R v Warwick (No.67)
[2019] NSWSC 536
•10 May 2019
Supreme Court
New South Wales
Medium Neutral Citation: R v Warwick (No.67) [2019] NSWSC 536 Hearing dates: 10 May 2019 Date of orders: 10 May 2019 Decision date: 10 May 2019 Jurisdiction: Common Law - Criminal Before: Garling J Decision: See [16]
Catchwords: CRIMINAL PROCEDURE – trial – case management – listing for resumption of trial – change of solicitors and counsel – consideration of the accused’s right not to be tried unfairly l and the proper administration of justice Legislation Cited: Not Applicable Cases Cited: R v Warwick (No.64) [2019] NSWSC 163 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown
Leonard John Warwick (Accused)Representation: Counsel:
Solicitors:
K McKay / G Christofi (Crown)
E Ozen SC / S Climo (Accused)
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)
File Number(s): 2015/222068 Publication restriction: Not Applicable
EX TEMPORE Judgment (T.6117)
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The Court has engaged today in the determination of the appropriate dates for the resumption and further conduct of this part-heard trial.
Background
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On 15 May 2018, the trial of the charges against the Accused commenced. Evidence was first taken on 16 July 2018. The Accused was first arraigned before me on 3 March 2017, and with the consent of his then counsel, a trial date was fixed for 16 February 2018. That fixture was on the basis that a period of 11 months would be a more than adequate time for the resolution of all outstanding pre-trial issues and the proper preparation of the proceedings.
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I have recounted the chequered path of this trial in previous judgments of this Court which it is unnecessary to repeat. As the recent decision R v Warwick (No.64) [2019] NSWSC 163 demonstrates, the lawyers who acted for the Accused throughout 2018 determined that they would cease to act for him at the commencement of the law term in 2019. Consequently, a grant of legal aid was sought. The grant was made to the Accused in early March 2019.
New Lawyers
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Senior counsel and junior counsel were retained around 15 March 2019. For reasons which are unclear and perhaps do not need to be explored, senior counsel accepted the brief in circumstances where he had an existing six‑week professional commitment commencing in June, which he felt unable to cede to another counsel. Those six weeks comprise a trial anticipated to take four weeks from 17 June 2019 and a period of two weeks leading up to that time for preparation.
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However, there cannot be any doubt that the solicitor employed by Legal Aid NSW who was instructed to act for the Accused, and junior counsel, are competent and experienced lawyers in the criminal law field, who are well capable of appearing for and assisting the Accused.
Submissions of the Accused
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Submission has been made on behalf of the Accused that the trial in this matter ought not resume before October 2019. Senior counsel submitted that this lengthy further period would be necessary having regard to: the amount of work which he anticipates needs to be done; the volume of documents that need to be read; the time necessary to retain at least one, if not more, expert witnesses; and the period of time to enable proper consultation with the Accused and the obtaining of his instructions. Senior counsel indicated that he anticipated that the Accused would not require the attendance of a significant number of the 155 witnesses whose evidence remains to be called in the Crown case. Whilst he was unable to specify with precision the number of witnesses whom he anticipated would be required to be called, the sense which he conveyed to the Court was that it would be a relatively small percentage of those outstanding witnesses.
INTERRUPTION BY THE ACCUSED: “Well, that's wrong to start with, okay? That's not my instructions”.
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An issue which remains to be addressed is the question of the expert evidence available from various witnesses and, therefore, what expert issues might be expected to arise in the future course of the trial. Senior counsel indicated that he, together with his junior and instructing solicitor, wished to give consideration to whether any previous witnesses, particularly those who had given expert evidence, needed to be recalled for further cross-examination. No doubt the final view about those matters cannot be reached until he has had the opportunity, together with his junior and instructing solicitor, of consulting with those experts who have been retained by the defence. Senior counsel informed the Court that he thought he would be fully informed of the expert issues within a couple of weeks,
Submissions of the Crown
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The Crown does not oppose an adequate and reasonable period of time being allowed to the present lawyers for the Accused to prepare themselves for the continuation of the trial but submitted that the period to October would be excessive. The Crown indicated that it is in a position to proceed with the trial any time from now, subject to a short period to make the appropriate arrangements for witnesses available to be called.
Discernment
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The Court is called upon to balance a series of matters. Essentially though, it is a matter for the Court to ensure that the Accused does not receive an unfair trial and that, at the same time, the trial which is currently underway is conducted in a way which ensures the fulfilment of the administration of justice. In considering this question, it is appropriate to note that no requirement of a fair trial for an accused mandates giving the accused an unlimited period of time to be ready for the trial. What is mandated is that the accused has a reasonable opportunity to be prepared for a trial. In considering that question, in my view, I am entitled to have regard to the history of the trial as it has unfolded to date; the extent of the work which has been undertaken and the nature of the trial which has been undertaken to date; and, as well, the issues which have arisen and which, on the basis of the material before the Court, are likely to arise in the future.
