R v Warwick (No 69) - [2019] NSWSC 1059

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Warwick (No 69) [2019] NSWSC 1059
Hearing dates: 5-14 August 2019
Date of orders: 16 August 2019
Decision date: 16 August 2019
Jurisdiction: Common Law
Before: Fullerton J
Decision:
1. The Notice of Motion filed on 12 July 2019 is dismissed.
2. The trial of the accused, Leonard Warwick, is listed to resume before Garling J on 20 August 2019.

Catchwords:
CRIMINAL LAW – application for stay of proceedings due to lack of legal representation – where trial commenced in 2017 – where a grant of legal aid has been revoked and solicitor and counsel withdrew – whether the applicant has acted reasonably and is without fault in being unrepresented at the continuation of his trial - whether lawyers were at fault – where trial has previously been adjourned –dispute between applicant and lawyers as to the remaining witnesses to be called - whether it was unreasonable that the applicant sought written advice in relation to that question

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Crimes Act 1900 (NSW)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Cases Cited:
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Frawley v R (1993) 69 A Crim R 208
R v Batiste (1994) 35 NSWLR 437
R v Grosser [2003] SASC 193
R v IAS [2004] SASC 240; 89 SASR 15
R v Osborne [2002] VSCA 156; 133 A Crim R 519
R v Small (1994) 33 NSWLR 575
R v Warwick (No 2) [2017] NSWSC 1225
R v Warwick (No.63) [2019] NSWSC 41
R v Warwick (No 64) [2019] NSWSC 163
R v Warwick (No 66) [2019] NSWSC 317

Texts Cited:
Not Applicable

Category: Procedural and other rulings
Parties: The Crown
Leonard John Warwick (Applicant)
Representation:
Counsel:
K McKay / G Christofi (Crown)
A R Conolly (Applicant)
Solicitors:
Director of Public Prosecutions (Crown)
AR Conolly & Company Lawyers (Applicant)

File Number(s): 2015/222068
Publication restriction: Suppression order in relation to the names of the applicant’s wife and daughter: see R v Warwick (No 7) [2018] NSWSC 236.

Judgment

Preliminary observations

By Notice of Motion filed 12 July 2019, Mr Leonard Warwick (the applicant) applies to have his trial, which is part heard before Garling J, temporarily stayed to enable him to obtain legal representation.
That relief is sought in circumstances where Mr Ertunc Ozen SC, with Ms Siobhain Climo of counsel, retained by Legal Aid NSW to represent the applicant at his trial, instructed by Mr Nicholas Ashby, solicitor, withdrew from the trial proceedings on 14 June 2019. On the same date, leave was sought and granted for Mr Ashby to withdraw.
Mr Alan Robert Conolly and Ms Elizabeth Ramsay, solicitors with AR Conolly & Company Lawyers, appear on the Notice of Motion pro bono. They have no retainer to appear for the applicant on the resumption of the substantive trial proceedings.

The history of the trial proceedings from 3 March 2017 to 29 January 2019

Garling J is presiding over the applicant’s trial without a jury as provided for in s 132 of the Criminal Procedure Act 1986 (NSW).
The applicant was arraigned before his Honour on 3 March 2017, at which time he entered pleas of not guilty to each of 24 counts, including four counts of murder, allegedly committed between 1980 and 1985 contrary to s 18(1) of the Crimes Act 1900 (NSW). The remaining counts on the indictment, variously charged contrary to ss 28, 30, 46 and 204 of the Crimes Act, relate to allegations that the applicant placed explosives in a vehicle and near a building either maliciously or with intent to murder or to cause grievous bodily harm. Three of the 24 counts are charged in the alternative.
Before the trial was fixed to commence on 18 February 2018, his Honour delivered a number of pre-trial rulings, the most significant of which concerned the admissibility of tendency and coincidence evidence, the subject of three notices served by the Crown on 22 June 2017 in accordance with ss 97, 98 and 101 of the Evidence Act 1995 (NSW). At the time of the service of those notices, the applicant was represented by Mr Thomas of counsel, instructed by Havas and Dib Lawyers. They also appeared at the pre-trial hearing.
On 6 October 2017, his Honour published a judgment in which he found that having regard to the similarities in the circumstances in which each of the seven Events which give rise to the 24 counts on the Indictment occurred, and in the events themselves, the evidence identified by the Crown as both coincidence evidence and tendency evidence was available in proof of all counts on the Indictment: R v Warwick (No 2) [2017] NSWSC 1225. In reasoning to that conclusion his Honour was satisfied that each of the seven Events occurred at the time when the applicant's Family Court proceedings were on foot. He was also satisfied that the intended target of each count on the Indictment (including the four murder counts) related in some way to issues of child custody and/or the distribution of matrimonial property adverse to the applicant’s interests in the Family Court proceedings. His Honour also found that save for two counts of murder by use of a firearm (being the murder of the applicant's brother-in-law, Mr Blanchard, and the murder of Justice David Opas) the balance of the counts on the Indictment involved the detonation of an explosive device, including at the home of Justice Richard Gee, as a result of which the judge sustained serious injuries, and the home of Justice Raymond Watson where the judge’s wife, Ms Pearl Watson, was killed.
On 24 November 2017, Havas and Dib Lawyers withdrew from the proceedings. Thereafter, until 10 April 2018, on the various occasions when the trial was called over by Garling J, Mr Thomas (on occasion led by Anthony Bellanto QC) remained in the proceedings, by that time instructed by AR Conolly & Company Lawyers, including an appearance on 9 February 2018 when, on the applicant's motion, the 19 February 2018 trial date was vacated and a new trial date of 14 May 2018 appointed. On or about that date, the Court was advised that Mr Conolly would be appearing without counsel to conduct the trial on the applicant’s behalf.
The substantive trial proceedings ultimately commenced before his Honour on 15 May 2018 with the Crown’s opening address. As a result of multiple applications by Mr Conolly for an adjournment in which he sought more time to prepare for the applicant’s trial, the trial did not commence with the calling of the first Crown witness until 16 July 2018.
By 20 December 2018, when the trial adjourned for the law term vacation, the trial had proceeded, although not without interruption, over 99 sitting days. Seventy-one witnesses were called by the Crown and cross-examined by Mr Conolly. Twenty-one witnesses gave opinion evidence in areas of specialised knowledge, including in ballistics, explosives, DNA and handwriting. The trial transcript comprised 6,000 pages, however only 4,361 pages involved evidence of witnesses in the proceedings. The last witness was called on 13 December 2018.
On that date, Garling J invited the parties to consider whether, in light of the evidence that had been called over the course of the trial to that date, and in light of the issues that his Honour regarded as the critical issues to be litigated in the trial, all or most of which had been adduced in the evidence by that time, all of the remaining 155 witnesses in the Crown Index of Witnesses needed to be called to give oral evidence and cross-examined (T5667). He offered the following analysis:

….- it seems to me that the witnesses in that document can be categorised in these ways, and I will use the order number given in the document, not the statement number in the Crown Brief, and these are just convenient descriptions: Witnesses numbered 1 to 4 might fall into a category generally.
Witnesses 5 to 11 seem to me to deal with Event number 6, the vehicle bomb.
Witnesses 12 through to and including 56 deal to the Kingdom Hall bombing.
Witnesses 57 to 63 deal with the proceedings between the accused and Ms Blanchard in the Family Court.
Witnesses 64 through to 84 seem to me to deal with Event number 1, the murder of Mr Blanchard in February 1980.
Witnesses 85 through to 102 seem to deal with Event number 2, the murder of Justice Opas.
Witnesses 103 to 113 seem to me to deal with Event number 3, the bombing of the home of Justice Gee.
Witnesses 114 to 120 seem to me to deal with the explosion at the Family Court Building at Parramatta in April 1984, Event number 4.
Witnesses 121 through to and including 137 seem to me to deal with Event 35 number 5, the bombing of the home of Justice Watson.
Witnesses 138 through to and including 200 seem to deal with Mr Mariti and possibly other individuals who may have committed one or more of the crimes the subject of this trial.
Witnesses 201 to 206 are in a similar category but deal with Mr Shaoukat Abroo.
Witnesses 207 to 212 go back to the vehicle bomb, Event number 6.
Witnesses 213 through to 227 seem to go back to the Kingdom Hall bombing, Event 7.
The balance of the witnesses seem generally to be regarded as evidence generally about various matters of relevance. I haven't undertaken the examination of the witnesses on page 6 of the document dealing with what's called "possible further witnesses".
In respect of the witnesses so categorised, I would be interested in being informed whether that categorisation is correct, whether from the Crown perspective it has given consideration to whether each of those witnesses is necessary and ought be called, and from the perspective of the accused whether there are witnesses there who do not require to be called. Witness 86 was the paramedic who attended to the late Justice Opas. Just what he could add to anything is entirely unclear to me.
If one looks at the witnesses identified as being related to the Family Court Building bombing, witness 116 gives evidence of searching records and obtaining a certificate. Again, having looked quickly at that statement, I would be very surprised if it was in dispute.
Witness 137, Dr Sylvia Hollinger, carried out the post-mortem on the late Mrs Watson. Quite what that adds to anything that could possibly be disputed in this case I do not know.
Witness 136, Dr Kennedy, examined the late Justice Watson at hospital and records the injuries which he sustained. Again, quite what debate there is about those matters I simply find it difficult to fathom.
Now, what I need the parties to do between now and when this discussion takes place is to turn their minds to that which I have outlined because it seems to me that without such careful attention, even if the task is started by next Tuesday and may not be able to be completed, there is a real risk that unless the parties address it, the length of this trial will be unduly extended.

On 18 December 2018, the Crown provided the Court, at his Honour’s request, with a 24 page table headed “Witnesses Remaining to be Called in the Crown Case” (referred to in these proceedings as the “Schedule of Witnesses”). The document was prepared by the Crown referable to the index to the Crown Brief.
The Schedule identified by name the 155 remaining lay witnesses according to the event to which their evidence related. The Crown also indicated for each witness whether it intended to rely upon the witness’s evidence. There was also provision for the Crown to indicate whether their evidence appeared to be uncontroversial and whether the statement might be tendered subject to admissibility as to any part of the statement, without the need for the witness to attend to give oral evidence and be cross-examined. Finally, there was provision on the Schedule for the defence to indicate whether, irrespective of the Crown’s position, they wanted a witness called for cross-examination or whether they would agree to their statement being tendered, subject to amendment.
On 18 December 2018, his Honour made an order that on or before 4pm on 23 January 2019 (the date fixed for the resumption of the trial) the applicant was to serve on the Crown and the Court a response to the Schedule of Witnesses.
No response has been served on the Crown or provided to the Court to date.

AR Conolly & Company Lawyers withdraw

On 29 January 2019, the date fixed for resumption of the applicant’s trial, Mr Conolly informed the Court that his retainer to appear for the applicant had been terminated because the applicant could no longer privately fund his defence. Mr Conolly informed his Honour that he would continue to appear pro bono on the Notice of Motion, filed that day on behalf of the applicant, seeking a 12 week adjournment of the trial.
There is no evidence on this application or otherwise in the transcript of the trial proceedings, as to what transpired between the applicant and his solicitors between 18 December 2018 and 29 January 2019 with respect to their failure to comply with his Honour’s orders. An affidavit from Ms Ramsay (a solicitor employed by AR Conolly & Company Lawyers) was read in support of the adjournment application, in which she stated that they “continued to act for Mr Warwick on a limited basis since December 2018”, did not address the issue.

The first application for a temporary stay of the applicant’s trial

On 31 January 2019, the trial was adjourned until 11 March 2019 (R v Warwick (No 63) [2019] NSWSC 41). On that date, his Honour also directed that any Notice of Motion for a temporary stay of the trial beyond 11 March 2019 would be heard on 18 February 2019. A timetable was set for the service of evidence and submissions in the event that a Notice of Motion was filed.
By Notice of Motion filed 7 February 2019, the applicant sought a temporary stay to allow him the opportunity to secure legal representation (the same relief he seeks in the Notice of Motion filed on 12 July 2019).
That application was heard by Garling J between 18 and 21 February 2019. Mr Conolly appeared in those proceedings.
On 28 February 2019, although his Honour delivered a judgment on the stay application, he did not make final orders (R v Warwick (No 64) [2019] NSWSC 163). He did find, however, on application of the principles in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, that the applicant was both indigent and without legal representation without fault on his part and, further, that unless he could secure legal representation for the continuation of his trial on an indictment charging serious offences, the trial should be stayed. Rather than making a formal order to that effect, his Honour invited the applicant to make a further application for a grant of legal aid to fund his continued defence at public expense, having noted in the course of the judgment that an earlier application for legal aid had been granted subject to conditions that the applicant could not meet, including that he procure from his wife a charge over the matrimonial property.
In the course of that same judgment his Honour set out, in considerable detail, the history of the proceedings to that date, including the circumstances in which AR Conolly & Company Lawyers acted in the pre-trial proceedings and thereafter when they were first retained by the applicant to appear for him at trial without counsel, and the arrangements which were in place from that time for the applicant to privately fund the costs of his trial. In that regard, his Honour also noted that, until the solicitors terminated their retainer on 29 January 2019, the applicant had incurred costs in the amount of $4,581,729, the quantum of which attracted comment at [80]-[86].
On 15 March 2019, the final judgment on the applicant’s application for a temporary stay was delivered (R v Warwick (No 66) [2019] NSWSC 317). The application was refused in circumstances where, on 6 March 2019 when the trial was next called over before his Honour, the Chief Executive Officer of Legal Aid NSW appeared and informed his Honour that the applicant had been granted legal aid, effective from 4 March 2019, without the condition to which the earlier grant had been subject. As the evidence on this application makes clear, legal aid was granted on terms that a solicitor from Legal Aid NSW would be instructed to represent the applicant, and that either a public defender or a barrister from Legal Aid's Complex Indictable Panel would be briefed to appear at the applicant’s trial.
On 8 March 2019, Mr Ashby, a solicitor with Legal Aid NSW, appeared before his Honour and announced his appearance for the applicant. Mr Ashby informed the Court that it was his intention, as the solicitor with conduct of the proceedings, that senior and junior counsel would be briefed to appear in the continuation of the applicant’s trial under his instructions.
In a document entitled “Authority to Act”, signed by the applicant on 9 April 2019, he confirmed that:

… the legal representatives listed above [Ertunc Ozen, Siobhain Climo, and Nicholas Ashby] are the only ones who I wish to act in, prepare, and obtain materials on my behalf in this trial.

