comprehensive statement which pulls together a large amount of material from identified existing sources, in a comprehensive and chronological fashion which is in fact easier to read and understand than the earlier material.
The Crown also tendered a list providing an Order of Witnesses for trial current as at 30 January 2018. This order of witnesses comprises 248 witnesses whom it is anticipated will give evidence, or else in respect of which evidence will be adduced, in the order in which it is intended to call them. Of that number, 22 are deceased and, accordingly, the Crown will seek to rely upon statements previously given. As well, a number of witnesses are listed on multiple occasions – that is because they give evidence relating to more than one episode of criminal conduct, and it is convenient for the Crown to call them to give their evidence in part as the chronology of each episode unfolds so as to enable the jury to more readily follow the evidence in respect of each episode. When called more than once, these individuals are numbered as “new witnesses”. From correspondence, it appears that Mr Thomas, as counsel for the accused, has indicated to the Crown that he does not want to cross-examine a number, approaching 40, of these witnesses. That number may increase upon further consideration of the evidence.

However, even allowing for these matters, the Order of Witnesses demonstrates that the Crown now proposes to call many more witnesses than were referred to in its Notice served on the accused in June 2017.

Submissions of the Crown

The Crown opposed the application. It submitted that the accused had not established any proper basis for an adjournment of twelve months, and that it would be contrary to the interests of justice for the trial to be adjourned for such a lengthy period.
In support of this submission, the Crown pointed to the content of the pre-trial proceedings in this Court as demonstrating that, contrary to Mr Conolly’s evidence, the case for the accused was properly prepared by counsel who had a thorough and comprehensive knowledge of the brief, and there was no reason for the Court to accept that the additional material served by the Crown could not be assimilated by counsel prior to the commencement of the trial.

As well, the Crown relied upon the summaries of evidence which it had provided as being of significant assistance to the accused in understanding the Crown case thereby enabling an easier preparation of his defence. The Crown put, in a very general way, that the additional material which had been served since November 2017, was largely served to tidy up some “loose ends” and was more formal than substantive. To the extent that the statements were substantive, the Crown seemed to suggest that the contents would not be unmanageable for the accused.

Submissions of the Accused

The submissions of the accused in support of the application for adjournment were encapsulated in the following broad statement in Mr Conolly’s affidavit:

“From my experience as a lawyer of 52 years, there is no prospect of Leonard Warwick having a fair trial due to the conditions in which he has been held, the failure to provide facilities in which he could read and understand the Crown brief and provide instructions and participate in his defence and to provide instructions for investigations to be undertaken and experts retained to provide opinion and to participate in the defence of the charges before the Court.”

In the course of submissions, grounds which were specifically articulated were that the proceedings on behalf of the accused had not been properly prepared and that considerable work needed to be done so as to ensure that the accused’s case was ready for a trial. It was also submitted that the case was of such a size and complexity as would demand a competent legal team including senior and junior counsel. Finally, the accused pointed to the significant additional Crown material which had been served within the three months preceding the application which was required to be read and understood in the context of the issues which fell for trial.
It was submitted that these grounds were to be understood in the context of the custodial conditions of the accused, including his inability to access the Crown brief, the limited times when his lawyers could visit him, the difficult conditions in which legal visits were held, and his custodial location outside Sydney.
Further, in support, not just of the need to vacate the hearing date, but also of the proposed length of adjournment, about 12 months, Mr Conolly deposed, as I understand it, that it would take 16 weeks, initially, for the accused to read the Crown Brief, for Mr Conolly to review the Crown Brief with the accused and obtain instructions from him, and to carry out investigations in relation to the documents and history within the Crown Brief, during which time ongoing instructions would need to be obtained from the accused. After that period, Mr Conolly’s evidence was that the defence would require three months to identify experts, qualify them and confer with them. After that period, Mr Conolly anticipated that the Crown would require the opportunity to obtain its own expert evidence in response. As well, Mr Conolly pointed out that the period proposed by him would not be able to start until the Crown had completed service of its Brief and, in particular, any expert evidence and investigations upon which it intended to rely. It was based on this predicted time period that the accused sought an adjournment for a minimum of 12 months.

