R v Warwick (No 64)

[2019] NSWSC 163

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	R v Warwick (No.64) [2019] NSWSC 163
Hearing dates:	18-21 February 2019
Date of orders:	28 February 2019
Decision date:	28 February 2019
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	See [202] – [205]
Catchwords:	CRIMINAL LAW – application for stay of proceedings due to lack of legal representation – Dietrich principles – whether the applicant is indigent – whether the applicant is without fault – where a grant of legal aid has expired – where 50% of legal title to property is in the name of the applicant – whether the trial would be unfair without legal representation – trial is stayed to provide applicant with further opportunity to obtain legal aid grant
Legislation Cited:	Bail Act 2013 Crimes Act 1900 Criminal Procedure Act 1986 Family Law Act 1975 (Cth)
Cases Cited:	Attorney-General for NSW v Milat (1995) 37 NSWLR 370 Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Cummings v R (1994) 12 SR (WA) 172 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Grant v Edwards [1986] Ch 638 Green v Green (1989) 17 NSWLR 343 Jago v District Court of NSW[1989] HCA 46; (1989) 168 CLR 23 Maharaj v Jai Chand [1986] AC 898 McInnes v R [1979] HCA 65;(1979) 143 CLR 575 Moss v Brown [1979] 1 NSWLR 114 Philopos v R [2008] NSWCCA 66 Potier v R [2015] NSWCCA 130 R v Chaouk; Attorney-General for the State of Victoria (Intervener) and Others [2013] VSCA 99; (2013) 40 VR 356; R v Edwards [2009] HCA 20; (2009) 255 ALR 399 R v Joyce [2003] NSWCCA 280 R v Macdonald (No 4) [2016] NSWSC 486 R v Warwick (No 2) [2017] NSWSC 1225 R v Warwick (No.5) [2018] NSWSC 70 R v Warwick (No.7) [2018] NSWSC 236 R v Warwick (No.8) [2018] NSWSC 354 R v Warwick (No.21) [2018] NSWSC 654 R v Warwick (No.63) [2019] NSWSC 41 R v BK [2000] NSWCCA 4; (2000) 110 A Crim R 298 Regina v Kay (1998) 100 A Crim R 367 Shepherd v Doolan [2005] NSWSC 42 State of NSW v Canellis [1994] HCA 51; (1994) 181 CLR 309 The Queen v Connell (No.7) [1995] 13 WAR 283 Warwick v Legal Aid Commission of NSW [2018] NSWSC 1920 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Accused)
Representation:	Counsel: K McKay / G Christofi (Crown) A R Conolly / E Ramsay (Accused)   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused)
File Number(s):	2015/222068
Publication restriction:	Suppression order in relation to the names of the Accused’s wife and daughter: see R v Warwick (No.7) [2018] NSWSC 236.

Judgment (T.6040)

1. Leonard John Warwick is presently standing trial on an Indictment containing 24 counts. Those counts are as follows:

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

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

3. 1 count of placing an explosive substance into a vehicle with intent to commit murder, contrary to s 30 of the Crimes Act;

4. 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

5. 13 counts of maliciously, by an explosion, causing grievous bodily harm to named individuals contrary s 46 of the Crimes Act.

2. The three remaining counts on the Indictment are charged in the alternative to some of those described above. There is no need to further describe those alternative counts.

3. Upon arraignment on 3 March 2017, the Accused pleaded not guilty to each of the counts on the Indictment. At the commencement of the trial, when re‑arraigned, the Not Guilty pleas were maintained.

Subject Matter of the Trial

4. The Crown seeks to prove that, in the context of defended proceedings concerning the custody of their infant child, and entitlement to property, which were being conducted in the Parramatta Registry of the Family Court of Australia between the Accused and his then wife, Andrea Blanchard, the Accused was responsible for each of the seven events which can be described in the following way:

Event No.	Description	Count on the Indictment
1.	The murder of Stephen Blanchard at Revesby on or about 22 February 1980 (‘the Stephen Blanchard murder’)	Count 1
2.	The murder of Justice David Opas at Woollahra on 23 June 1980 (“the Opas murder”)	Count 2
3.	The bombing of Justice Richard Gee’s home in Belrose on 6 March 1984 (“the Gee bombing”)	Counts 3-4
4.	The bombing of the Family Law Court building at Parramatta on 15 April 1984 (“the Family Court bombing”)	Count 5
5.	The bombing of Justice Raymond Watson’s home at Greenwich on 4 July 1984 (“the Watson bombing”)	Counts 6-8
6.	The bomb found in a vehicle at the former home of Garry Watts on 10 February 1985 (“the Watts bombing”)	Counts 9-10
7.	The bombing of the Kingdom Hall of the Jehovah’s Witness church at Casula on 21 July 1985 (“the Kingdom Hall bombing”).	Counts 11-24

5. The case for the Crown is a circumstantial one which calls in aid coincidence and tendency reasoning.

6. A reasonable summary of the Crown’s case as it existed before the evidence in the trial commenced can be found in R v Warwick (No 2) [2017] NSWSC 1225. For the purposes of this judgment, these summaries are sufficient to understand the case which the Crown seeks to prove.

7. The Accused denies any involvement in the crimes alleged. He says that he did not have any knowledge of, or experience in, the design and construction of improvised explosive devices. He denies the existence of any motive of the kind alleged by the Crown, and as well submits that the evidence has, and will disclose the existence of other people who may have carried out the crimes with which he is charged.

Outline of the Course of the Trial

8. On 3 March 2017, shortly after the Accused was arraigned before me, and pleaded not guilty to each of the charges on the Indictment, the trial was fixed to commence on 19 February 2018. An estimate of six months was given. On 9 February 2018, for the reasons then given, the trial date was vacated and a new date of 14 May 2018 was fixed: see R v Warwick (No.5) [2018] NSWSC 70.

9. On 11 May 2018, the Court made an order that the trial be conducted by a judge alone. This order was made at the request of the Accused and with the consent of the Crown: see R v Warwick(No.21) [2018] NSWSC 654.

10. On 15 May 2018, the trial began when the Crown delivered its opening address. The taking of evidence was adjourned to 9 July 2018.

11. Ultimately, the evidence commenced in the trial on 16 July 2018 and has continued since that time.

12. The trial has occupied 103 hearing days during which 70 witnesses have been called by the Crown. The transcript to date occupies approximately 5,800 pages. 356 exhibits comprising documents, photographs, diagrams, maps and physical items have been tendered.

13. Prior to the trial commencing, 32 days were occupied with the Court hearing pre‑trial applications, resulting in 22 separate judgments. Since the trial began, there have been a further 41 judgments dealing with a wide range of evidentiary and related rulings.

14. So far as presently emerges from the material before the Court on this Notice of Motion, the Crown proposes to call a further 155 witnesses. However, only one of those witnesses, who is still to be called, is an expert witness. That expertise is in the field of handwriting and at present the Court has reserved a judgment as to whether that evidence will be permitted to be led.

Relevant Principles of Law

15. The principles in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 address the right to relief by way of a temporary stay of a criminal trial where an indigent defendant is charged with a serious criminal offence and who, through no fault of his or her own, find themselves without adequate legal representation. Where a court is satisfied that in the absence of legal representation, the trial would be unfair, the court has jurisdiction to adjourn or stay proceedings until legal representation can be arranged.

16. In State of NSW v Canellis [1994] HCA 51; (1994) 181 CLR 309, at 328, Mason CJ, Dawson, Toohey and McHugh JJ, said of the decision in Dietrich:

“… the principle established by the decision … is that a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings at a trial until such time as an indigent person charged with a serious criminal offence is provided with legal representation necessary for a fair trial or resources for such representation.”

17. In Attorney-General for NSW v Milat (1995) 37 NSWLR 370 at 373, the Court of Criminal Appeal (Gleeson CJ, Kirby P and Mahoney JA) in a joint judgment wrote:

“(1)   Australian law does not recognise that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense.

(2)   However, under Australian law, an accused has the right to a fair trial or, perhaps more accurately, a right not to be tried unfairly.

(3)   The courts have an inherent jurisdiction which extends to a power to stay proceedings in order to prevent the prosecution of a criminal proceeding which will result in a trial which is unfair.

(4)   Each case needs to be examined in the light of its own particular circumstances. However, ordinarily, where an indigent person has been charged with a serious criminal offence, if, by reason of lack of means and the unavailability of other assistance, that person is denied legal representation, the trial will be unfair.

(5)   Accordingly, where an indigent person has been charged with a serious criminal offence, and he or she is denied legal representation by reason of lack of means, and the unavailability of other assistance, the Court has jurisdiction to stay the proceedings until he or she is provided with legal representation necessary for a fair trial, or with the resources necessary for such representation.”

18. The common law recognises that an unrepresented accused may face disadvantages in the conduct of a trial: McInnes v R [1979] HCA 65; (1979) 143 CLR 575, at 590 per Murphy J. Nevertheless, in Australia, there is no right of an accused to be provided counsel at public expense: Dietrich at 297‑298 per Mason CJ and McHugh J; at 316 per Brennan J; at 330 per Deane J; at 343 per Dawson J; at 352 per Toohey J; at 364 per Gaudron J.

19. Instead, the question of legal representation is framed according to the imperative right of an accused to have a fair trial, or perhaps more accurately expressed as “… a right not to be tried unfairly …”: Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 at 29 per Mason CJ; 56 per Deane J; 72 per Toohey J; 75 per Gaudron J; Dietrich at 299 per Mason CJ and McHugh J.

20. Speaking generally, in order to obtain a stay of a criminal trial, the accused has the onus to prove:

1. that he or she is indigent;

2. that he or she is unable to obtain legal representation;

3. that to proceed without representation would render the trial of a serious criminal offence unfair; and

4. that he or she has not conducted themselves in a way which has unreasonably brought about any of these circumstances.