On Mr Ashby’s application his Honour adjourned the proceedings until 15 March 2019 to allow him the opportunity to confer with the applicant, to confer with counsel, and then to arrange for the applicant and counsel to confer as to the further conduct of the proceedings and to confirm the applicant’s instructions.
On 15 March 2019, Mr Ozen SC, Ms Climo and Mr Ashby appeared before his Honour. Mr Ozen sought a six month adjournment to prepare for the trial. It is necessary to extract part of the transcript of proceedings of that day and 10 May 2019 (when Mr Ozen, Ms Climo and Mr Ashby again appeared before his Honour) given Mr Conolly’s attack on the propriety of Mr Ozen’s approach:

OZEN: … Your Honour, the Legal Aid Commission briefed the public defenders' office last week with this matter. I can inform your Honour that in that time, I haven't had very much opportunity to get myself across the Crown allegations, other than the Crown case statement and a couple of your Honour's judgments, in particular, judgment number 64 in this case.
….
In order to properly prepare Mr Warwick's defence, I of course, not only need to read the Crown Brief, the transcript, the subpoenaed material and the expert reports that may or may not have been obtained on his behalf but, I, of course, have to confer with this person in custody in order to make decisions, not just about what evidence to call, but, of course, the very important decision as to whether Mr Warwick gives evidence in this case.
Your Honour, knowing what I do about this case, in order to properly prepare a defence and, your Honour will note, your Honour fortunately something unusual in criminal cases these days, I have been granted the opportunity to have a junior to assist me, even with that assistance, our best estimate is that it will take us months rather than weeks to prepare.
It is impossible to know at this stage, but simply looking at the number of pages and having some idea of the issues that are in the Crown case statement, it is my submission that your Honour would allow me and Ms Climo six months to prepare this case.
I understand the Crown is proposing a staged approach where, at various points, agreements might be made and filed with the court.
I can tell your Honour that from the little that I know about this case, as I understand it, the most important witnesses have already been called. If the majority of the remainder of the witnesses are in the nature of eye witnesses, people who might give some evidence about layout and so on, I anticipate that given the time to prepare, that I would be in a position to inform the Crown that there would be no objection to the tender of a large amount of what is remaining in the Crown case.
I say that for this reason: As I understand it, the experts, or most of them, have already been called. That seems to me to be a major area of contention between the Crown and the accused.

A large number of witnesses would go to things such as observations. I take an example: Joggers were running past a car or a person that they describe in a particular way. There does not seem to me, with respect, to be a great deal of utility in asking a person 35 years later about the colour of the jumper of the person they saw, the street lighting, the foliage and the number of trees in the area. It doesn't seem to me to take the matter very far one way or the other, and that is of course, a forensic decision I would make, together with my junior but, on its face, it seems to me that the majority of what remains in the Crown case, if I am permitted to consider it properly, can be resolved without the need to call 150 further witnesses.
….
HIS HONOUR: I have sat in this trial, Mr Ozen, now, for a very long time and I have heard predictions and I treat them as predictions, nothing more. So what position is the court in in six months' time if we then start 155 witnesses?
…
OZEN: All I can say about that, your Honour, is firstly it is not my practice to simply have witnesses called for the sake of it.
HIS HONOUR: I am sure it is no experienced lawyer's practice in a criminal trial, Mr Ozen, but sometimes different people take different views and it remains an open view.
OZEN: Secondly, the position with respect to the remaining witnesses is not improved by giving me less time because I‑‑
HIS HONOUR: Well, why not?
OZEN: Because‑‑
HIS HONOUR: Let us just take as an example, you have no doubt seen ‑ at least had a chance quickly to look through the Crown list of remaining witnesses. I don't suggest that you know who they all are or what they all are, but they readily fall into identifiable categories.
OZEN: Yes, your Honour.
HIS HONOUR: The question of approaching your preparation, rather than you might ‑ assuming you received a brief well before a trial was fixed, noting you receiving a brief in the course of what has been a very long trial to date ‑ it may well be that the better approach is to concentrate on those witnesses for the moment, first to decide what it is that might lead you to have them called or not; and in fact, to get the trial underway with the approach that you are anticipating, of not needing a great number of witnesses to be called. Mr Ozen, in no way am I suggesting you are bound to that position, I simply take it as an indication of your present thoughts on the matter‑‑
OZEN: Thank you.
HIS HONOUR: ‑‑and then as the trial proceeds to take additional time. So, for example, ordinarily in a trial one would expect addresses to start at the conclusion of the trial of the evidence.
OZEN: Yes.
HIS HONOUR: In a trial such as this, of the size such as this, with your being briefed during the course of it, there would no doubt be some persuasive arguments put that that ordinary course should not be followed, but that you and those that assist or instruct you be given significantly more time to ensure that you have the opportunity to put all of the relevant submissions to the court.
In other words, it may be that some of the time that you, in effect, predict you might use now may be time which is in fact better used at a different stage of the trial and that approach, even if it also meant from time to time for particular witnesses providing time during the course of the trial would ensure that the trial would not lose its momentum.

On 10 May 2019, Mr Ozen, Ms Climo and Mr Ashby again appeared before his Honour, and the following exchange occurred:

OZEN: ... Your Honour, we have also been able to get through much of the material that comprises witnesses to be called. It is our view, with respect, that very little, if any, further oral evidence would be required, at least from the defence perspective.
HIS HONOUR: Sorry? Let me just clarify that. We are talking of witnesses proposed to be called by the Crown?
OZEN: Yes, your Honour.
HIS HONOUR: We are still in the Crown case.
OZEN: Yes, of course.
HIS HONOUR: Very well.
OZEN: So your Honour, to try and make myself clear about that‑‑
HIS HONOUR: What you are saying is unless the Crown is going to call the witness and adduce some further evidence or explanation or other material, there are very few of the witnesses presently on the list that you would require to be called
OZEN: Yes, your Honour. We are almost finished that process; but I can indicate, with a very high degree of confidence that I should, "we should", be in a position in the next week or so where we can indicate to the Crown which, if any, of the witnesses we require for cross‑examination and I can tell your Honour and my friend that that is not going to be a very big list.
The bulk of the remaining the bulk of the remaining witnesses seem to us to have marginal relevance to what we discern are the major issues in this trial.
There are of course statements from witnesses that refer to things that could be construed as admissions. They are matters that will obviously have to be explored in the usual way; but for the remainder, given the age of the matter, the sorts of issues that we are dealing with, it seems, with respect to us, there is very little utility in having people come take time out of their lives to recite what was in a statement many years ago. So I am confident that at least, with respect to that aspect of the case, that our efforts thus far have shown that we could probably shorten what otherwise might be thought to be the amount of time left in this trial. That is something that I am confident that the Crown and I can agree on in fairly short order, so the first submission I make is that your Honour might consider an order to the effect that the parties file within a month a list of remaining witnesses to be called to give oral evidence in the Crown case. The corollary of that of course is that the parties file a list of witnesses whose evidence can be tendered. Your Honour has of course the Crown Brief.
HIS HONOUR: Well, there is already a 24‑page list of the remaining witnesses.
OZEN: Yes, your Honour.
HIS HONOUR: And it simply needs, does it not, the completion of the column which is at the end of that list?
OZEN: Yes, your Honour. That's what I envisage when I say "file list"; it might be a list of five or ten people that are going to be called to give evidence. Whichever format is of most assistance to the court, what I am saying is that the first thing that we can do is, within a month, to be able to put the court in a position where everybody is aware of what is left, in terms of oral evidence.
…..
Ozen: Just before we do, your Honour, I may be misunderstanding this, but what I have tried to submit today is that we have been working almost continuously on this matter since the last mention.
His Honour: Save for each of you taking periods of leave. Now, I'm not critical of that, but‑‑
Ozen: I may have taken leave, your Honour, but I took the work with me and I can indicate to your Honour that I did between four to six hours a day because I anticipated there might be some criticism of the defence team.
His Honour: I'm not surprised you anticipated that, Mr Ozen. This is a case in which the Court, if it accedes to your application, will have given this accused over two years of preparation time to one or other of his lawyers.
Ozen: With respect, that ought not to be sheeted home to his current representatives, your Honour.
His Honour: But Mr Ozen, if he chooses or has lawyers that don't appear for him again, the Court's going to be confronted again with a similar proposition. We can't run this trial only on the basis that every time the accused retains different lawyers, we all start again. Now, at some stage the accused's position has to be that he has had the benefit of six months of trial so far, that one starts on the basis that that's the way in which his then lawyers conducted it. And one has to look at not starting the trial all over again, but arrangements to ensure the continuation of the trial.