Discernment

I have considerable reservations about accepting the evidence of Mr Conolly in its entirety and according it full weight.
There are a number of reasons for this. The first is that, as Mr Conolly frankly conceded, he had not had the opportunity of having anything other than a superficial understanding of the Crown case, and was unaware of the interlocutory proceedings which had taken place including, so it seems, the issues which counsel for the accused had previously indicated to the Court would be the thrust of the accused’s case. Putting it differently, Mr Conolly was taking the approach that, so far as he was concerned, nothing at all had been done to understand the Crown case against the accused and for counsel to be in a position to conduct the defence of the case seemingly without a reasonably well informed basis for reaching that opinion
Secondly, the position adopted by Mr Conolly is directly inconsistent with assurances given to the Court by counsel for the accused during previous directions hearings about the state of readiness for trial. Having regard to the fact that that counsel, Mr Thomas, continues to be instructed for the accused, including by Mr Conolly on the adjournment application, there is no reason to doubt the accuracy and sincerity of counsel’s assessment, nor its ongoing validity.
Thirdly, Mr Conolly’s expression of opinion was made in ignorance of the rather detailed submissions made by Mr Thomas of counsel during the committal, and to this Court during argument on the questions arising from tendency and coincidence notices which were previously dealt with by this Court, which submissions demonstrated that counsel had a thorough knowledge of the Crown case, was on top of the brief with which he had been provided, and had a clear strategy for the defence of his client which strategy does not seem to have changed since Mr Conolly was instructed.
Fourthly, it seems that Mr Conolly’s approach, which underpinned the opinion expressed by him and noted above, was that he concentrated on “… what I can see hasn’t been done and what new [Crown] evidence has been presented”.
Fifthly, Mr Conolly was unaware of whether or not his client had been present during any of the pre-trial proceedings in this Court, nor during the committal proceedings. Accordingly, to the extent that he asserted that his client was unaware of the contents of the Crown Brief, that did not take into account the presence of the accused in court during the committal proceedings and during the pre-trial proceedings in this Court. To the extent that the adjournment application was based upon a necessity to undertake further investigations including retaining experts in the fields nominated, it is difficult to see what that exercise is intended to either address, or else produce by way of any opinion of use in the case for the accused. For example, any expert evidence relating to identification of ropes, voice identification and handwriting, appear to be at the very periphery of the Crown case if they are at all relevant. What may emerge from these experts in relation to the identified issues in the Crown case was not addressed by counsel for the accused. It remains elusive.
In R v Alexandroiao (1995) 81 A Crim R, the Court considered the issue of whether an adjournment ought to have been granted by a trial judge. The Court at p.291 said that the trial judge was entitled to consider whether the future proposed course “… would result in a reasonable possibility that material of substantial assistance to the accused’s case would be obtained if the trial were delayed in the way sought”. See also R v De Silva [2016] NSWSC 499.
The evidence adduced in support of the twelve month adjournment in so far as it proposed obtaining additional expert evidence did not establish that such an adjournment may (let alone would) establish any (let alone a reasonable) possibility that material of any (let alone substantial) assistance would be obtained for the accused’s case. This submission provided no compelling basis for the adjournment sought.
To the extent that Mr Conolly does not feel able to represent the accused at the trial fixed to commence on 19 February 2018, that is entirely due to the action, or perhaps more accurately, the inaction of the accused. If the accused was unhappy with the services of his first solicitor then there is no reason to suppose that he could not have terminated the retainer much earlier than he did. But there is no evidence of any discontent prior to the retainer of Havas & Dib being terminated by the accused at the latest by the end of October 2017. The basis of the termination of the retainer was said by Mr Havas to be that the accused was not adequately funding his defence. This explanation has not been challenged. The accused did not at that time terminate the retainer of Mr Thomas of counsel.
However, the accused did nothing at all about retaining any further solicitors for a period of about three months until approximately three weeks before the trial was due to commence. No explanation was proffered as to why the accused did nothing during that time. There was no evidence that he had asked Mr Thomas to assist him to find a firm of solicitors. There was no evidence or suggestion that Mr Thomas, notwithstanding his somewhat oblique reference to the issue in Court on 24 November 2017, had in fact asked the accused to instruct solicitors or additional counsel to assist him with the burden of preparing for, and presenting, the accused’s case at trial.
Nor is there any adequate explanation as to why the accused terminated the retainer of his previous solicitors. The only explanation provided to the Court was that the solicitors had not been funded. That explanation was provided to the Court in the presence of the accused, and there was no demur from him. The provision of funding for his defence is a matter entirely for the accused. However, if he refrains from funding one firm of solicitors, and does not take steps to instruct another solicitor for some months, in the critical period leading up to the commencement of his trial, then it cannot be said that the inability of the solicitor, only recently instructed, to be ready for trial is a matter upon which the Court should place significant weight. Particularly is this so, because the essential nature of, and the size of the Crown case against the accused was known to him by mid-2016 at the time when consideration was being given by his then legal team as to which witnesses, if any, they would seek to cross-examine during the committal hearings.
I accept that it may be desirable for an accused to have the legal representatives of their choice to act and appear for them at a trial. But that desire does not automatically mean that to ensure a fair trial the Court must always accommodate the accused in this respect without regard to all of other matters and circumstances.
A further matter upon which the accused relied was the late service of, and the volume of, additional material by the Crown at a time proximate to the commencement of the trial. There is no doubt that the volume of the material served was significant. It would take time for it to be read and absorbed by the accused’s counsel and any lawyer instructed for him.
However, an assessment of that material, in the context of the identified issues anticipated to be raised at the trial, and taking into account that only a part of that material can be properly categorized as being wholly new, necessitates a consideration of a reasonable length of time to enable competent counsel with background knowledge sufficient to appear at the trial to read and understand that material to ensure that when it is adduced in evidence, it can be properly addressed. There was no specific evidence adduced as to how long it was anticipated such a period would be. Mr Conolly estimated a period of four weeks for the accused to read the brief. No evidence was led about any estimate made by Mr Thomas, nor was his view advanced by senior counsel from the bar table. It is a matter for the Court to make as accurate an assessment as it can. This I have done.