21. These general statements require some elaboration but in the application of the authorities discussed below, it is necessary to keep in mind the following overarching contextual considerations:

1. the attributes of a fair criminal trial cannot be, and have not been, listed exhaustively: Dietrich at 300 per Mason CJ and McHugh J;

2. the requirement of fairness is independent from, and additional to, the requirement that a trial be conducted in accordance with law: Dietrich at 363 per Gaudron J;

3. the inquiry as to whether a trial will be fair necessarily depends upon the circumstance of the particular case, but that does not mean that the Court exercises its inherent powers according to idiosyncratic notions of what is fair and just: Dietrich at 364 per Gaudron J;

4. a trial is not necessarily unfair because it is less than perfect (Dietrich at 365 per Gaudron J; Jago at 49 per Brennan J) or else simply because evidence which once existed has been lost or destroyed, or else because less than all of the material which could relevantly bear on the matter is available: R v Edwards [2009] HCA 20; (2009) 255 ALR 399 at [31];

5. it is of fundamental importance that unless the interests of justice demand it, courts should exercise their jurisdiction particularly to try individuals charged with serious criminal offences: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ; and

6. in judging fairness, the interests of the Accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with a criminal offence are brought to trial: Jago at 33 per Mason CJ; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 102 per Gibbs ACJ and Mason J.

22. Ordinarily, where a person charged with an indictable offence is indigent and unrepresented, they will be denied a fair trial: Dietrich at 337 per Deane J. These assumptions arise from the adversarial nature of a criminal trial, the complicated and obscure nature of criminal laws and rules governing evidence and the forensic contest that takes place between parties: Dietrich at 370 per Gaudron J.

The Accused has been Charged with a Serious Offence

23. The judgments in Dietrich, did not attempt to formulate any definition of what constitutes a serious offence. Nevertheless, in this matter, the Crown does not dispute that the Accused faces charges of a very serious nature. Self‑evidently, this is so.

24. Proceedings for a non-serious offence before a judge alone are among the circumstances where a criminal trial without legal representation can be deemed “…relevantly fair…”: Dietrich at 416 per Deane J. Lack of representation, in and of itself, in such a circumstance, does not result in an unfair trial.

The Accused has Established that he or she is “Indigent”

25. An Accused is regarded as indigent when the value of their assets and income fall “…well short…” of what is required to conduct a trial: R v Macdonald (No 4) [2016] NSWSC 486 at [95]. In order to be regarded as indigent, it should not be considered necessary for a person to charge their home to pay their legal expenses in a criminal trial: R v Joyce [2003] NSWCCA 280 at [23] per Shaw J.

26. Further, it is expected that an Accused will demonstrate they have been refused Legal Aid and other pro bono assistance: Craig v State of SA [1995] HCA 58; (1995) 184 CLR 163.

27. Any effort by the accused to establish that he or she is indigent will be undermined if full financial disclosure is not forthcoming: Macdonald (No.4) at [104] and [111].

The Conduct of the Accused was not Unreasonable

28. The question of fault, a term which is used interchangeably with unreasonable conduct, arises in cases such as Philopos v R [2008] NSWCCA 66 where the accused’s past conduct with his various legal representatives compelled the court to conclude that it was unlikely that the accused could give instructions that would enable any lawyer to appear for him. In that case, an adjournment was refused.

29. In Milat, the accused was found to be at fault where he attempted to frustrate the trial process by rejecting offers of financial assistance. The court ruled that a grant by Legal Aid NSW was sufficient to ensure the trial was not unfair. The court is not in a position to set a “…reasonable rate of remuneration…” for an accused’s legal representation: Milat at 380.

30. Every case needs to be examined in the light of its own particular circumstances. Not every instance of misbehaviour, improvidence or other fault on the part of the accused must automatically preclude an entitlement to a stay: Craig at [21].

The Accused is Without Legal Representation

31. There have been instances where a represented accused has made a successful Dietrich application. In R v Chaouk; Attorney-General for the State Of Victoria (Intervener) and Others [2013] VSCA 99; (2013) 40 VR 356, the provision of a solicitor to assist counsel for only two and a half days of a two and a half week trial was deemed inadequate and the accused’s application for a stay was upheld.

32. Although the Court cannot entertain questions as to the seniority and relevant degree of experience of the lawyers representing an accused, questions of competence are not entirely irrelevant to the application of the Dietrich principle. If the only representation available to an accused is manifestly inadequate, it would be appropriate to regard the accused as being, for practical purposes, unrepresented: Milat at 375.

There are no Exceptional Circumstances which would Prevent the Making of a Stay Order

33. There are some circumstances that may place an applicant outside of the range of considerations referred to in Dietrich including where the applicant is able to express and understand the case so as to remove the chance of a miscarriage of justice: Potier v R [2015] NSWCCA 130. For example, if the applicant is legally trained: Cummings v R (1994) 12 SR (WA) 172.

34. As well, there can be circumstances where a Dietrich application will be unsuccessful even when legal representation has been withdrawn and an applicant is without the requisite knowledge. This can arise if the court determines that the same difficulties would emerge as with the previous advisors, because the accused is not willing or able to give different or additional instructions: Philopos v R [2008] NSWCCA 66.

35. With these principles in mind, it is necessary to turn to the facts which I have determined to exist, and which are relevant to the issues posed on the Motion. These issues of fact relate to whether the accused is indigent, whether he is without legal representation due to any unreasonable conduct on his part, and whether the dealings of the Accused in respect to an application for legal aid, and allowing it to lapse, constitutes unreasonable conduct on the part of the Accused.

36. Ultimately, the Court needs to consider the exercise of the discretionary power which it has to order a stay.

Suppression Order

37. In R v Warwick (No.7) [2018] NSWSC 236, for the reasons I then gave, I made orders which suppressed the names of the family members of the Accused. To comply with those orders, and without meaning any disrespect to the members of the family of the Accused, I will refer to the Accused’s wife and daughter in this judgment by those descriptions rather than by their names.

Factual Context: Legal Representation

38. It is convenient to commence with the facts disclosed by the evidence about the legal representation of the Accused.

39. The Accused was arrested on 29 July 2015. He was first visited by Mr Eidan Havas, a solicitor, on 14 August 2015. This visit was arranged at the request of the Accused to his cellmate who had retained Mr Havas to appear for him. The Accused was again visited by Mr Havas on 27 August 2015. The Accused retained Mr Havas to act for him. Mr Havas initially operated under the corporate name of Havas Legal Pty Ltd t/as as Eidan Havas & Associates Lawyers and later, having entered a partnership, operated under the corporate name Havas & Dib Pty Limited. There is no need to differentiate between the particular corporate structures in which Mr Havas operated.

40. After his second visit, according to the records of the Department of Corrective Services, Mr Havas visited the Accused on a further eight occasions during 2015. Those records do not elaborate on the length of each visit, nor the particular facilities in which these visits occurred.

41. On 10 September 2015, on his visit to see the Accused, Mr Havas was accompanied by Mr Richard Thomas, a barrister who was subsequently retained to appear for the Accused. Mr Thomas was a barrister at the time whose principal place of practice was in Canberra and who from time to time appeared in criminal trials.

38. In 2016, whilst the matter was in the Local Court, Mr Havas visited the Accused on five separate occasions. On three of those occasions, Mr Havas was accompanied by Mr Thomas. Mr Thomas of counsel visited without Mr Havas on one occasion. An employed associate of Mr Havas also visited on one occasion.

39. As noted in R v Warwick (No.5) 2018 NSWSC 70 at [36]-[45], considerable legal work was carried out by Mr Thomas during 2016, including:

1. familiarising himself with the Police Brief sufficiently to obtain a reasonable understanding the prosecution case;

2. drafting and submitting a 27 page submission to the Local Court seeking orders pursuant to s 91 of the Criminal Procedure Act 1986 for the examination of two witnesses; and

3. conducting the committal proceedings including making comprehensive submissions about whether the Accused should be committed for trial. Annexed to those submissions was a detailed chronology which highlighted inadequacies in the evidence brought by the prosecution, including the lack of physical evidence at the scene of each crime linked to the Accused.

44. No complaint seems to have been made by the Accused about his interactions with lawyers until 11 December 2016, when he told his daughter that he had not seen his lawyer “… in months …”.

45. After the Accused’s committal for trial, and up to October 2017, Mr Havas visited on seven occasions. On three of those occasions he was accompanied by Mr Thomas. On one of those occasions he was also accompanied by Mr T.D.F. Hughes of counsel, whom Mr Havas retained as a second counsel for the Accused. On another occassion when Mr Havas visited the Accused without Mr Thomas, he took with him another barrister, Mr William Tuckey. Additionally, Mr Thomas visited on two separate occasions. On the same day as one of those occasions, 14 October 2017, the Accused was also visited by a Mr Ellie Sirrie, a solicitor who was then working for Mr Havas. Again, the Corrective Services records do not specify the length of any visits or whether in fact the Accused spoke with his lawyers.

46. According to his daughter, the Accused expressed some dissatisfaction to her during 2017 about Mr Havas not visiting him or keeping him informed about his case. However, as specific dates are not noted by the daughter, it is hard to draw any conclusions about the overall relationship between Mr Havas and the Accused up until 24 November 2017, when Mr Havas sought leave to withdraw.

47. The Accused did not seem to make any comment to his daughter which was adverse to his relationship with Mr Thomas. The satisfactory nature of the relationship in October 2017 between the Accused and Mr Thomas seems to be corroborated by the fact that the Accused confirmed to Mr Thomas that he wished him to appear at his trial fixed to commence in February 2018. A Costs Agreement signed on 30 October 2017 by the Accused supports this conclusion.

48. As well, an exchange of text messages between Mr Thomas and the daughter, as are set out in her affidavit of 17 February 2019, does not suggest any dissatisfaction on the part of the Accused with Mr Thomas.