His Honour published an ex tempore judgment on 10 May 2019, in which he gave directions for the further conduct of the trial consistent with his direction that the trial resume on 29 July 2019. His Honour made the following orders:

1. 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”.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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).
10. 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.
11. List matter for 2pm on 14 June 2019 for further directions before Garling J.
12. Grant liberty to apply to restore matter before Garling J on 24 hours’ notice.
13. 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.

The orders made by his Honour on 18 December 2018, the subject of the first direction made on 10 May 2019 (above), are relevant to this application in a number of ways. In the context of his Honour's knowledge of evidence and the issues that had crystallised by December 2018, including the cross‑examination by Mr Conolly of 21 expert scientific witnesses, 16 police witnesses and 34 civilian witnesses called by the Crown to prove the facts relating to each of the seven Events comprehended by the 24 counts on the Indictment, it is unsurprising that his Honour saw the need for the applicant to focus on the remaining witnesses over the six week adjournment from 20 December 2018. When nothing was done to address that issue by the time the applicant’s former solicitors withdrew, it is hardly surprising that on the appointment of new lawyers for the further conduct of the trial, the same issue presented.
It was that very issue, amongst others, to which the applicant’s attention was directed in the first telephone conference with his counsel and solicitors on 15 March 2019. The conference notes of that date record:

Introductions – general discussion about size of brief and probable time needed to prepare – discuss transcript (size) and what we proposed asking the judge – will need to discuss witnesses and utility of having all of them come for xx …

Each of the 13 conferences convened between 15 March 2019 and 7 June 2019 addressed the need to complete the Schedule of Witnesses in accordance with his Honour’s directions.
On 21 May 2019, the applicant signed a set of written instructions governing the terms upon which the relationship of lawyer and client would continue:

1. I, Leonard Warwick instruct my lawyers, namely Ertunc Ozen SC, Siobhain Climo of counsel and Nick Ashby of Legal Aid NSW as follows:
2. I was attended in conference via audio- video link by Mr Ozen, Ms Climo and Mr Ashby at 10.00 on 14 May 2019 for approximately 1 hour 30 minutes. This followed a directions hearing at the Supreme Court of NSW before Garling J on 10 May 2019.
3. One of the directions the judge made concerned the notification by the defence to the Crown of the non-expert witnesses that should be called in the remainder of the prosecution case. The defence are to notify the Crown which witnesses are required by 10 June 2019.
4. I have been provided with a table of the remaining Crown witnesses and I also have a copy of the Crown e-brief and have had the opportunity to read the statements of the outstanding witnesses.
5. I understand that my lawyers have a professional duty to follow my instructions. However, as has been explained to me on 14 May and on earlier occasions by Mr Ozen and Ms Climo, I understand that my lawyers have an over-riding duty to make forensic decisions on my behalf about which Crown witnesses should be called for cross-examination.
6. I understand that my lawyers will have regard to my instructions in making decisions over which witnesses will be called and challenged, but that this will not over-ride my lawyers' final decisions over the witnesses to be called.
7. I understand that where the evidence from any particular witness is uncontroversial, does not affect my case or is irrelevant, that it is very unlikely such a witness needs to be called for cross-examination by my lawyers.
8. I understand that if I am dissatisfied with my lawyers' advice about which witnesses should be called or more generally about my case, I do not have to accept this advice and I am free to terminate my lawyers' instructions, in other words I may sack my lawyers at any time.
9. I understand that if my lawyers are unable to competently represent me as they do not have sufficient time to prepare my case, they may also have to cease to act in these proceedings.
10. I have read these instructions and sign below voluntarily and without any pressure placed upon me.

On 10 June 2019, the applicant's daughter sent an email to the Chambers of Garling J:

To dear The Honourable Justice Garling, of the supreme court of New South Wales.
My name is ... and I am the daughter of Leonard John Warwick (case number; 2015/00222068) .
Your Honour, you are currently attending to my fathers trial and he has asked me to please deliver this message to you, as a matter of putting this on record.
In Mr Leonard John Warwick’s words he says: “At the meeting with my legal aid lawyers on the 7th of June 2019. I feel that I was bullied by Mr. Ozen into agreeing to the changes to the prosecutors list of witnesses that he wanted. His threat was that if I did not agree to the changes he would withdraw from the case, which would leave me with no legal defense. So I reluctantly agreed to his demands.”
Thank you for taking the time to read this email.

Legal Aid NSW and counsel withdraw

On 14 June 2019, Mr Ozen appeared before his Honour with Ms Climo to inform the Court that his retainer to act for the applicant had been terminated. Mr Ozen also sought his Honour’s leave for Legal Aid NSW to withdraw from the proceedings.

OZEN: Regretfully, I must inform your Honour that this is a matter from which we must withdraw. Because of how late those circumstances have arisen, my solicitor has not been in a position to file the relevant notice, not just within the time set out, but at any time before today. I have informed my friend of that situation. I have a notice of motion seeking leave be granted to the Legal Aid Commission of New South Wales to file the relevant notice and, indeed, the notice itself. Can I hand those documents up to your Honour?
HIS HONOUR: Yes.
OZEN: Yes, your Honour.
HIS HONOUR: That is the retainer of you and your junior and your solicitor?
OZEN: Yes, your Honour. I am not at liberty to go into the details of—
HIS HONOUR: I am not asking you for the details, I am asking you for the fact of what has occurred.
….
ACCUSED: Yes, well, that may well be the only course of action, but the point is I did not withdraw the retainer. I simply sent you an email complaining about his bullying of me into agreeing to changes to the Prosecutor's list of witnesses that he wanted. If that amounts to the same thing, then fine, so be it. I never actually sacked him.
…..
OZEN: Just before your Honour perfects your orders, might I simply add this, that had our instructions not been terminated this morning, as at this week I had come to a determination that I must withdraw from the matter, and your Honour would be familiar with the bar rules, of course, and Bar Rule 101 sub rule (f).
…
HIS HONOUR: Mr Warwick, I will adjourn the matter until 9am next Friday when I will ensure that your appearance takes place over the AVL in the usual way, and on that date I will hear from you as to what arrangements, if any, you have made or intend to make with respect to further legal representation.
I should emphasise to you that the trial is fixed to recommence on 29 July, which is now about six weeks away, and that the issue of whether you are represented or not by the time the trial is fixed to recommence is a matter entirely within your control and it is only one, and certainly not the only matter, which the Court takes into account in considering the resumption of the trial. In other words, the mere fact that you may not be represented at the time the trial is due to recommence on 29 July does not mean that you should think that the trial will not recommence because the trial has started, it has been adjourned through difficulties with your representation in January, or late January, early February, and now again, and the Court will need to keep fairly in mind the issue of the continuation of the trial, even if you are unrepresented, that is to say even if you are appearing without a lawyer. All right?