One of the additional reports served by the Crown contained the results of additional DNA testing. It is a part of the Crown case that a week before the bomb exploded at the Kingdom Hall of the Jehovah’s Witnesses, a break-in had occurred by the person responsible for placing the bomb so as to reconnoitre the Hall. When the break-in was investigated, the police identified a number of areas of blood stains on a piece of carpet, and on some cardboard. It is the Crown case after DNA testing that this is the blood of the accused. The additional DNA testing which was done in November 2017 examined a number of other areas on the piece of carpet and the cardboard. Not all of the areas examined enabled a DNA profile to be recovered. Some did, and the DNA is said by the Crown to be that of the accused. One area which was tested revealed a mixed sample of DNA. The major component was identified as likely to be that of the accused. The minor component was unable to be matched to any identified or known individual. The Crown report was obtained within four weeks of the examination and testing being carried out. Senior counsel for the accused submitted that it would be of importance to the accused to have the opportunity to retain a DNA expert to address this additional report, because of the significance to the accused of there being some DNA from another person on the carpet, thereby raising a prospect of contamination of the sample, enabling an adverse conclusion to be reached about the accuracy of the entire sampling which has been undertaken.
Senior counsel submitted that, contrary to what had been said by the previous solicitors about having a DNA expert retained, in fact there was no report from such an expert. He submitted that it would be necessary for one to be identified and retained. It is appropriate that the accused have such an opportunity. However, on the evidence before me where the Crown expert carried out his work in no more than four weeks, there is no reason to conclude that any period much longer than that would be necessary for the accused. As well, it should be noted that the Crown’s DNA expert will be unlikely to be called to give evidence until towards the end of the Crown case. A period of four to six weeks will be adequate for the accused to address this issue. A similar period will be adequate to address the Crown expert report of Dr Brouwer who deals with the behaviour of, and recovery of the human skin and body after receiving one or more cuts and lacerations. Even though I have not been satisfied that the requisite test has been met with respect to all of the experts in the fields nominated as discussed above, and certainly not for the period claimed by the accused, I am satisfied that a more limited opportunity ought to be allowed for experts in these two identified areas.
The accused relied upon the difficult conditions of incarceration as having prevented him from properly preparing for his trial. There was some, but limited, evidence of these difficulties. It appears that for a period of up to six weeks after the accused was first transferred to Cessnock, that Mr Thomas of counsel had difficulty because he was not authorised to make telephone calls to the accused to discuss matters over the telephone with him. As well, what was said to be operational requirements of the particular correctional centre led to arranged legal conferences being cancelled at short notice, or without forewarning. Mr Conolly also drew attention to the fact that his legal conferences with the accused had been conducted in cubicles with a pane of glass between him and his client, in circumstances where he was unable to hand any document to his client.
There was no evidence led with respect to any specific difficulties in the custodial conditions of the accused prior to his transfer to Cessnock. Clearly, the accused does not have possession of a paper copy of the Crown brief. It is not possible to know why that is so. Equally, it is not possible to know why he does not have access to an electronic version of the Crown brief. Arrangements can be made for individuals who are in custody to have access to computers or devices which are configured to enable inmates of correctional centres to access electronic material. No information has been provided to the Court as to what arrangements have been sought to be made, and what attitude to those requests has been shown by the relevant correctional centre staff.
However, I accept that since the accused has been incarcerated in Cessnock, there has been disrupted access to his lawyers as a product of the conditions applying there to his incarceration and to an extent limited in time to about three months, that disruption has occurred from time to time.
One final matter which was emphasised, particularly by senior counsel for the accused was that the length and complexity of the anticipated trial meant that the defence of the accused required two counsel to be briefed, and instructed by a competent legal team. According to the transcript of November 2017, Mr Thomas had a similar but not identical view as to what was an appropriate number and legal or forensic skill for the proper defence of the accused. There is no reason to think that careful consideration had not been given to the matter at an earlier time. The defence notice under s 143 of the Criminal Procedure Act recorded that two counsel had been briefed. The matter of the number and legal skills of the lawyers to defend the accused is clearly a matter which did not first arise after Mr Conolly was instructed to act for the accused. It had been an integral part of the preparation of the accused’s defence in the latter half of 2017. If the correct number of lawyers, with the appropriate skill level have not been retained by 2 February 2018 to appear for the accused, no reason has been proffered as to why that is so. There is no suggestion that the accused was unaware of the fact that two counsel had been briefed by Havas & Dib. Nor is there any explanation as to why other counsel or lawyers had not been retained more promptly after Mr Hughes of counsel and Havas & Dib had their retainer terminated.
Whilst it may be desirable for the accused to have a team of lawyers to assist him in his defence, I would conclude that there was no reason why arrangements could not have been made very much earlier than the start of February 2018, and that the failure to make arrangements should not of itself and without more result in an adjournment for twelve months.
The granting of an adjournment, which includes the vacation of a hearing date for a long trial which had been fixed for about twelve months in all of the circumstances revealed by the evidence requires the balancing of a number of factors, many of which have already been mentioned. It is proper to keep in mind at all times that the trial of the accused should be fair. Other matters include the public interest generally in the finalization of charges against an accused, particularly in circumstances as here exist that the accused has been in custody for a little over 2 years and 6 months prior to his trial starting. The adjournment sought would extend that time by 12 months. There is a public interest, where as is here the case that the length of time since the events the subject of the proceedings occurred is very long, that witnesses have their evidence heard as soon as possible, and that the victims of the crime have the proceedings finalised as soon as possible. As well, There is also a public interest in having trials which have been subject to case management start on the date allocated particularly when a long trial is in prospect and the date has been fixed for a considerable period of time.