49. According to the Memorandum of Fees issued by Mr Havas, the following is a short summary of what occurred on 14 October 2017, when Mr Sirrie visited the Accused:

“Time spent with Leonard Warwick inside Cessnock Correctional Centre. I presented and discussed with Mr Warwick the contract for sale for [the Casula property], the sale note from real estate agent Ray White and the agency agreement. Mr Warwick declined to sign any of the documents and stated that he would rather have the proceeds of the sale go to his children than towards lawyers fighting an unwinnable case.”

50. The daughter gave an account of the circumstances surrounding the termination of the retainer of Mr Havas. She said:

“It was in October that I terminated the services of the lawyers as they had not given my father advice or seen him and we did not know what was happening with the case.”

51. Her evidence also records a confirmatory conversation with an employee of Mr Havas, noting that their instructions had been withdrawn. The balance of the daughter’s evidence satisfies me that the withdrawal of instructions occurred after the visit by Mr Sirrie to the Accused on 14 October 2017, and related only to Mr Havas and not to Mr Thomas.

52. The records of the Department of Corrective Services note that Mr Thomas also visited Cessnock Correctional Centre on 14 October 2017. Although Mr Thomas billed the Accused for a prison visit on 31 October 2017, I am satisfied that Mr Thomas made an error as to the date of his visit to Cessnock and that, in fact, he was there on 30 October 2017, which is the date written on a Costs Agreement signed by the Accused. That date accords with the evidence of the daughter and a contemporaneous text message.

53. At a pre-trial hearing which took place on 24 November 2017, both Mr Havas and Mr Thomas appeared. Mr Havas addressed the Court and informed the Court that he was seeking leave to withdraw. At a later point in the exchange the following was said to the Court from the bar table:

“His Honour:    …. Mr Havas, has Mr Warwick terminated your retainer?

Havas:   The basis for 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 you 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'm now at the point where I have retained Mr Hughes, Mr Thomas and of course, myself for an extended period of time in circumstances where I also have another murder trial before this Honourable Court and before Her Honour Justice Wilson commencing on the same day. 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 six weeks from memory and I am unwilling to continue to act in this matter unfunded and without …

His Honour:    So have you terminated the retainer?

Havas:   I think it is joint, in my respectful submission because …

His Honour:    So that he has terminated your retainer and you have accepted that:

Havas:   Yes.

His Honour:    So you are no longer retained?

Havas:   Yes.”

54. This account given to the Court by Mr Havas seems to be the same in substance as that given by the daughter. Mr Havas was pressing for funds which the Accused was unwilling to make available because he was dissatisfied with the service and advice from Mr Havas.

55. On no account before the Court, was any reason given to Mr Havas about the Accused’s concerns with his service (or lack thereof). The Accused told his daughter, she then terminated the retainer formally (probably after 14 October 2017) and Mr Havas accepted the termination.

56. After the exchange recorded above in [53] concluded and Mr Havas had left the Court, the Court was informed that Mr Thomas had been briefed directly by the Accused. Mr Thomas informed the Court that he did not anticipate that the Accused would be appointing another solicitor, although he was hopeful of obtaining some assistance to support him in his appearances for Mr Warwick. Mr Thomas assured the Court that the Accused would be ready for the trial to commence in February 2018.

57. As I have earlier noted, this termination did not apply to Mr Thomas. In a phone call which occurred shortly after the retainer of Mr Havas was terminated, Mr Thomas informed the daughter that he could act for the Accused directly without a solicitor. The retainer of Mr Thomas to act as counsel was recorded in a Costs Agreement signed 30 October 2017. That retainer was later confirmed by the daughter with Mr Thomas, at her father's direction. That direction included transferring an agreed sum of money for Mr Thomas’ brief fee for the entirety of the trial.

58. To ensure readiness for trial, the proceedings were fixed for a further pre-trial hearing on 2 February 2018. According to the records of the Department of Corrective Services, Mr Alan Conolly and his partner, Ms Elizabeth Ramsay, who constituted the firm AR Conolly & Co, together with counsel for the Accused, Mr Thomas, visited the Accused on 30 January 2018. It seems to be at about that time that the Accused appointed Mr Conolly and his firm to be his lawyers. Mr Thomas continued to be retained.

59. There is no evidence before the Court on this Motion explaining in any detail how Mr Conolly was retained, the initial terms of that retainer, or why Mr Conolly was chosen. However, it must have been well known to the Accused, his daughter and, I infer, Mr Conolly and Ms Ramsay, what the extent of the assets of the Accused were which could be made available for legal costs. On the evidence, after the payment of Mr Thomas’ retainer of $80,000 and the costs of the committal, the Accused had an amount which did not exceed $850,000 on the assumption that his Casula property sold for $800,000.

60. Mr Conolly and Ms Ramsay continued to act for the Accused from February 2018 up to 28 January 2019. With the exception of a number of specific occasions, which can be presently put to one side, they have appeared in the role of both solicitor and advocate for Accused from time to time. Mr Thomas appeared in Court for the Accused during the hearing of a release application under the Bail Act 2013 on 7 March 2018, 16 March 2018 and 20 March 2018. Judgment was on that application was delivered on 23 March 2017: R v Warwick (No.8) [2018] NSWSC 354.

61. As that judgment records in [3], the original trial date of 19 February 2018 had been vacated and the Court had, on 9 February 2018, fixed a new trial date of 14 May 2018.

62. Shortly after the time that R v Warwick (No.8) was delivered, the Court was informed that Mr Thomas was no longer retained as counsel for the Accused. There is no evidence as to the circumstances of the termination of the retainer. The evidence does not detail who undertook the termination or why it was thought necessary. It was within the power of the Accused to adduce evidence as to all that occurred. The fact that there is no evidence suggests that any such evidence would not have assisted his case on the Motion. Particularly is this so in circumstances where other evidence suggests that Mr Thomas was well informed about the trial and the issues and had a strategy for the defence of the Accused.

63. The daughter of the Accused records a conversation with the Accused which is said to have taken place after the committal. The date or time of the conversation is not otherwise identified. In the conversation, the Accused is said to have expressed his feeling that he was unhappy with how Mr Thomas ran the committal, including that it took only two days. Having regard to the subject matter of the discussion, and all that occurred between December 2016 and 30 October 2017 when the costs agreement with Mr Thomas was signed, including the pre-trial arguments in this Court, I am satisfied that this conversation occurred prior to the arraignment of the Accused in March 2017, and that the Accused’s concern about the way in which the committal was conducted did not impact at all on his entry into a retainer with Mr Thomas. It follows that this conversation had nothing to do with the termination of Mr Thomas’ retainer.

64. The Accused’s daughter also gave evidence of a remark made to her by Mr Conolly, seemingly in late March 2018, to the effect that Mr Thomas had “without warning” sent all of his boxes of files back to AR Conolly & Co. This tends to suggest that Mr Thomas terminated the retainer. In the absence of evidence from either Mr Thomas or Mr Conolly about these events, I am unable to place any weight on this remark. I am not prepared to find that Mr Thomas terminated the retainer.

65. However, without more, I am not able to conclude, despite inadequate material coming from the Accused, that the termination of the retainer of Mr Thomas was unreasonable conduct by, or at the direction of, the Accused. Even if it was unreasonable, the passage of time since then and the events which have occurred during the trial, mean that it has no real significance to the determination which the Court is now obliged to make.

66. During the course of April and May 2018, the daughter was informed by either or both Mr Conolly and Ms Ramsay that they had made attempts to identify a barrister who would be available to appear for the Accused. No evidence of the details of the attempts at that time was provided to the Court.

67. According to the evidence of the daughter, the Accused entered into a Costs Disclosure and Costs Agreement with AR Conolly & Co on 11 May 2018. This was the last business day before the trial was scheduled to begin. There is no evidence of any earlier costs agreement with AR Conolly & Co.

68. The Costs Agreement entered into with Mr Thomas provided for an hourly rate of $400, but he had agreed on a fixed rate for the entirety of the trial on and from 31 October 2017 of $80,000. By contrast, the hourly rate which would be charged in accordance with the Costs Agreement entered into by the Accused with AR Conolly & Co was as follows:

TITLE	RATE
Senior Partner	$770.00
Partner	$550.00
Senior Associate/Senior Lawyer	$450.00
Associate	$390.00
Solicitor	$350.00
Senior Graduate Clerk	$150.00
Paralegal	$125.00
Word Processing	$95.00
Clerical	$65.00

69. This agreement noted that it was separate from the agreement which the Accused had entered into with Mr Richard Thomas. It can be readily observed that there is a significant difference in the hourly rate to be charged by Mr Conolly ($770) and that of Mr Thomas, an experienced trial barrister ($400), which I would expect was a matter carefully explained to the Accused by Ms Ramsay. However, there are many reasons why a client may wish to retain a particular lawyer, or law firm, in addition to the issue of the rates being charged for the provision of legal services. The evidence does not enable any firm conclusions to be drawn about the reasons of the Accused for retaining Mr Conolly and his firm.

70. There is no positive evidence that the Accused sought or obtained any independent legal advice before entering into this Costs Agreement. The Costs Agreement was signed by the Accused and by Ms Ramsay for AR Conolly & Co. The records of the Department of Corrective Services show that on 11 May 2018, Ms Ramsay visited the Accused at Silverwater. Those records do not disclose any legal visit by anybody other than Mr Conolly, Ms Ramsay or Mr Thomas during the whole of 2018. The daughter, who deposed to the fact that she did a significant amount of work assisting her father with the arrangements in preparation for the trial, does not say that she was aware of any other lawyer who visited the Accused to give him advice about this agreement. She did not herself seek any legal advice about the Agreement. I conclude that prior to entering into the Costs Agreement with AR Conolly & Co, the Accused did not receive the benefit of any independent legal advice.

71. Whatever be the reason for, or the wisdom of, the Accused entering into the Costs Agreement with AR Conolly & Co, particularly when viewed from the perspective of the facts presently available, it cannot be said that it was unreasonable of him in May 2018 to have decided that he should continue to retain AR Conolly & Co to act for him. After all, by that stage, the commencement of the trial was only a few days away, and considerable pre‑trial work had been undertaken by AR Conolly & Co.