Leave was granted and the trial was adjourned to 21 June 2019.
On 21 June 2019, Mr Conolly appeared for the applicant. Mr Conolly informed the Court that he was instructed to act on a limited, pro bono basis to investigate Legal Aid’s withdrawal from the matter. His Honour questioned the applicant about his preparedness for the recommencement of the trial on 29 July 2019 and his position vis-a-vis the Schedule of Witnesses.
On 15 July 2019, a Notice of Appearance was filed by Mr Conolly, to appear at the hearing of the application for a temporary stay of the trial in accordance with the Notice of Motion filed on 12 July 2019.
Between 29 July 2019 and 1 August 2019, his Honour gave directions for the filing and serving of evidence and submissions in support of the stay application. The application was fixed for hearing on 5 August 2019.
On 5 August 2019, the hearing of the application for the temporary stay commenced over which I presided.

The evidence on the stay application

After ruling on objections to the affidavits upon which the applicant relied, the following affidavits were read:

Affidavit sworn by the applicant's daughter on 12 July 2019.

Supplementary Affidavit sworn by the applicant's daughter on 17 July 2019.

Affidavits sworn by Leonard Warwick on 29 July 2019 and 2 August 2019.

Only Mr Warwick was required for cross-examination.
In further support of the application the following exhibits were tendered:

Exhibit 1: Schedule of objections to the applicant's daughter's affidavits on the stay application.

Exhibit 2: NSW Justice Health Records as they relate to the applicant’s admission to Westmead Hospital in January 2019 and various diagnoses and treatment administered for his diabetes.

The Crown relied upon the following affidavits:

Affidavit sworn by Nicholas Ashby on 31 July 2019 including the following annexures:

Annexure A headed “Table of Conferences with Client” outlining conferences held with the applicant and including details of the attendees and substance of the discussions with the applicant (“the conference notes”).

Annexure B being a final settled version of the Schedule of Witnesses to be called and the defence position set out, in accordance with the direction of Garling J of 10 May 2019. This document represented counsel’s advice provided at the conference held with the applicant on 31 May 2019. It was not served on the Crown or the Court, the applicant having constructively declined to instruct his lawyers to do so.

Annexure C headed “Authority to Act” and signed by the applicant on 9 April 2019.

Annexure D headed “Instructions in relation to Crown non-expert witnesses” signed by the applicant on 21 May 2019 (see 33 above).

Annexure E being an email sent by Mr Ashby to Mr Conolly on 31 May 2019 regarding Mr Conolly’s continued involvement in the applicant’s criminal proceedings.

Annexure F being a letter from Mr Conolly dated 31 May 2019 in reply to that email.

Annexure G being an email dated 6 June 2019 sent by the applicant's daughter on the applicant's behalf entitled “FW: Willing to compromise under protest”.

Annexure H being an email received from Garling J's Associate dated 11 June 2019.

Affidavit sworn by Siobhain Climo on 6 August 2019.

Both Mr Ashby and Ms Climo were required for cross-examination.
The Crown also tendered the following exhibits:

Exhibit 3: An index of witnesses forming part of the Crown’s Brief, as served on applicant by the Crown in the first half of 2018, entitled “Order of Witnesses for Trial”.

Exhibit 4: A letter dated 10 May 2019 from Legal Aid NSW to the applicant, outlining orders made by Garling J on that day.

Exhibit 5: A schedule of witnesses remaining to be called by the Crown.

Exhibit 6: A USB of the Crown Brief (the “e-Brief”).

Exhibit 7: A letter dated 15 May 2019 from Legal Aid to the applicant with a document headed “Instructions in relation to Crown non-expert witnesses” enclosed.

Exhibit 8: The Authority to Act signed by the applicant on 9 April 2019.

On 14 August 2019, I reserved judgment on the Notice of Motion.

Relevant legal principles

The law that governed the application for the temporary stay of proceedings determined by Garling J in February 2019 (R v Warwick (No 64) [2019] NSWSC 163) as set out by his Honour at [15]-[22] of his Honour’s judgment does not, on a strict analysis of the relief that is sought by the applicant on this application, govern these proceedings.
The relief sought in the Notice of Motion filed on the earlier stay application appears to mirror the relief sought in the current application (in the sense that a temporary stay was sought then and now until such time as the applicant is able to secure legal representation) on this application. However, unlike the earlier stay application, there is no evidence on this application that the applicant has any prospect of securing legal representation at any time in the future. There is nothing in the evidence to suggest that he has access to funds to retain private lawyers or that he has been offered, or might be provided with, pro bono legal assistance, and nothing to suggest that any enquiries have been made of Legal Aid NSW as to prospects of him being considered as a candidate for a fresh grant of legal aid or that an application for a grant of legal aid has been lodged and is under consideration. Finally, there is no evidence that the applicant has any prospect at all of receiving any other source of public funding.
Even were I to find the termination of the applicant’s relationship with Legal Aid NSW, and with counsel retained by them to act on his behalf, was his fault (in the relevant sense), but that there remained a reasonable possibility that the applicant might obtain alternate legal representation without unacceptable delay, the question whether, as a matter of discretion, after a balancing of the competing interests, the stay ought be granted to secure that representation would arise (see R v Small (1994) 33 NSWLR 575 at 590-591). The present application is not, however, advanced on that basis. Having regard to the way the application has been advanced and the evidence adduced by the applicant to support it, it seems to me that the applicant is, in reality, seeking an adjournment of the trial to allow him some additional time to prepare to represent himself.
That analysis is subject to one important proviso. Were I satisfied that the applicant is currently without legal representation through no fault of his own, that is, were I to accept Mr Conolly’s submissions that the dissolution of the lawyer/client relationship that Mr Ozen notified to Garling J on 14 June 2019, was not precipitated by any unreasonable conduct on the applicant’s part, but was instead a product of unprofessional conduct on part of each of the lawyers (including an unreasonable response by them to the email the applicant sent to the trial judge on 10 June 2019), there might be a theoretical prospect that the applicant might be considered as a candidate for a fresh grant of legal aid.
In making that observation, I should not be taken to suggest that Legal Aid NSW might, or even less that they should, look favourably on any fresh application for a grant of legal aid. I am simply making the observation that were I to make a positive finding that the applicant's conduct in his dealings with his lawyers was reasonable in all the circumstances, including, most importantly, that he discharged his obligation to give careful consideration to their advice and their request for instructions to facilitate the further conduct of the proceedings in accordance with the timetable set by Garling J on 10 May 2019 for the resumption of the trial, then, notwithstanding the waste of public money in the 12 weeks between about 14 March 2019 and 14 June 2019, it might be that there is at least some prospect that legal aid would be reinstated and legal representation provided pursuant to that grant for the resumption of the trial.
Irrespective of the precise characterisation of the relief the applicant seeks, an enquiry into the circumstances in which he is currently without representation in the substantive trial proceedings is unavoidable. As the collected authorities to which I will presently refer make clear, the focus of that enquiry is whether I am satisfied the applicant is without representation through no fault on his part. Unlike the approach Garling J took in resolving to grant a temporary stay in R v Warwick (No 64) at [195]-[205] in accordance with the principles in Dietrich, I am not concerned with whether a trial in which the applicant is unrepresented will be unfair. Neither am I concerned with whether a trial in which an accused appears unrepresented and is convicted will amount to unfairness giving rise to a miscarriage of justice. Those issues may arise at another time but they do not arise on this application.
The authorities that have considered whether a trial judge’s refusal to grant an adjournment to an unrepresented accused was ultimately productive of a miscarriage of justice do, however, guide me as to the approach I should take on this application since in those cases, the question of whether the accused was relevantly “at fault” in causing or precipitating the situation in which he or she was unrepresented, and what is comprehended by the concept of fault in that context, was discussed.