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I have had careful consideration to all of these matters and, in particular, the interest of the Accused in having a fair trial. In my view, there is also an interest in the administration of justice, which is to be weighed in the balance, of ensuring that the trial proceeds as efficiently as it can.
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I should note that the evidence of the last witness was taken in December 2018 and no witnesses have been called since that time. At least ten months will have elapsed between the taking of consecutive witnesses in the proceedings if the Court was to accede to the submission of senior counsel for the Accused not to commence the trial until October. Such a lengthy period is undesirable.
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After all, the Court will be called upon in due course to weigh up the evidence of each of the witnesses by reference to their demeanour and what they have said, both in the witness box and when first setting out their account in a statement. Allowing any trial to be adjourned for such a lengthy period raises questions as to whether that assessment of demeanour may be adversely affected. I say "may be adversely affected" because it can be properly assumed that whilst a preliminary assessment of the demeanour of a witness has been made by the trial Judge, any conclusion in that respect must necessarily depend upon the submissions which are made by either the prosecution or the defence in due course about the acceptability of such evidence. Demeanour is but one small part of the assessment of a witness’ evidence. Nevertheless, it is undesirable to allow matters of that kind to remain outstanding for an unduly lengthy period.
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It seems to me that the Court has to have regard to all of those matters in fixing the resumption of the trial. I propose to make orders which set out the way in which the trial is to be conducted, and which give the Accused a significant period of time to be prepared for the balance of the trial. In making the provisions on the dates which I have identified and set aside, I do so on the basis of some assumptions that I have made having regard to what I have been told about the likely future course of the trial. Whether or not in due course those assumptions prove correct will remain to be seen. I should also say that if circumstances change either party is at liberty to apply to the Court for a reconsideration of the orders which I propose to make.
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I have determined that the following orders should be made, the effect of which is that the Court will set aside a period of time for the hearing and conclusion of the remaining lay witnesses in the Crown case that are to be called to give their evidence orally. The Court will then identify and set aside a time for any expert evidence to be called. Finally, the Court will set aside a time for the adducing of any evidence by or on behalf of the Accused if a decision to do so is made and, if not, for the submissions of the parties with respect to all of the issues in the trial.
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The aim of these orders is to bring the trial to a conclusion prior to the end of 2019.
Orders
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I make the following orders:
On or before 10 June 2019, the Accused is to notify the Crown of all remaining witnesses required for cross-examination. The Accused should do so by completion of the table comprising 24 pages produced by the Crown and headed “Witnesses Remaining to be Called in the Crown case”.
On or before 10 June 2019, the Accused is to notify the Crown of the names of any witnesses whose evidence is complete in respect of whom it is anticipated that an application for their recall will be made.
On or before 22 July 2019, the Accused is to serve on the Crown any application for the recall of any witness whose evidence is complete, together with all affidavits to be adduced by way of evidence in support of such application. Any such application will be heard by the Court on 2 August 2019.
On or before 22 July 2019, the Accused is to serve on the Crown an Outline of Submissions in support of any application for the recall of a witness.
On or before 22 July 2019, the Accused is to serve on the Crown all expert reports in addition to those already served, upon which he proposes to rely in his case.
On or before 29 July 2019, the Crown is to serve any evidence in response to an application to recall a witness and any submissions to be relied upon by it in opposition to such recall. If the Crown does not oppose the application, a note to that effect is to be delivered.
Fix the resumption of the Crown case, that is to say the hearing of the remaining witnesses required to be called in the Crown case, for 10am 29 July 2019.
The period of time set aside for the resumption of the Crown case on 29 July 2019 is estimated to last until 16 August 2019.
Fix the period for the calling of any expert evidence, either those witnesses for whose evidence leave has been granted to recall or any other expert evidence from 2 September 2019 to 13 September 2019 (inclusive).
Fix the period commencing 29 October 2019 for the Accused to present any evidence in addition to expert evidence upon which he wishes to rely or, alternatively, for final submissions to be made by the parties. That period will last as long as is necessary, but is presently estimated to conclude by 29 November 2019.
List matter for 2pm on 14 June 2019 for further directions before Garling J.
Grant liberty to apply to restore matter before Garling J on 24 hours’ notice.
Direct that whenever any documents in compliance with Orders 1 to 6 inclusive are served, a copy is to be delivered to the Associate to the Trial Judge.
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Decision last updated: 13 May 2019
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