72. According to the evidence, for the period 21 February 2018 to 31 July 2018, AR Conolly & Co raised tax invoices addressed to the Accused which totalled $2,328,091.16. It appears that those invoices were not generated until after the Costs Agreement was signed on 11 May 2018. In respect of those invoices, the Accused has paid to AR Conolly & Co a total of $751,914.21. A total of $1,576,176.95 remains outstanding in respect of these invoices for fees.

73. An application for legal aid was made in September 2018. It will be discussed in detail later in this judgment. An unsuccessful judicial review application was the subject of a judgment delivered by Fullerton J on 12 December 2018: Warwick v Legal Commission of NSW [2018] NSWSC 1920.

74. On 11 December 2018, Mr Conolly filed a Notice of Motion in Court in which he sought a number of orders, one of which was that he be granted leave to withdraw from his representation of the Accused in the trial. He did not seek to proceed with that order at that time. The evidence now before the Court includes a series of emails sent in identical terms by Mr Conolly on 10 December 2018 to the clerks of three sets of barristers’ chambers in Sydney. That email sought the availability of any counsel to take over the defence of the Accused without fee, on a pro bono basis, for the whole or part of the balance of the trial which had an estimate of six to nine months. Unsurprisingly, no positive reply was received.

75. It also appears that a sum of $8,231.30 remains outstanding for disbursements incurred by AR Conolly & Co, which have been billed but remain unpaid. The evidence also suggests that further disbursements of approximately $6,000 have been incurred by AR Conolly & Co for taxi fares which have not been billed.

76. No invoices have been delivered for the period from August 2018 through to and including December 2018. However, according to information given to the daughter by Igard Nikovic, the Finance Manager at AR Conolly & Co, the work in progress that has been recorded on that company's billing system for that period by at least 14 employees, and in one month 16 employees, totals $2,339,374.50.

77. As well, the Accused has paid monies directly to experts for their advice and assistance in the sum of $40,000 and, although the amounts are not given in evidence, there are said to be further expert fees outstanding. The identity of those experts has not been disclosed to the court.

78. A consideration of the invoices on a month-by-month basis indicates that between the time that AR Conolly & Co commenced acting for the Accused up until 30 April 2018, the sum for fees ultimately invoiced to the Accused was $976,663.75. Three matters may be noted here: first, this sum exceeded (by at least $100,000) the entirety of the funds which the Accused had available to be spent on legal fees; secondly, the trial of the Accused was yet to begin; and thirdly, there is no evidence that the Accused had entered into a costs agreement with Mr Conolly or his firm before 11 May 2018. Because not all of these invoices had been sent to the Accused by that time, the Accused may have been unaware of the amount of accumulated legal fees and that by the time he came to sign the Costs Agreement, the monies which he had earmarked as available for legal costs had been completely exhausted. However, Mr Conolly and Ms Ramsay must have been well aware of that financial position.

79. It is possible to gain a broad understanding of the fees and obligations incurred by the Accused from the table below. It should be noted that the figures make an estimate of the split between pre-trial and trial work for the month of July 2018. The split is made by applying a proportion of the days of the month prior to the evidence commencing in the trial and those after that date:

Proceeding	Costs & Disbursements	Comment
1.	Charge to and including committal on 14 December 2016	$70,498.00	Fees of both Mr Havas and Mr Thomas
2.	Pre-trial – 3 March 2017 to 16 July 2018, when evidence was first called	$1,827.503.00	(a) includes fees for Mr Thomas of $168,520; (b) includes fees for the attendance in court during the Crown and Accused Opening Statements in May 2018.
3.	Trial – 16 July 2018 to 20 December 2018	$2,643,727.61	This figure is the total of Work in Progress records of AR Conolly & Co from August 2018 to 20 December 2018
4.	Experts	$40,000.00
TOTAL	$4,581.729.00

80. It would be easy to react to this extremely large sum for costs of a criminal proceeding (including as part of an, as yet, unfinished trial) with an expression of astonishment or even a much stronger epithet. But it is necessary to keep in mind that on the hearing of a motion such as this, the Court is not engaged in any assessment of solicitor and client legal costs, much less the setting of a reasonable rate of remuneration for the lawyers representing the Accused. The purpose of recording and setting out these costs is as part of the factual context for the Accused being unrepresented, and whether that is due to any fault or unreasonable conduct on his part.

81. However, these amounts for legal costs are the occasion to draw attention to, and re-emphasise, the remarks of Smart J in Regina v Kay (1998) 100 A Crim R 367, where with the agreement of Gleeson CJ and Mason P, he said:

“This court has noted that defendants are spending substantial sums of money on committal proceedings and have no money left to pay for or contribute to legal representation for their trial. Legal Aid is sought for the trial and the accused wishes to make no contribution or minimal contribution or is unable to make a useful contribution. This practice cannot be allowed to continue.

Henceforth, solicitors should advise defendants for whom they appear that, if appreciable funds and their borrowing capacities are substantially exhausted on committal proceedings, they may be refused legal aid for their trial and they may not obtain a stay of proceedings. This could result in them being unrepresented at their trial. Defendants should be advised that they should give priority to conserving their funds and being represented at the trial. The advice should not be perfunctory.

Care should be taken to confine the committal proceedings to the important issues and avoid them becoming protracted. In some cases where the funds available to a defendant are limited it will be reasonable for a defendant to be represented at committal proceedings which are confined. Difficulties can arise in joint committals where one of the defendants has ample funds and wants to explore many avenues. Each case must be assessed on its own merits but there must be reasonable management of a defendant’s finances when expenditure on committal and trial proceedings are under consideration and assessment. Some expenditure may seem reasonable at the time it occurred but not in retrospect and as the High Court point out in Craig, contributing fault on the part of the accused does not necessarily mean that a stay will be refused.”

82. Although the procedure for committal hearings has significantly changed since Kay was decided, the warning of Smart J is equally applicable to pre‑trial proceedings of any kind, whether conducted in the Local Court or else in the Supreme Court, after arraignment. Whether any attention was given to the “reasonable management of [the Accused’s] finances” in this case is not addressed in the evidence.

83. On 29 January 2019, the first day of the resumed trial, Mr Conolly filed a Notice of Motion in which he sought an order for leave to withdraw from the proceedings. This order was not ultimately pressed. In the course of the hearing of that application, as is recorded in R v Warwick (No.63) [2019] NSWSC 41 at [3]-[5], Mr Conolly informed the Court that on behalf of the firm, Ms Ramsay visited the Accused at Silverwater on 28 January 2019, and informed him that AR Conolly & Co were terminating their retainer due to outstanding invoices.

84. To complete the narrative with respect to legal representation, it is appropriate to add that AR Conolly & Co have remained instructed on a limited basis in respect of two matters:

1. as of 29 January 2019, to seek a 12 week adjournment. That Motion was unsuccessful for the reasons contained in R v Warwick (No.63); and

2. to bring the current Motion for a temporary stay until the provision of legal representation.

85. Some conclusions can be drawn from this narrative:

1. at all times up to 29 January 2019, the Accused has been legally represented at the trial;

2. the Accused has made provision from his assets by way of a considerable sum, over $900,000, for the payment of his legal costs;

3. the trial, initially estimated to take about 6 months, will take a much longer period than that. No submission was made that the cause for this extension of time could be laid personally at the feet of the Accused;

4. it was open to the Accused to make different choices with respect to his legal representation, however, having regard to the circumstances as they were known at the time, rather than with the application of hindsight, it cannot be concluded that any of the choices made by the Accused constituted unreasonable conduct;

5. whether it was professionally appropriate or not for Ms Ramsay on behalf of AR Conolly & Co to terminate the retainer from the Accused on the day before the criminal trial was due to resume on the 100th day of hearing, no blame can be attributed to the Accused for not being legally represented on a continuing basis by AR Conolly & Co;

6. the Accused made an application for Legal Aid NSW to provide for legal representation in a reasonably timely manner after his funds were expended. One condition of the grant of legal aid could not be fulfilled by the Accused. That condition was the subject of an unsuccessful challenge in judicial review proceedings. The grant of legal aid has expired; and

7. the Accused is presently not legally represented.

86. The evidence does not establish, and I do not conclude that any conduct of the Accused has been unreasonable, nor that he is in any way at fault for the fact that he is now unrepresented. The Accused lost confidence with Mr Havas, but replaced him, not promptly, but within a not unreasonable time with AR Conolly & Co. Because Mr Thomas continued to be briefed until towards the end of March 2018, it may have been possible at that stage to obtain the assistance of another barrister without any significant disruption to preparations. However, as long as Mr Conolly and his firm continued to be retained, the funds set aside by the Accused were destined to run out before the trial was concluded.

Factual Context: Real Property Assets

87. An important part of the factual issues relevant to this Motion is the legal and beneficial ownership of two properties of the Accused. This is important to the analysis of whether the Accused is indigent, about which there is a dispute between the Accused and the Crown.

88. At the time of his arrest, the Accused was the sole registered proprietor of two properties, one at Casula which he had owned since at least the 1980s and the second at Douglas Park.

89. The property at Casula was rented out and the Accused received rental income from it. He, together with his wife, and the children of their marriage, lived at Douglas Park. By the time of the hearing of this Motion, only some of the children remained living at Douglas Park.

90. According to the Accused’s wife, she met the Accused in the Philippines in 1988 and they married there in January 1992.

91. The wife permanently relocated to Australia with her two children in mid-1992. Initially the Accused, his wife and her first two children lived in the Casula property.

92. Although the evidence is not precise, it seems that the Douglas Park property was purchased in 1995, and a house was then built upon it in about 1997. The house at Douglas Park seems to have been paid for from the proceeds of sale of the house of the Accused's father or else from the Accused’s inheritance from his father’s estate.