The collected authorities

R v Batiste (1994) 35 NSWLR 437 was a Crown appeal against a successful Dietrich application made by the respondent before the commencement of her trial. The respondent had been represented by counsel and solicitors pursuant to grant of legal aid. She had written a letter to her lawyers ahead of the trial making certain allegations about their conduct. The Court was not informed of the contents of the letter, the respondent having maintained a privilege claim over the letter. That said, on receipt of the letter, the respondent's solicitors advised her that, having taken the view that there had been a complete breakdown of the solicitor/client relationship, they could no longer act for her.
The respondent then wrote to the Legal Aid Commission (the predecessor to Legal Aid NSW) and informed them that she had lost confidence in her solicitors claiming, among other things, that they had failed to adequately carry out her instructions; failed to provide her with sufficient advice as to the conduct of the trial; failed to answer her questions; and not conferred with her sufficiently.
In upholding the appeal the Court held that the trial judge had failed to consider the question of the respondent’s fault which could only be resolved by reference to the circumstances under which the respondent became unrepresented and denied Legal Aid. Smart J made the following observations concerning the issue of fault in the circumstances the respondent faced (at 444-445):

The supply of legal aid to an accused may be attended with many problems. Care must be exercised to conserve legal aid funds so that others do not miss out. Accused persons receiving legal aid are entitled to expect a reasonable measure of preparation and skill. It is not uncommon for accused persons to lose a sense of balance and to want excessive conferences, excessive preparation and every minor discrepancy pursued. There is sometimes an inability to face reality. An accused may wish to have her case conducted in a harmful, dangerous or unduly expensive way.
An accused may want steps taken which are either improper or dubious. An accused may demand an unreasonable measure of cross-examining or advocacy skill. Intemperate, groundless or abusive conduct by an accused towards her legal representatives will normally not be tolerated. Legal representatives cannot be expected to act if they are subject to such attacks. These are just a few examples of situations which may occur.
On the other hand an accused may be correct in her allegations that her legal representatives lack diligence or competence or are not spending sufficient time in preparation or are failing to take steps which are reasonably necessary.
Occasionally, there may be such a clash of personalities between the accused and her solicitor which results in them being unable to work together. Because public funds are involved in legal aid cases, and they are limited, it is important that both the solicitor and the accused make every effort to work together to avoid any waste and that difficulties be resolved.
An accused on legal aid has no right to keep changing her legal representation at the expense of legal aid until she is satisfied. Changes in legal representation where legal aid is involved are likely to be rare especially where substantial preparations have been undertaken and substantial expense has been incurred.
Where an accused person discharges her legal representatives or by her allegations or conduct precipitates them declining to act, as appears to be the position in the present case, a conditional stay will not normally be granted without an adequate investigation into the causes. An accused should realise that it will be necessary for her to lift the veil to the extent necessary to enable the Court to determine the circumstances which led to her legal representatives being discharged or declining to act and to assess whether her conduct or statements were reasonable and such as to warrant a conditional stay. Bald assertions are not acceptable.

In Frawley v R (1993) 69 A Crim R 208 the appellant was convicted of murder after a trial in which he had represented himself. He had a grant of legal aid, but had repeatedly withdrawn his instructions to counsel briefed to appear for him on the basis that he had no confidence that the trial would be run in accordance with his wishes. Another counsel was briefed but, on the day of the trial, that counsel withdrew on the grounds that the appellant kept altering his instructions, had no confidence in his legal representatives and was unwilling to accept his advice as to the conduct of the case. The history of the appellant's dealings with those briefed by Legal Aid to appear for him suggested that the appellant was unlikely ever to be satisfied with his legal representation. The appellant made an application to adjourn the trial to attempt to obtain further representation. The application was refused.
On the appeal, the issue was whether or not the trial judge had given the appellant sufficient assistance (given he was unrepresented) and whether or not the case was too difficult for the appellant to have defended himself. It was said by the appellant that in those circumstances a miscarriage of justice had resulted.
In rejecting that ground of appeal, Gleeson CJ observed (at 211-212) that the trial judge's decision to proceed with the trial in which the appellant was unrepresented was correct having regard to the way the appellant had conducted himself in respect to his various legal representatives. His Honour said:

This is not a case where an indigent person, without any fault on his own part, was denied the opportunity to have legal representation. The appellant was granted legal aid, but there was a long history of disagreement between the appellant and his legal representatives as to the way in which the matter was to be conducted. ... The appellant's conduct and instructions were such as to make his legal representatives feel obliged to withdraw. When the appellant's legal representatives withdrew it was, in all the circumstances, including the history of the matter, a proper exercise of the judge's discretion to continue with the trial.

In his Honour’s view, the question whether an unfair trial resulted was to be assessed in the context of the appellant bearing fault for the fact that he was unrepresented. Gleeson CJ said (at 212):

The fact that the appellant was unrepresented, resulting, as it did, substantially from his own rejection of the legal advice and representation that was provided to him at public expense, does not of itself amount to unfairness: cf Dietrich (at 335-336; 206-207). The Court must consider whether there was a miscarriage of justice, but it does so in a context in which the fact that the appellant was unrepresented was the result of his own conduct.

Having assessed the evidence in the case in detail, Gleeson CJ (with whom the other members of the Court agreed) concluded that the appellant’s trial had not been unfair (at 215):

It is true, as was observed by senior counsel for the appellant, that this was a difficult case for the defence, and the appellant was at a serious disadvantage because he was unrepresented. The Crown case against the appellant was very strong. The issue upon which the defence focused, ie, the ingestion of alcohol and drugs on the evening of the killing, was one that was fraught with risk for the defence. There was an obvious danger that a jury might treat the alcohol and drugs as the explanation of the conduct of the appellant, but not an excuse for it. There were inherent difficulties about some aspects of the appellant's claimed amnesia. For example, when he was interviewed by the police in the early hours of the morning following the killing, he gave rational and coherent answers to all the questions that he was asked, but at his trial he claimed that he could not remember the interview. A pharmacologist who was called to give evidence on the appeal admitted that he found that inexplicable. There was a substantial body of evidence put before the jury which showed that there was a history of violent behaviour on the part of the appellant towards the deceased, especially when he was affected by drink. However, for reasons given above, in the circumstances the disadvantage at which the appellant found himself was of his own making and did not of itself involve unfairness.

