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R v Warwick (No 64)

R v Warwick (No 64)

Case [2019] NSWSC 163 28 February 2019

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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)

Leonard John Warwick is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Warwick (No 64)

Details

AGLC: R v Warwick (No 64) [2019] NSWSC 163
Case: [2019] NSWSC 163
Decision Date: 28 February 2019

CaseChat Overview and Summary

The accused, Warwick, applied for a stay of proceedings on the basis of a lack of legal representation. The case was heard in the Supreme Court of New South Wales. The applicant sought a stay due to the expiration of his legal aid grant, which had been in place since the committal process. The applicant had been charged with multiple counts of drug and firearm offences, and faced a lengthy trial.

The court considered whether the applicant was indigent and whether he was without fault in the delay caused by the lack of representation. The applicant argued that his indigence was due to his lack of financial means and that he was not at fault for the delay. The Crown argued that the applicant had not taken reasonable steps to obtain legal representation and that the applicant's ownership of 50% of the legal title to a property indicated that he was not indigent. The court had to determine whether the trial would be unfair without legal representation and whether the applicant was truly indigent.

The court found that the applicant was indigent as his ownership of property did not necessarily indicate financial stability, especially given the applicant's circumstances. The court also found that the applicant was without fault in the delay caused by the lack of representation. The court considered that the trial would be unfair without legal representation and granted the application for a stay. The court ordered that the trial be stayed to provide the applicant with a further opportunity to obtain a legal aid grant.

Orders