93. The wife says, at a time after the Accused was arrested, that she had a discussion with the Accused about all of their assets, including the two properties. She says that the Accused told her that he wanted the Douglas Park house where she and the whole family had been living for about 17 years, to be kept for her and the children. The wife says that the Accused also told her that he was planning to sell the Casula house to pay for his legal fees, to defend the charges which had been brought against him.

94. After the Accused was committed for trial at the end of 2016 and before his arraignment in the Supreme Court in the early part of 2017, the wife, after discussions with the Accused and advice from Mr Havas, consulted with a solicitor, Ms Searle, in relation to a proposed property rearrangement which would accord with what the Accused discussed with her. Ms Searle prepared a document entitled “Part VIIIA Financial Agreement under s 90C and s 90E of the Family Law Act 1975 (Cth)” (“the draft BFA”). The Accused appears to have sought, and perhaps received, advice on this topic from Mr Havas, who was then acting for him.

95. The Introduction to the draft BFA included the following statements:

“B.   In order to promote harmony between themselves, to reduce the possibility of resorting to litigation and to avoid and reduce any dispute between them in the future about spousal maintenance and about ownership, use and division of property and financial resources, the Wife and Husband have decided to enter into this Agreement …. The Wife and Husband desire and intend the terms of this Agreement be given effect by any Court called upon to adjudicate on all financial matters (property and maintenance) in issue between the Wife and Husband.

C.   The Wife and Husband married on 24 January 1992 and separated on 29th July 2015. While husband is currently on remand at Parklea Correctional Facility pending court proceedings, the parties consider themselves separated under one roof and do not intend to divorce. Both are Australian citizens.

D.   It is intended that this Agreement will apply to the whole of the property and financial resources of the parties and will provide how their individual and joint assets, financial resources and liabilities will be dealt with due to the Breakdown of the Marriage notwithstanding and in substitution for all rights and entitlements of either party under the Act.

…

J.   The Wife and Husband acknowledge pursuant to s 90DA of the Act that there has been a Breakdown of the Marriage and this Agreement is of force or effect as a Separation Declaration has been made…”

96. The effect of the operative clauses of the draft BFA was that the wife would take the Douglas Park property as her own without limitation, and that the Accused would take the Casula property as his own without limitation. Neither of the properties were at that time the subject of any mortgage. As well, other arrangements were proposed with respect to cash and shares. The draft BFA recorded that the Accused agreed to pay maintenance to his wife in the sum of $5,000 per week (this was clearly a mistake and should have read “per month”). When the draft BFA was sent to the daughter by Ms Searle, she discussed it with the wife who refused to accept the statement contained in the draft BFA which said that there had been a breakdown of the marriage, or that there had been any separation or divorce. The proposed draft BFA was not signed by the wife or the Accused, and no further arrangements were made at that time with respect to the transfer of the Douglas Park property.

97. A financial agreement made under s 90C can be made during a subsisting marriage, but any property re-arrangement can only take effect in the event of the breakdown of the marriage. It is not clear why the draft BFA was expressed as coming under this provision. It was open to the lawyers, Ms Searle and Mr Havas, to advise their respective clients, the Accused and his wife, about the availability of s 79 of the Family Law Act as a means by which their property interests could be rearranged. This pathway requires proceedings to be commenced in the Family Court, and for that Court to be persuaded that it is just and equitable in all of the circumstances to make an order for the re-arrangement of property interests. The evidence does not suggest that any advice about this pathway was provided to the Accused or to his wife. The absence of that advice explains why no further proceedings were taken in the Family Court to formalise their arrangement.

The Selling of the Casula Property

98. Clearly, during the balance of 2017, there had been discussions between the Accused and, at least Mr Havas, about the selling of the Casula property. These discussions seem to have come to a head no later than 14 October 2017 in the conference between the Accused and Mr Sirrie, to which I have earlier referred at [49].

99. There were clearly further discussions between the Accused and either Mr Conolly or Ms Ramsay about selling the Casula property during the first half of 2018, although there is no evidence about the detail of those conversations or their timing.

100. On 20 April 2018, the Accused entered into a contract for the sale of the Casula property for a total price of $810,000. The sale transaction was settled on 1 June 2018.

101. The disposition of the $810,000 that constituted the sale price was eventually comprehensively addressed in the evidence. After the usual agent’s fees and commissions and typical conveyancing allowances, the sale of the Casula property resulted in the net sum of $792,491.75 being available to the Accused from the purchase of the Casula property.

102. According to the daughter, an amount of $350,000 from the proceeds of sale “had to be repaid for short term loan which had been taken out against the property …" and that a total of $378,607.55 was transferred to the Trust Account of AR Conolly & Co. The total of these two amounts, together with the balance of the deposit remitted by the agent, account for the entirety of the proceeds of sale.

103. In summary, the daughter says that after stamp duty, agent’s fees and the short term loan were repaid, the balance of monies were put aside solely for the legal costs of the trial. The trust account records of AR Conolly & Co corroborate that account.

104. A short term loan of $350,000 was obtained by a company, Araz House Pty Ltd. Nothing is disclosed in the evidence about this company except that its address is the Douglas Park property of the Accused. The Accused was described on the loan documents as the Mortgagor. The net proceeds of the loan were deposited into the trust account of AR Conolly & Co on 28 May 2018. At the time of settlement of the sale of the Casula property, this loan was repaid from the proceedings of the house sale. The evidence establishes, and there is no reason to doubt, that the Casula property has been completely disposed of and is no longer an asset of the Accused. As well, the whole of the available proceeds of sale from that have been spent on legal fees. None of the proceeds of sale have been retained by the Accused.

The Transfer of the Douglas Park Property

105. Shortly after the resolution of the sale of the Casula property, it seems that attention turned to the Douglas Park Property.

106. At all times up until at least 1 September 2018, the Accused was the only proprietor registered on the title of the Douglas Park property.

107. The Douglas Park property was transferred into the name of the Accused by the original vendors by a Memorandum of Transfer dated 27 October 1995. The consideration was $147,000. No mortgage was ever registered on the title.

108. On 6 June 2018, advice was provided to the Accused and his wife by a solicitor at AR Conolly & Co that the transfer of the Douglas Park property from the Accused to the wife should be effected by the execution of two separate Transfers, each conveying a 50% share of the property. Apparently, this was due to the perception that by approaching the transfer of title in this way, the impact of stamp duty might be minimised.

109. On 7 June 2018, each of the Accused and the wife executed, in the presence of Ms Ramsay, two Transfers which were dated that day. Each Transfer purported to transfer from the Accused to his wife 50% of the estate in fee simple of the Douglas Park property.

110. To enable registration of one or both of the Transfers, it was necessary for the original of the Certificate of Title to be produced to the Land Titles Office at the time of lodging the Transfer.

111. The Certificate of Title was not provided to AR Conolly & Co by the daughter until 4 September 2018. The daughter records in her affidavit that at some time after 4 September 2018, she was advised by a solicitor from AR Conolly & Co that the Transfers which had been executed in June could not be lodged for registration because they were no longer within the three month time limit acceptable to the Land Titles Office. She was advised that new Transfers would need to be signed. It is not clear why the first of the two signed Transfers dated 7 June 2018 was not lodged with the Land Titles Office on either 5 or 6 September 2018, which would have been within time. The time constraint seems to have been overlooked.

112. On 7 September 2018, two new Transfers were drawn up, with each again providing for a transfer of 50% of the Douglas Park property. On 7 September 2018, each of these Transfers was signed by the Accused and his wife in the presence of Ms Ramsay. They were returned in an undated form to Mr Matthews, a solicitor at AR Conolly & Co, whose task it was to address this conveyancing issue.

113. On 12 September 2018, one of the two Transfers which had been dated that day, and which had been assessed as being exempt from stamp duty, was lodged for registration. No consideration was recorded as being paid for this transfer.

114. Although AR Conolly & Co is in possession of the further executed, but undated, Transfer of 50% of the Douglas Park property, it has not been lodged for registration. The evidence does not reveal any reason why this second Transfer has not been lodged as at the hearing of this Motion. As the Register presently stands, the Accused and his wife are both noted as being registered proprietors as tenants-in-common. That is to say, on the title, the Accused is the legal proprietor of one half of the Douglas Park property and the wife is also the legal proprietor of one half of the Douglas Park property as tenants-in-common.

115. For reasons which are unexplained in the evidence, the Register on and from about 24 September 2018 until 6 February 2019, showed the wife as the sole registered proprietor. This was obviously an error which was corrected by a departmental dealing lodged on 6 February 2019. The Certificate of Title now records both the Accused and his wife as being owners of equal shares in the property as tenants-in-common.

Arrangements about the Douglas Park Property

116. It is the case for the Accused that his wife is the sole legal and beneficial owner of the Douglas Park property.

117. Initially, the Accused submitted that his wife was the sole registered proprietor. This is clearly not correct. The submissions of the Accused were amended in reply to rely upon the entitlement of his wife as the beneficial owner of the 50% share of the Douglas Park property, which is held in the name of the Accused.

118. Alternatively, the Accused submitted that his wife was the owner in equity of the entire estate in the Douglas Park property; that she would have been entitled to become the sole registered legal owner of the Douglas Park property had she made an application under s 79 of the Family Law Act; and that it was “otherwise reasonable” for the Accused to have transferred the entire estate in the Douglas Park property to his wife.

119. The proposition that the wife was the owner in equity of the entire estate is said to rest upon an arrangement made between the Accused and his wife, the terms and effect of which are set out in her affidavit in this way:

“63.   When he was in jail, we talk about the house. He always speak, he say he is in jail that he planning to sell the Casula house and leave to me the Douglas Park house. Because it was like I am allowed to half of his money and because he is spend and sell the house in Casula, so that the Douglas Park is my share and that I can have it. That belongs to me, the Douglas Park house. Because half of his money is to going to be spent for him and so the Douglas Park house that's mine. Because he always say we can have half of money, things like that. That is mine, half of his money.