In R v Osborne [2002] VSCA 156; 133 A Crim R 519, the appellant had become unrepresented part way through his trial. He had terminated his retainer with his counsel after a dispute over the way in which the appellant wanted aspects of the trial conducted which counsel regarded as being in conflict with his ethical and professional obligations. The appellant then sought an adjournment of the trial which was refused. It was argued on appeal that the failure to grant the adjournment had given rise to a miscarriage of justice. In rejecting that ground of appeal, Chernov JA (with whom the other members of the Court agreed) considered the decision in Dietrich on the question of “fault” (at 528):

Thus, the observations of their Honours [in Dietrich] as to the approach to be adopted in considering whether a trial of an unrepresented accused who seeks legal representation should proceed, must be read in the context of the circumstances applicable to that case and those circumstances were markedly different from those that faced the trial judge here. First, the applicant was not an indigent accused who, because he was unable to secure legal representation, sought a stay of his trial. Nor was the applicant relevantly “without fault” in being unable to obtain legal representation. On the contrary, he had the ability to fund his representation and had done so. Prior to the adjournment application, he had been represented by competent and experienced counsel and solicitor but, consistently with what he told the judge prior to the commencement of the trial, he withdrew his instructions during the course of the trial apparently because he was not satisfied that his counsel conducted the case as he wanted it conducted. In the circumstances, one could not be confident that, had an adjournment been granted and other counsel were briefed, their instructions would not have been similarly withdrawn if they were not prepared to conduct the defence wholly as the applicant might wish having regard to their duty to the court. Moreover, as has already been mentioned, unlike the situation in Dietrich , the application for an adjournment here was made after the critical Crown witnesses had been cross-examined by the applicant's counsel in relation to the central issues in this case, including those that pertained to the counts on which he was ultimately convicted.

In R v Grosser [2002] SASC 193 the applicant made a Dietrich application after he dismissed the lawyers assigned by the Legal Services Commission to represent him. Duggan J described the break down in the relationship between the applicant and his lawyers in this way, at [57]:

The applicant will not accept anyone as a legal adviser who will not conduct his defence in the manner which he requires. On the other hand, the Legal Services Commission and counsel assigned by it have a clear duty to ensure the applicant's legal assistance is restricted to those matters reasonably necessary for the presentation of the defence.

In dismissing the application, Duggan J held that it cannot be said that the applicant was unrepresented “through no fault of his own”:

[59] The question arises, therefore, as to whether a trial in which the applicant was unrepresented would be unfair and, as part of that enquiry, it is necessary to determine whether such lack of representation should be seen as being through no fault on his part (Craig v South Australia (1995) 184 CLR 163).
[60] In determining these issues I have had regard to the guidance given in Craig as to the effect of the reasons in Dietrich:
“The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused's inability to obtain legal representation being ‘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. In that regard, we agree with the view expressed by Olsson J in the Full Court that:

… what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.
“A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused.”

[61] I am also mindful of the fact that, if the legal aid on offer to an accused person is transparently inadequate or subject to unreasonable conditions, the accused may fall into the category of a person to whom appropriate legal representation is unavailable through no fault of his or her own. (Souter (1997) 93 A Crim R 400 at 404; Attorney-General (NSW) v Milat (1995) 37 NSWLR 370).
[62] However, it is far from the case that the legal assistance available through Mr Germein and Mr Klotz is clearly inadequate and it is equally obvious that the conditions attached to the grant of aid are fair and reasonable. Nevertheless, despite signing an undertaking that he will abide by the reasonable advice of his counsel, the applicant has demonstrated a determination not to be represented by anyone who does not accept his view of what is appropriate in the preparation and conduct of his case.
[63] The applicant's assertions that the counsel most recently dismissed lied in court and that counsel and the solicitor acted against the applicant's interests are quite baseless. There is nothing before me to support the applicant's often repeated assertions that other lawyers assigned to represent him from time to time had taken part in a “cover-up” with the DPP and have worked with the NCA and the DPP behind his back.
[64] I have no doubt that the applicant will refuse to accept legal assistance unless those who represent him will conduct the trial in the manner he requires it to be conducted regardless of the cost or relevance. He has rejected offers of skilled legal assistance for the forthcoming trial and has acted unreasonably in so doing. It cannot be said that he is unrepresented through no fault of his own.
[65] The application for a stay of proceedings and an indefinite adjournment of the trial will be dismissed.

The decision to refuse the stay was not disturbed on appeal: R v Grosser.
In R v IAS [2004] SASC 240; 89 SASR 159 the appellant had also been left part way through the trial without legal representation, after terminating his instructions to two sets of solicitors and counsel. The trial judge refused an application to adjourn the proceedings, or declare a mistrial, to allow the appellant to secure the services of a further solicitor and counsel. Besanko J (with whom the other members of the Court agreed), having reviewed the authorities cited above, considered the question of whether the appellant had been at fault at [49]:

Ultimately however, whether the trial Judge erred or not, the critical question is whether the accused has received a fair trial. To determine that question, a number of circumstances are relevant. An important consideration is whether the accused has become unrepresented through his own fault. Fault is not to be narrowly interpreted in the sense of being restricted to wilful or deliberate conduct, but at the same time not every instance of misbehaviour, improvidence or unreasonable conduct will be sufficient to disqualify an accused from successfully arguing that he has not received a fair trial because he was unrepresented. I should add that in my opinion, fault will include conduct by an accused which means that he is responsible for the fact that he does not have legal representation. The answer in any particular case is likely to depend to a large extent on the particular circumstances of the case. The critical question is whether there has been a miscarriage of justice.

The weight to be attributed to the notes of conference between the applicant and various of the legal aid lawyers between 19 March 2019 and 14 June 2019

Mr Ashby gave evidence that the conference notes annexed to his affidavit on 31 July 2019 was prepared from his contemporaneous notes as to which he gave the following evidence in examination in chief (at T121):

Q. In relation to annexure A, the document forming annexure A, headed "Table of Conferences With Client", can you briefly just describe how that - or what that is compiled from?
A. This is compiled from my contemporaneous notes taken during these conferences between 15 March 2019 and 14 June 2019. It was prepared on Wednesday last week and the process was my effectively dictating to Ertunc Ozen SC, together with Siobhain Climo, from my notes.
Q. All right. And do they purport to be verbatim or are they a summary from of your notes?
A. They're a summary of the notes. They're not verbatim.
Q. Do you have the notes with you today if they are required?
A. Yes.

Mr Conolly called for the notes which were produced but not tendered.
Mr Ashby also gave evidence that the type-scripted version of the conferences were typed by Mr Ozen as he read from them, doubtless to reproduce them in a form for inclusion in his affidavit. I propose to proceed on the basis that the notes not only accorded with Mr Ashby’s memory but Mr Ozen’s and Ms Climo’s memory of the conferences they attended.
In a lengthy cross-examination of Mr Ashby, extending over two days, Mr Conolly did not suggest, directly or indirectly, that the conference notes were inaccurate in any respect. He went further and conceded in his oral submissions that Mr Ashby had given truthful and honest evidence, by which Mr Conolly must be taken to have conceded that Mr Ashby gave truthful and honest evidence that the conference notes fairly reflected the course of conferences, including, in particular, the applicant’s instructions (variable as they were from time to time) on the issue of the Schedule of Witnesses.
The conference notes were addressed by the applicant in his affidavit of 2 August 2019. The applicant challenges the accuracy of the notes in a number of respects, the most critical being what occurred in the conference on 21 May 2019. In the face-to-face conference at the prison attended by all three lawyers and convened over the course of one and three-quarter hours on that day, one of the four issues to be discussed and identified at the outset of the conference was the Schedule of Witnesses. The notes record as follows:

Table of Witnesses – [the applicant] has been through - [the applicant] name specific witnesses he wants for xx.
Discussion about one specific witness- [the applicant] says if we can't agree then want to call them all.
We go through the list of remaining witnesses individually- explain our thoughts as to why/why not xx.

