R v Warwick (No.68)
[2019] NSWSC 1525
•29 July 2019
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:
Solicitors:
K McKay / G Christofi (Crown)
A R Connolly / E Ramsay (Accused)
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
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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".
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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.
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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.
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The trial of the Accused was listed to resume today, 29 July 2019, for the continuation of the taking of evidence in the Crown case. The Accused submitted, and the Crown agreed, that it was appropriate for the Court, before the resumption of that evidence, to hear and determine this Notice of Motion seeking a stay of the trial in the terms set out in [1] above.
Developments in Recent Days
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At the commencement of the proceedings this morning, the lawyer for the Accused informed the Court, on behalf of the Accused, that he intended to swear an affidavit in support of the orders that were sought. This proposed affidavit, it was said, would address the objections notified by the Crown. The Court was informed that arrangements had been made for the finalisation of that affidavit during a legal conference on Saturday 27 July 2019, but, due to movement of the Accused between correctional centres, it was not practically feasible for that conference to be held.
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The Court was asked this morning to stand down the commencement of the hearing of this Notice of Motion until an opportunity had been taken to obtain an affidavit from the Accused. This has occurred during the course of the day. The affidavit was finalised this afternoon.
The Evidence of the Accused
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The affidavit of the Accused in part refers to, and details, interactions between him and three lawyers appointed by Legal Aid to act and appear for him: Mr Ozen SC, Ms Climo of junior counsel and a solicitor, Mr Ashby. The affidavit also makes plain that, in respect of the interactions between the Accused and the three lawyers, the Accused, consequent upon advice received from his present lawyers, has waived any client legal privilege in his communications with Legal Aid and the lawyers appointed by Legal Aid to represent him.
Crown Response
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In order to consider what response, if any, ought be made by the Crown to the affidavit of the Accused, the Crown has made preliminary arrangements to interview the three lawyers retained by Legal Aid, tomorrow, 30 July 2019. The Crown then hopes to be in a position to obtain an affidavit from one or more of the lawyers and serve it, if so advised, by the end of Wednesday, 31 July 2019. This would enable the resumption of the hearing of the Notice of Motion on Thursday, 1 August 2019.
Future Procedural Steps
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In order to facilitate that course, I have raised with each of the parties the possibility of compliance with a regime of disclosure which would assist to ensure that this Notice of Motion is in a position to proceed on Thursday morning, 1 August 2019.
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I note the caution expressed by the Crown that, notwithstanding its best endeavours, the availability of the three Legal Aid lawyers may be limited, such that it may not be able to comply with the particular orders which I am about to pronounce. Recognising that, I will reserve liberty to the Crown or the Accused to seek to vary the orders if that becomes necessary.
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As well, it will be necessary for the lawyers for the Accused to get instructions from their client about the evidence that they anticipate the Crown will call. In order to facilitate this course, I have indicated that this Court would make its facilities available to the lawyers for the Accused to speak with the Accused over the audio visual link at a time to be agreed with the Correctional Centre authorities.
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By the making of the orders that will follow, it is anticipated that the hearing of this Notice of Motion will recommence on the morning of Thursday 1 August 2019. If not completed on that day, then it will resume on Monday 5 August 2019. The Court is not available to sit on Friday 2 August 2019.
Directions and Orders
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In order to facilitate the efficient preparation for, and hearing of, the Notice of Motion which is before the Court, I will give the following directions and make the following orders:
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;
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;
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;
Stand over the hearing of this Notice of Motion to 10am on Thursday 1 August 2019;
Direct that the Accused is to appear in Court in person at 10am on Thursday 1 August 2019;
Grant both parties liberty to apply on short notice with respect to these directions.
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Decision last updated: 05 November 2019