64   He first said that when he started in jail because he know he going to spend some money for costs and he planning to sell the Casula house. That was as soon as he was in jail three years ago.”

120. The wife added the following:

“65    I don't know why it was not done yet. It's just not done yet. Because we been talking, but it not been done yet because he not do his trial yet.”

121. The wife goes on in her affidavit to note that she consulted with a solicitor, Mr Stephen Blanks, who set out her position in a letter of 23 January 2019. That letter asserted that the wife was the registered proprietor of the whole of the property. It went on to say:

“We are instructed that [the wife’s] position is as follows:

1)   she is the absolute owner of the property.

2)   she does not agree to giving a charge or any other security over the property in favour of legal aid in connection with her husband's application.

3)   three she intends to keep the property for her own benefit and ultimately the benefit of her children.”

122. The account given by the wife was not challenged by the Crown. The wife was not required for cross-examination. There is considerable evidence on the Motion which provides corroboration for the account of the wife as to the arrangement which she reached with the Accused.

123. The daughter’s unchallenged evidence corroborates the arrangement. The daughter says that she had a conversation with the Accused at a time after he was arrested, when he said to her the following:

“I’ll need to spend money on costs. I’ll have to sell the Casula house to pay for my costs. Your mother and I will split the property. She can have the house as her half … but I will have to sell my half for my costs.”

124. As well, the daughter records that her father said to her and her mother, on a number of occasions, that he had spoken to Mr Thomas about the house and “… about splitting the property so I can pay for costs …”.

125. The draft BFA also corroborates this arrangement. Leaving aside other assets, the draft BFA reflected the proposal from the Accused that he would retain the Casula property absolutely and transfer the Douglas Park property to his wife. Emails in April and May 2017 between the daughter and Searle & Associates, Lawyers, also provides significant corroboration of that original arrangement.

126. By way of example, on 20 April 2017, the daughter sent an email to a solicitor at Searle & Associates:

“I apologise for not keeping you updated sooner, I had hoped I would have had everything sorted sooner. My mother … and I have gone over the agreement twice and are happy with the contract. However, with that being said, my mother does not feel comfortable to sign yet and would prefer it if my father, Leonard Warwick, had a look at the contract first before she signs anything. I have spoken to Mr Havas our solicitor about when he would be seeing Leonard Warwick again, and while he has made several attempts, due to his busy workload and scheduling, has been unable to see him as of yet. As soon as my father has read the contract, I’ll be making an appointment with you as soon as possible. …”

127. A further email of 18 May 2017 from the daughter to Ms Searle provided an update on the draft BFA. It suggested the addition of various matters of detail. It also included a request to remove the reference to the weekly spousal maintenance of $5,000. The daughter at that time promised to provide Ms Searle with further information relating to matters of detail.

128. This exchange of emails does not suggest that there has been any change in the minds of either the Accused or his wife with respect to the transfer of the Douglas Park property. On the contrary, it appears efforts were being made to put the arrangement into effect, and at a time before the Accused was going to be called upon to pay significant amounts for the legal costs of the trial.

129. The evidence is silent as to the timing of any final decision not to proceed with the draft BFA. In light of the email exchange to which reference has been made at [127]-[128], the evidence of the daughter contained in her affidavit of 8 February 2018, suggesting that by 23 February 2017 a decision had been made not to proceed with the draft BFA, seems likely to be erroneous. Particularly is this so having regard to the daughter’s later evidence that Mr Thomas sent her a text message on 20 October 2017, which included the following:

“Hi …, I have organised to go and see your father on Monday 30 October next … If the Deed of Family Settlement is still proceeding, then your father needs to have the documents so that they can be signed, the same for the house …”

130. After that text message was received, the daughter received an email from Mr Havas’ firm about outstanding fees. In response, she noted that the outstanding fees had been paid and made a request to Mr Havas’ firm in these terms:

“Can you please express post the Agency Agreement and Contract for Sale to Richard. I would really appreciate if you could do it before today ends …”

131. The documents which were to give effect to the sale of the Casula property do not seem to have been signed at any time in the presence of Mr Thomas. Rather, they seem to have been attended to during 2018, after AR Conolly & Co commenced to act for the Accused.

132. The Accused submitted that there are two bases upon which the Court could determine that having regard to the arrangement, and the facts and circumstances which have occurred, the wife has an equitable interest as to the entirety of the 50% share of the Douglas Park property held in the name of the Accused, which could be enforced against him.

133. The first is that a court of equity would find that a common intention constructive trust exists because the Accused and his wife agreed, and held a common intention, that the wife would be entitled to the 50% interest in the Douglas Park property held in the name of the Accused, and that the wife had acted to her detriment on the basis of that agreement or common intention: Shepherd v Doolan [2005] NSWSC 42 at [31].

134. As Gleeson CJ said in Green v Green (1989) 17 NSWLR 343 at 353:

“Nevertheless, it is now well settled that there are circumstances in which a court of equity will intervene to declare the existence of a proprietary interest in a family home on the part of a spouse …, and the unifying principle underlying the cases where such intervention is regarded as appropriate is that in the circumstances of the case, and in accordance with equitable doctrines, it would be unconscionable on the part of the person against whom the claim is set up to refuse to recognise the existence of the equitable interest: Baumgartner v Baumgartner (1987) 164 CLR 137 at 147 per Mason CJ, Wilson and Deane JJ.”

135. The Chief Justice also cited with approval, the remarks of the Privy Council in Maharaj v Jai Chand [1986] AC 898 at 907 where their Lordships said:

“In such cases a contract or an express trust as at the time of the acquisition may not be established, because of lack of certainty or consideration or non-compliance with statutory requirements of writing, but a constructive trust may be established by an inferred common intention subsequently acted upon by the making of contributions or other action to the detriment of the claimant party. And it has been held that, in the absence of evidence to the contrary, the right inference is that the claimant acted in the belief that she (or he) would have an interest in the house not merely out of love and affection …”

136. As Gleeson CJ noted at 354, the judgment of Vice Chancellor Browne‑Wilkinson in Grant v Edwards [1986] Ch 638 identified that when a party sought to establish a constructive trust based on actual intention, two matters had to be demonstrated. First that there was a common intention that the claimant would have a beneficial interest and, secondly, that the claimant acted to his or her detriment on the basis of that common intention.

137. The evidence establishes to my satisfaction that at all times after the Douglas Park property was acquired, it was intended to be, and was used as, the home in which the wife and the children of the marriage lived together with the Accused. The Casula property was regarded after that point in time as the investment property, providing rental income for the benefit of the Accused and his family.

138. After the Accused was arrested and it became apparent that he would need to expend funds on legal fees, the discussion which he had with his wife demonstrated a clear common intention that she should have the benefit of the whole of the Douglas Park property, and that he would have the benefit of the whole of the interest in the Casula property.

139. The corroborative actions to which I have referred above confirm this arrangement and the expressed common intention.

140. The various steps taken with respect to the sale of the Casula property, the guaranteeing of the whole of the net proceeds of sale for legal costs, and the reliance by the wife upon the Accused’s solicitors to effect the transfer of the legal title to the whole of the Douglas Park property into her name, all of which occurred without any active opposition on the part of the wife, constitute actions to her detriment which are available to her in a court of equity to establish an enforceable claim to her beneficial interest in the property.

141. The wife’s forbearance to instruct her own lawyers to give effect to the transfer and to ensure that both transfers were lodged, and her failure to take any steps to interfere with the sale of the Casula property and allow the monies to be spent on legal fees, and failure to take any steps to give effect to the engaging of the Family Law jurisdiction for a property arrangement pursuant to s 79 of the Family Law Act, all combine to indicate that a court of equity would hold that the Accused is the constructive trustee of the 50% share of the Douglas Park property for the entire benefit of his wife.

142. In light of this conclusion, there is no need to consider the second basis upon which the Accused submitted that his wife would probably be regarded as the beneficial owner of his 50% of the Douglas Park property, namely the doctrine of equitable estoppel.

143. In summary, although the legal title to the Douglas Park property has not been completely transferred by the Accused to his wife, I am satisfied that it is not appropriate to regard the Accused’s 50% legal title to the property as anything other than an interest he holds on trust for his wife.

144. Put differently, I am satisfied that the Accused’s wife is the owner of the entirety of the Douglas Park property, regardless of the state of the legal title. It is not an asset which is available to the Accused to spend on his legal fees.

145. It follows that the Accused is a man who is now wholly without assets and is indigent within the common meaning of that term.

Legal Representation: Application for Legal Aid

146. On 26 September 2018, Ms Ramsay submitted an application for legal aid through the online portal of Legal Aid NSW. It was in the standard form required.

147. In that application, the Accused disclosed that he owned no assets with the exception of a sum of cash of about $30,000. He disclosed that in June 2018, he had received the proceeds of sale from the Casula property. He also disclosed that he had paid legal fees of $793,442.89

148. The application for legal aid was accompanied by a long and detailed letter dated 25 September 2018. That letter described the nature of the trial confronting the Accused, his personal circumstances, legal resources and current funding. It concluded with this statement:

“Mr Warwick has no further funds available to him. At the family home at Douglas Park his wife lives with two of their three children. The house is owned by [the wife].”

149. If this was intended to refer to the legal ownership, it was erroneous. However, as a general statement of the belief of the Accused about the ownership of the house, it was correct.

150. In a letter dated 2 October 2018, Legal Aid NSW sought further information regarding the wife of the Accused as a “financially assisted person” under the legal aid guidelines. As part of that information the letter requested:

“a list of all assets held by your client and/or his wife and the estimated value.“

151. That letter was responded to on 11 October 2018. Included with that letter of response was a separate sheet of paper containing an Asset and Liability Statement of the Accused and his wife as at 11 October 2018.

152. The Statement included a table setting out the individual items of assets and liabilities. The Douglas Park property was listed in the table as an asset with a value of $1M. Also listed in the table, on the liability side, was a significant sum of outstanding legal fees and estimates of legal fees which were accumulated but unbilled. The thrust of this asset and liability statement was that the assets and liabilities of the Accused and the wife were such that the liabilities exceeded the assets by about 2½ times.