I have taken all of the matters into consideration. As well, I have carefully weighed the submissions of counsel. I have given particular weight to the need for the accused to have a fair trial. Having done so, it was clear to me that the trial could not fairly commence on the date fixed because of the late service by the Crown of the additional statements, documents and material. In all of the circumstances, As well, it could not fairly commence on 19 February 2018 if the accused was to have an opportunity to obtain expert material with respect to the late served reports identified earlier. I concluded, however, that it was not in the interests of justice for an adjournment of the length proposed to be granted. I was not satisfied that such prejudice as the accused may suffer was sufficient to warrant such an extreme course. The fact that the accused had chosen to instruct new lawyers who needed that time to undertake a range of enquiries was not established by the evidence as being necessary or reasonable. The delay proposed was very lengthy with all of adverse consequences which such delay would bring.
However, I was satisfied that an adjournment to enable the accused to prepare for the trial was necessary because of the need to allow more time for the reading and consideration of the evidence served by the Crown within the last three months. Any such adjournment would also alleviate the prejudicial consequences to the accused of the difficulties which he had in having contact with his counsel whilst he was incarcerated at Cessnock.
Accordingly, I was persuaded that it was in the interests of justice that the trial be refixed to commence on Monday 14 May 2018. Additional orders by way of case management were also necessary to ensure that the trial would be ready to proceed at that time.
Those are the reasons for the orders which were made on 9 February 2018, which were: :

