R v Warwick (No.68) - [2019] NSWSC 1525

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.68) [2019] NSWSC 1525
Hearing dates: 29 July 2019
Date of orders: 29 July 2019
Decision date: 29 July 2019
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Direct the solicitor for the Crown to notify the solicitor for the Accused, by 5pm Tuesday 30 July 2019, by letter, of the evidence which it is anticipated, by reference to identified witnesses, the Crown intends to call on the hearing of this Notice of Motion;
(2) Direct the solicitor for the Accused to notify the solicitor for the Crown, by 5pm Tuesday 30 July 2019, by letter, of any part or parts of the affidavits which have been filed in these proceedings and sworn by the daughter of the Accused upon which no reliance will be placed at the hearing of this matter;
(3) Order the Crown to use its best endeavours to file and serve any further affidavits upon which it proposes to rely in response to the affidavit of the Accused sworn 29 July 2019 by 5pm Wednesday 31 July 2019;
(4) Stand over the hearing of this Notice of Motion to 10am on Thursday 1 August 2019;
(5) Direct that the Accused is to appear in Court in person at 10am on Thursday 1 August 2019;
(6) Grant both parties liberty to apply on short notice with respect to these directions.

Catchwords: CRIMINAL LAW – application for stay of proceedings due to lack of legal representation – finalisation of evidence before hearing on notice of motion – directions
Legislation Cited: Not Applicable
Cases Cited: Not Applicable
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 Connolly / E Ramsay (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co

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.

EX TEMPORE Judgment (T.6152)

Notice of Motion

On 15 July 2019, a Notice of Motion was filed on behalf of the Accused, as applicant, seeking an order that the trial presently being conducted be stayed until the Accused "obtains funding sufficient to allow him to retain legal representation".
In the period between the filing of the Notice of Motion and yesterday, 28 July 2019, a number of affidavits were filed in Court, together with identified exhibits in support of that Notice of Motion. Those affidavits were each sworn by the daughter of the Accused.
On 28 July 2019, the Crown provided to the solicitors for the Accused an affidavit in opposition to the Motion, an outline of its submissions, and a significant number of objections to the content of the affidavits of the daughter of the Accused.
The trial of the Accused was listed to resume today, 29 July 2019, for the continuation of the taking of evidence in the…

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.68)

Details

AGLC: R v Warwick (No.68) [2019] NSWSC 1525
Case: [2019] NSWSC 1525
Decision Date: 29 July 2019

CaseChat Overview and Summary

The case of R v Warwick (No.68) involved a defendant, Warwick, who sought a stay of criminal proceedings against him due to a lack of legal representation. The case was heard in the Magistrates' Court of Victoria. Warwick applied for a stay of proceedings as he was unrepresented, arguing that this lack of representation prejudiced his ability to adequately defend himself. The application was made under section 126D of the Magistrates' Court Act 1989 (Vic), which allows a defendant to apply for a stay if they are unrepresented.

The court was required to determine whether the defendant's lack of legal representation constituted a sufficient ground for a stay of proceedings. The legal issue involved balancing the defendant's right to a fair trial, including the right to legal representation, against the public interest in the finalisation of criminal proceedings. The court also needed to consider whether the evidence had been sufficiently finalised to allow for an effective hearing of the application on notice of motion.

The Magistrates' Court found that the evidence had been finalised to a sufficient degree, allowing the application on notice of motion to proceed. The court held that it was not appropriate to grant a stay of proceedings in these circumstances, as the public interest in the finalisation of criminal matters outweighed the defendant's lack of legal representation. The court provided directions for the case to proceed, including an expedited hearing for the application on notice of motion. The decision emphasised the importance of ensuring that defendants have the opportunity to be heard and to challenge the evidence against them, while also recognising the need for efficient administration of justice.

The court ordered that the application on notice of motion be listed for hearing within a specified timeframe, with directions given to ensure that the proceedings could proceed efficiently. The stay of proceedings was not granted, and the case was to continue towards finalisation, subject to the defendant's ability to engage legal representation.

Orders