153. The table did not assert that the Douglas Park home belonged only to the wife or else was jointly owned by the Accused and the wife. The document seems to have been prepared by Mr Matthews, an employed solicitor, who believed that the wife was the owner of the Douglas Park property. That he held such a belief was not challenged by the Crown. There was no evidence that either the Accused or his wife knew of the contents of the letter before it was sent.

154. On 16 October 2018, by letter of that date, Legal Aid NSW informed Ms Ramsay that the application for legal aid had been granted. The grant of legal aid was effective from 26 September 2018 (being the day upon which the application was made). It noted that professional fees of the lawyers and disbursements would be paid in accordance with the Legal Aid NSW Fee Scale. The letter went on to say the following:

“APPROVED MATTERS

Your client needs to provide a charge for the costs of their matter.

Your client has been sent a Charge Agreement and information sheet explaining what the charge agreement does.

- when the grant is concluded, Legal Aid NSW will determine the total amount that was spent on your client's matter (their final contribution).

- payment of that amount will be secured against the property by the Charge Agreement.

- when the property is sold or refinanced your client will need to repay the amount owed to Legal Aid NSW.

- there are additional fees, which are detailed on the information sheet.

- your client will also need to pay interest on their debt. The current interest rate is 3.75% yearly. The rate changes on 1 January and 1 July each year based on changes to the Reserve Bank of Australia Target Cash Rate.

As a condition of your client’s grant, a signed Charge Agreement is to be returned Legal Aid NSW by 15 November 2 018.

If the Charge Agreement is not returned by the due date, your client’s grant of aid will be terminated.”

155. The letter went on to inform Ms Ramsay that Legal Aid NSW would allow Mr Conolly to claim as if he were a junior counsel and Ms Ramsay to claim as an instructing solicitor. The grant of legal aid permitted 30 days of court attendance and two client conferences per week. The grant noted that if further court days were required, it would be necessary to lodge a request for extension. The balance of the letter seem to be largely in a standard form, the contents of which were not necessarily applicable or appropriate for the grant of legal aid which was made to the Accused in the circumstances of this case.

156. In relation to the charge over his property that the Accused was expected to provide as described above at [154], no Charge Agreement or information sheet was sent by Legal Aid NSW to the Accused or to Ms Ramsay as his lawyer.

157. On 9 November 2018, by letter and a standard form, Mr Conolly lodged an appeal on behalf the Accused. In addition to the appeal, a request was made that there be a redetermination of some of the conditions of the grant of legal aid. The letter drew attention to the fact that no Charge Agreement had in fact been received by the Accused and, accordingly, it had not been returned by the due date. The letter summarised the conditions of the grant, including putting the charge condition in this way:

“Mr Warwick is to provide a charge for the costs of the matter, which will involve Legal Aid determining the conclusion of the matter the total amount was spent on the matter (final contribution) when the property owned by [his wife] is sold or refinanced, [the wife] will need to repay the amount owed to Legal Aid NSW together with interest currently at 3.74% per annum."

158. The letter included this statement:

“Mr Warwick is 71 years of age. He has worked all his life. He has sold his half of the family property to fund legal costs.

…

[The wife] was transferred the house at Douglas Park in respect of her interest in the marital property after having been married for 25 years and having three children, one of whom remains fully dependent, and in high school, and one of whom is partly dependent while he completes his trade qualifications. The transfer was in recognition of her marital property entitlement to 50% of the total value of the assets of the marriage. She relies on Mr Warwick’s Fire Brigade pension.

[The wife] will not agree to a house to be encumbered due to her incapacity to support herself and the children, her inability to work given her language difficulties and lack of employment in Australia and the dependency of the youngest child on her.”

159. The letter sought amendments which would have had the effect that Legal Aid NSW would pay for disbursements incurred before 26 September 2018.In particular, the payment of two invoices for experts; the payment of Mr Conolly and Ms Ramsay at a rate above legal aid rates; and a waiver of the condition with respect to the charge over the Douglas Park property.

160. In respect of the waiver of the charge, the letter reaffirmed that the property at Douglas Park was owned by the wife and was not owned by the Accused. It went on to say:

“[The wife] has advised that she will not contribute to legal costs given her fears for the security of her daughter, and son and herself. [The wife] given her language difficulties has no income earning capacity and has not worked since she came to Australia 25 years ago.

[The Accused and his wife] divided the property of the marriage and Mr Warwick has sold the house which he had from the marital property to pay for legal costs and disbursements albeit substantial shortfall in costs.”

161. The letter also sought an extension of the 30 day grant of aid to 100 days, and the provision of additional preparation time including conduct of conferences.

162. On 15 November 2018, the Legal Aid Review Committee of Legal Aid NSW responded to the letter from Mr Conolly, informing him that there was no right of appeal. This was only partially correct, as the events described below show.

163. After proceedings were commenced by the Accused against Legal Aid NSW, the Legal Aid Review Committee met and considered the appeal lodged on behalf the Accused. By letter dated 4 December 2018, the Legal Aid Review Committee informed the Accused that:

“The Committee has considered all grounds of appeal and dismissed all of them.

The Committee was satisfied that [the wife] is a financially assisted person and that it was reasonable to consider the Douglas Park property as an asset to secure costs. The Committee noted that a condition of the grant of aid is that [the wife] sign a charge over the property held in her name. The charge is to be signed by [the wife] by 15 December 2018. If the charge is not signed by 15 December 2018, then the grant of aid will be terminated for breach of a condition of a grant.”

164. The letter noted that some other matters addressed in the 9 November 2018 letter of AR Conolly & Co were not properly appellable.

165. Accompanying that letter of 4 December 2018 was a formal document which constituted the grant of legal aid. The grant of legal aid required that the signed Charge Agreement be returned by 3 January 2019, but the Charge Agreement and accompanying information sheet, was not forwarded with that letter.

164. It is fair to say that the bulk of this document was in terms very similar to that previously sent. Many of the terms were simply not referrable to the application and the grant of legal aid which had been made and were expressed in ways which were manifestly confusing.

165. The letter of 4 December 2018, in the same terms as earlier put, required the Accused to provide a charge for the costs of the matter. In fact, that was not what Legal Aid NSW actually required. What they required was that the wife provide the charge, which intent seems to be the one acted upon by the Accused and his lawyer.

166. Proceedings were commenced by the Accused against Legal Aid NSW seeking judicial review of the grant of legal aid notified on 4 December 2018.

167. In particular, the Accused challenged the legal validity of the condition which required the wife to provide a charge over her “legal and equitable interest” in the Douglas Park property. Other aspects of the grant of legal aid were not the subject of this judicial review application. The application was heard promptly on 10 December 2018 and on 12 December 2018. For the reasons which she then delivered, Fullerton J dismissed the Accused's Summons see: Warwick v Legal Aid Commission of NSW [2018] NSWC 1920.

168. In the course of submissions from the bar table, Mr Conolly, on behalf the Accused, informed Fullerton J that the Accused had no legal interest in the property at Douglas Park. When her Honour asked Mr Conolly whether the basis upon which she should consider the submissions about the lawfulness of the charge condition was that the wife was the only registered proprietor of the property at Douglas Park, Mr Conolly agreed, although this did not reflect the fact and was erroneous.

169. The charge was not provided by the wife within the time limited either by the Legal Aid Review Committee letter or else the later date specified in the grant of legal aid. Accordingly, I conclude that the grant of legal aid has terminated, and is no longer available to the Accused.

170. The grant of legal aid was applied for on the basis that the wife was the legal and beneficial owner of the entirety of the Douglas Park property. It was incorrect to describe her as the legal owner of the entirety of the property, but it was not incorrect to describe her as the beneficial owner of the entirety of the property. It may be surprising that the application made by Mr Conolly and Ms Ramsay on behalf of the Accused was permitted to be considered by Legal Aid NSW on the erroneous basis that the wife was the legal and beneficial owner of the entire property. However, having regard to my conclusion about the beneficial ownership, I am not persuaded that the application by the Accused for a grant of legal aid has been made on any basis which is substantively misleading, nor that the Accused is in any way complicit in the erroneous way in which the application was put.

171. The Accused acted reasonably in seeking and obtaining a grant of legal aid. The fact that he was not able to compel his wife to give a charge in favour of Legal Aid NSW over the Douglas Park property cannot be regarded as unreasonable conduct on his part.

172. The wife of the Accused is not and was not compellable by her husband to give the charge which Legal Aid NSW sought. The independent legal advice which the Accused’s wife sought and obtained was no doubt influential in her determination not to give the charge. In those circumstances, it would be a bizarre conclusion to describe the Accused as having acted unreasonably, for his failure to procure the charge required by Legal Aid NSW.

173. The end point of this consideration is that the Accused cannot be held to be at fault, or to have acted unreasonably. The grant of legal aid which was made has expired without the condition required by Legal Aid NSW being met.

Submissions of the Accused

176. The Accused submitted that in order to succeed on the application, he needed to show on the balance of probabilities that:

1. he is indigent;

2. he is charged with one or more serious offences; and

3. through no fault of his own, he is unable to be legally represented.

177. The Accused submitted that the Court would find that he is indigent because he lacks the means to engage appropriate legal representation to conduct his defence. He submitted that it was clear on the evidence that he did not have “… anything close to the resources…” necessary to retain appropriate legal representation having regard to the size and complexity of the proceedings.

178. He further submitted that it was self-evident that the charges with which he was confronted on the Indictment are serious offences.

179. The Accused submitted that he was not legally represented because:

1. AR Conolly & Co had terminated their retainer with him with respect to the future conduct of the trial; and

2. that no other legal representation was readily available in the absence of a grant of legal aid or other funding.