The date fixed for the trial of R v Warwick to commence, being 19 February 2018, is vacated.

The trial of R v Warwick is fixed to commence on 14 May 2018.

In the event that the parties are able to agree upon an earlier date for the commencement of the trial, I grant leave to the parties to notify the Court of that agreed date on or before 19 February 2018.

Order that the Crown serve on the accused on or before 12 midday, 16 February 2018 the following items referred to in the statement of Detective Senior Constable Natasha Dowson, dated 6 December 2017, which consists of 68 pages:

the USB identified on page 16 of her statement containing electronic versions of the worksheets; and

paper copies, reproduced in colour, of each of the 43 worksheets referred to in her statement.

Order the Crown is to serve all further material upon which it proposes to rely as evidence in the trial by no later than 12 midday on 16 February 2018.

Without leave first being obtained from the court, the Crown is not to serve any further material which it proposes to lead as part of its case in-chief against the accused after midday on 16 February 2018.

Adjourn the proceedings for pre-trial hearing and directions to 10am on 19 February 2018.

Direct that the accused be present on that that day by AVL.

Order the Crown and the lawyers for the accused to notify each other by letter or email by midday, 16 February 2018 of all matters, including applications, notices of motion, pre-trial rulings or other pre-trial requirements which each consider it necessary for the Court to determine prior to the commencement of the trial.

Direct that when such notification is made, a copy of that notification is to be provided forthwith to my chambers.

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Amendments

18 February 2020 - Non publication order lifted on 14 February 2020.

Decision last updated: 18 February 2020

Medium Neutral Citation:	R v Warwick (No.5) [2018] NSWSC 70
Hearing dates:	5, 6 and 8 February 2018
Date of orders:	09 February 2018
Decision date:	19 February 2018
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	(1) Trial date of 19 February 2018 vacated. (2) New trial date fixed for 14 May 2018.
Catchwords:	CRIMINAL – Procedure – Application to vacate trial date – late change of lawyers insufficient reason – late service of extensive Crown material without explanation – interests of justice
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Family Law Act 1975 (Cth)
Cases Cited:	R v Alexandroiao (1995) 81 A Crim R R v De Silva [2016] NSWSC 499 R v Warwick (No.2) [2017] NSWSC 1225 R v Warwick (No.3) [2017] NSWSC 1836 R v Warwick (No.4) [2018] NSWSC 69
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Accused)
Representation:	Counsel: K McKay / G Christofi (Crown) A Bellanto QC / R Thomas (Accused) Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused)
File Number(s):	2015/222068
Publication restriction:	Not to be published until after return of verdict by Jury or further order of the Court. Non-publication order lifted on 14 February 2020.