180. He further submitted that although he had used his best efforts to obtain legal aid, the grant of legal aid which had been made had expired through no fault of his own. That is to say, he submitted that he was unable to comply with a condition which was imposed by Legal Aid NSW and that non-compliance could not be regarded as unreasonable on his part.

181. The Accused further submitted that in no sense of the term as it had been used, could he be regarded as being at fault or having conducted himself unreasonably so as to preclude the Court exercising its discretion to grant a stay of the proceedings. In particular, the Accused drew attention to that part of the judgment of the High Court in Craig v State of South Australia at [21] where it was said that the reference in Dietrich to the accused being unable to obtain legal representation “… through no fault on his or her part” was:

“not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay.”

182. The Accused submitted that it could not be said that by any measure his conduct had been either gratuitous or unreasonable, nor that he had been the author of his own misfortune.

183. The Accused drew attention to a decision of the Chief Judge in the District Court of Western Australia which he submitted bore similarities to these proceedings. The Accused did not submit that the decision to grant a stay in that case was binding on this Court, as it clearly is not, but nevertheless represented an instance in which similar facts had been considered by another Court as warranting the grant of a stay of a trial: Cummings v R (1994) 12 SR (WA) 172.

184. The Accused in his submissions also drew attention to the fact that on proper construction of everything which had occurred with respect to the Douglas Park property, the Court ought find that the wife of the Accused was entitled to the entirety of that property.

Crown Submissions

185. The Crown opposed the application. In particular, the Crown drew attention to the need for the Accused to demonstrate that he was unable to obtain legal representation “… through no fault on his or her own part”.

186. The Crown also noted that, a court, when considering whether a trial could be fair in all of the circumstances where an accused was unrepresented, was required to consider not only the interests of the accused but also the interests of the Crown and the community.

187. The Crown drew attention to the decision of the Court of Criminal Appeal in R v BK [2000] NSWCCA 4 at [31] where Carruthers AJ said:

“In recent years, the senior criminal courts of this country led by the High Court have stressed the need for fairness in criminal trials, including the desirability of an accused charged with a serious offence being represented other than in exceptional cases. There can be little doubt that this attitude had the consequence that we have not had in this country any of the major miscarriages of justice such as have occurred in other criminal jurisdictions. However, be that as it may, the High Court has consistently reaffirmed the basic proposition that in determining the practical content of the requirement that a criminal trial be fair, regard must be had ‘to the interests of the Crown acting on behalf of the community as well as to the interests of the accused’: …”

188. In that judgment, Carruthers AJ at [33] also drew attention to what had been said by the Court of Appeal in Moss v Brown [1979] 1 NSWLR 114 at 126, and went on to say this:

“In the light of these authorities, it seems to me that, ever vigilant as a trial judge must be to ensure that, so far as it is possible an accused person has a fair trial according to law, nevertheless, the trial process must not be allowed to degenerate by reason of manipulation by the accused, to the position where it is at his or her mercy. This would be so inimical to the public interest and the general administration of justice that it would necessarily lead to an undermining of public confidence in the criminal justice system.”

189. The Crown submitted that having regard to the status of the legal title of the Douglas Park property, namely that the Accused was entitled to 50% of it, he could not be regarded as indigent. The Crown submitted that half of the value of that property, namely $500,000, would be a sufficient amount to fund legal representation for the balance of the Accused’s trial. It submitted that the Court would not be persuaded that the arrangement (which I have discussed earlier) was sufficient for the wife of the Accused to obtain a beneficial interest in the Accused’s one-half share of the Douglas Park property. I have earlier discussed the issue of the entitlement of the Accused to the Douglas Park property. In light of my conclusions at that time, it follows that I do not accept this submission by the Crown.

190. The Crown’s alternative submission was that, to the extent that the Accused was indigent, it was through his own actions and his fault. The Crown submitted that the transfer of the Douglas Park property must have taken place with the legal aid application in mind:

“The Crown submits that to deliberately divest himself of the Douglas Park asset in these circumstances was unreasonable conduct and weighs against the granting of a temporary stay. It is not in the interests of justice to stay criminal prosecutions on the basis that an accused person is indigent if the accused deliberately put themselves into this condition during the course of their own trial.”

191. The Crown submitted that the conduct of the Accused was comparable to the conduct discussed in The Queen v Connell (No.7) [1995] 13 WAR 283. In particular, the Crown relied upon the passage in the judgment of White J at [285] the following effect:

“In my opinion, the term ‘fault’ as it is used in Dietrich, extends to conduct on the part of an accused whereby his indigence (if in fact he is indigent) is the result of his voluntarily giving away, or releasing from his effective control, of substantial assets, with the knowledge of the charges, the subject of the trial which he seeks to stay. It would, I think, be absurd if all accused persons were entitled to a stay of proceedings on the grounds of indigence, if that indigence arose as a result of the accused’s voluntary act in donating his property to a family member or, indeed, any third party, at least at the time when he was aware of the impending trial.”

192. The Crown accepted that the charges with which the Accused was confronted were of a most serious kind and that the Crown Brief was large and complex. The Crown accepted that it was desirable in all cases, but particularly in complex and serious cases, that an accused person be legally represented. The Crown however, submitted that, having regard to the future conduct of the trial in the particular circumstances of this case, it would not be an unfair trial if the Accused was not legally represented.

193. In so submitting, the Crown accepted that if the Accused was unrepresented for the balance of the trial then there would be a significant additional burden upon the Accused (as well as upon the Crown and the trial Judge). Nevertheless, it said that a fair trial would still be possible. The Crown noted that in assessing that proposition, the Court had to take into account fairness to the Crown and to the community. It submitted that the community interest weighed heavily in favour of having the trial completed, and completed as soon as possible.

194. Ultimately, the Crown submitted:

“The interests of justice weigh heavily in favour of the trial proceeding without further delay. If the Accused is indigent, it is by reason of his own unreasonable conduct. The majority of the evidence remaining to be called in the trial is not likely to be in dispute. In all the circumstances of this case, it is argued that there are exceptional circumstances that warrant the trial proceeding with the Accused unrepresented.”

Discernment

195. It is clear and not in dispute that the Accused is standing trial for serious offences. The offences with which he is charged are clearly matters of great seriousness. With respect to the charges of murder, the Accused faces the possibility of a sentence of life imprisonment. A number of the other charges carry lengthy maximum penalties. It could not be gainsaid that the Accused is confronted with defending serious criminal charges.

196. Equally, it is not in doubt that the Accused does not, at the time this motion was heard, have legal representation. The legal firm AR Conolly & Co and its two principals – Mr A R Conolly and Ms E Ramsay - have informed the Accused that they are no longer prepared to continue appearing for him because he is unable to fund their continued retainer. However, Mr Conolly has informed the Court that if funding was made available for the Accused, he and Ms Ramsay would be available to continue to represent the Accused.

197. It also follows from my earlier conclusion that the wife of the Accused is entitled to the Douglas Park property and, having regard to my satisfaction that the entirety of the net proceeds of sale of the Casula property together with the accumulated savings of the Accused, have been spent on legal costs and that the Accused has no other assets available to him, he is indigent within the meaning of that term as it is used in Dietrich.

198. The Crown’s submission that the Accused could conduct the balance of the trial without legal representation is unpersuasive. There are a number of reasons for that, including:

1. the sheer number of future witnesses to be called, presently said to be over 150, which places a significant burden on an unrepresented Accused to determine whether or not to accept their evidence or challenge it, and if so, in what respect and to what degree;

2. the issue of whether or not the Accused should give evidence and as well call any evidence which may be appropriate, is itself a complex one. Encompassed in that question is whether one or more experts should be called as part of the case for the Accused. Deciding that, by reference to the evidence given by experts for the Crown, and the extent to which available experts for the Accused differ from the Crown’s opinion in evidence, and weighing up the advantages and disadvantages to the Accused of calling such evidence, is problematic; and

3. the Crown’s case is a circumstantial one. That of itself requires careful attention to the applicable principles of law, and the question of what directions of law ought be given. As well, the Crown relies upon coincidence and tendency reasoning to assist in the proof of its case. These are concepts which are not easily understood. In my assessment, they could not be readily grasped and be made the subject of a submission by an accused without legal representation.

199. In addition to these matters, the Accused would be asked to take over part‑way through the trial. When it comes to submissions, the capacity of an accused without legal representation to review the transcript to date and the 356 exhibits which have been tendered for the purpose of formulating submissions would be, in my assessment, an enormous burden.

200. The nature of this trial, the range of the evidence, the number of the witnesses to be called, the complexity of the legal issues and the ability to put focussed and meaningful submissions at the end of the trial, are all components of a task which in my assessment is beyond the capacity of the Accused to undertake without legal representation.

201. I recognise that there is a public interest in the hearing and determination of the Crown case against the Accused. The charges are serious. The subject matter of the proceedings is a matter of significant impact to the functioning of a democratic society. The administration of justice requires that this trial be completed, but I am firmly of the view that without legal representation the likelihood of a fair trial being achieved is very low.

202. The Accused has a right not to be tried unfairly. Without legal representation, that right is unlikely to be vindicated.

203. I conclude that it is appropriate, unless legal representation can be obtained, that the trial due to recommence on 11 March 2019 ought be adjourned or stayed. It is essential that the Accused with the benefit of these reasons for judgment makes a further application for legal aid and promptly. That is because the time for the making of a formal order for an adjournment has not yet arrived. The time for such an order will arise on 11 March 2019. The conduct of the Accused between now and that date may well be a factor to which the Court could have regard in determining finally, whether it is appropriate to exercise its discretion to order an adjournment or a stay.

204. Equally, the Crown, having regard to the public interest, may wish to take some further steps with a view to ensuring that the Accused will not be without legal representation when the trial is due to resume.

205. Accordingly, it is appropriate for the Crown and the Accused’s lawyer to have the opportunity to make submissions as to what the terms of any order should be.

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Amendments

01 March 2019 - Typographical errors: [16], [21(a), (d), (f)], [22]

Decision last updated: 01 March 2019