In his affidavit of 2 August 2019, the applicant, in dealing specifically with that note, denies telling his lawyers that “if agreement can't be reached on a specific witness he wants all witnesses to be called”. He also says that at no time (that is, as I understand his evidence, neither in that conference or in any other conference) did the solicitors go through the list of remaining witnesses individually and explain their advice in any detail as to why or why not each witness should be cross-examined. He goes on to say that whilst the witness list was referred to from time to time, he could not absorb what his lawyers were saying, in what he described as a “brief way” about the few witnesses “that were mentioned”. In cross-examination, the applicant maintained that position.
In final submissions, when confronted with the likelihood that very significant weight would likely to be given to the unchallenged contemporaneous notes, Mr Conolly submitted that it is “unusual in the extreme” for senior counsel to prepare the conference notes of his instructing solicitor and have the notes he prepared annexed to the instructing solicitor’s affidavit. He submitted that Mr Ozen should have been called to give evidence and further “Mr Ashby’s notes should have been Mr Ashby's notes” and not shared with counsel and that it was “inappropriate” for him to do so (T367). As I made clear in the course of submissions, I reject that submission.
I accept that the risk that the notes might contain privileged material beyond the applicant's limited waiver of privilege for the purposes of these proceedings may explain why Mr Conolly did not seek unsupervised access to the original conference notes produced by Mr Ashby. However, I do not accept Mr Conolly’s submission that that in any way prevented him from challenging the accuracy of the typewritten notes or suggesting to Mr Ashby that significant parts of the notes wrongly attributed to the applicant various statements which the applicant denied making. Neither do I accept his further submission that, where the notes are directly challenged by the applicant, I would prefer his version over the contemporaneous notes of the applicant's solicitor.
Where there is a divergence between the applicant's account of the conferences and that of his lawyers, I propose to treat the conference notes as the most reliable record of what occurred. In taking that approach, I am influenced by what I consider to be a number of untruthful answers the applicant gave in cross-examination, including but not limited to his claim that the conferences were brief and unstructured and that he was never taken through the Schedule of Witnesses (as to which see below).

The applicant’s evidence

In the applicant’s evidence in cross-examination, the criticisms he made of his lawyers in his affidavits were amplified considerably. There was a central theme to which he returned on multiple occasions to the effect that his lawyers spent very little time explaining things to him. He also claimed that the lawyers were always in a hurry to leave which is why they “whittled [the witness list] down to only three or four witnesses instead of 200” (T45) and the conferences were short and rushed (T90). It is clear beyond question this is a misrepresentation of the nature and extent of successive conferences with his lawyers as reflected in the conference notes. Neither Mr Ashby nor Ms Climo were cross-examined to seek to establish the truth of the applicant’s claims.
The applicant was invited by the Crown to confirm that he had had access to all the statements which comprised the Crown Brief, given that had been uploaded to the computer provided to him in prison in the form of what was described in the evidence as “the e-Brief”, after AR Conolly & Company Lawyers withdrew from the proceedings in January 2019. In response, the applicant claimed, repeatedly, that many of the witness statements were “blacked out” and he could not read them. My invitation to the applicant and his lawyers to produce the computer in order to verify that claim was not taken up. I am satisfied by the version of the e-Brief tendered on the application, despite varying quality of some of the statements of witnesses uploaded in electronic form, in part because some were taken in the order of 30 years ago, that none were “blacked out” or unreadable. I simply do not accept the applicant's evidence that he was unable to access the witness statements identified on the Schedule of Witnesses because of a problem with the reproduction of the statements electronically.
In addition, there are repeated references in the conference notes to the applicant having read and considered the witness statements, with no complaint to any of his legal aid lawyers that he could not read any of the statements and no request of them that paper copies be provided. There is also repeated reference in the conference notes to the applicant having been provided with the Schedule of Witnesses.
The following questions reveal what I consider to be a good example of the applicant’s combative approach in the dealing with the questions asked of him by the Crown (T48):

Q. What I suggest to you is once legal aid were engaged, you had the document, which was the table setting out the witnesses remaining to be called. You agree or disagree?
A. Don't know. Don't recall.
Q. That you had the opportunity to use that table to then go to the brief on your computer--
A. If I had it, yes. You're assuming I had it.
Q. --access a statement and read a statement. Correct?
A. Again you're assuming that I had it.

When I sought clarification from the applicant, he gave the following evidence. After accepting that he had seen the Schedule of Witnesses which was produced and shown to him in the witness box (but being unable to say when it was he had first seen it), he gave the following evidence (T50):

Q. I want you to assume it's a document that was handed up to the judge on 18 December last year and provided under a cover of letter to you, as the letter makes clear, in - what's the date of the letter, I'm sorry, Mr Crown? February, isn't it? 6 February. And I want you to also assume that legal aid have raised it with you as a ready way of working out the way to progress the matter at trial.
A. Well, they progressed the matter to about half a dozen names. That was all that was left, that they wanted to put to the Court.
Q. All right. But you knew that that document was a putting together, as it were, of all of the witnesses remaining under various headings, whether the Crown was intending to call them, whether the Crown was proposing their statements be tendered, and then there is a line, a column at the very end of the document, which asks for the defence response. Do you see that?
A. Yes.
Q. And you knew that the attitude of the defence was outstanding. It's not ever been filled in, has it?
A. I obviously didn't fill it in, but whether this is something that the legal aid people should have done or should know about, I don't know. They're the experts. They're supposed to know what they're dealing with.
Q. That's right. They are the experts. And you know how important it is to take the advice of your expert legal team, don't you?
A. Well, I got very little advice from them and they were always in such a huge hurry to move on, and of course as I said, they have more profitable jobs lined up.

He went on to give the following evidence (T54-T55):

Q. Now, is this the situation: in discussing this table with Mr Ashby or Mr Ozen or Ms Climo, they indicated to you or told you which witnesses - or a number of witnesses who they said they would advise the Crown they wanted to cross-examine?
A. No, they put very little effort into discussing witnesses with me, very little.
Q. Well, they went through a document, didn't they, with you--
A. Which one?
Q. --which said that they'd indicated a number of witnesses--
A. They said that?
Q. Yes. Is that true?
A. Well, can I have a look at the document you're talking about? What is it? They did very little in the way of advising me on witnesses. They never went through the list. Too many people on the list. It would have taken too long. They only want - they wanted something that could be done in, you know, half an hour, an hour, that was it.
Q. Isn't this correct: they notified you that they would come to talk to you about the list of witnesses--
A. They were never there long enough to talk to me about the full list of witnesses. They never worked their way through the list.
Q. So they gave you a warning that they would come to talk to you about a list of witnesses to give you an opportunity to read the statements, if you had not read the statements. Is that correct?
A. On one occasion they arrived at about 4 o'clock in the afternoon, right, and we got 300 witnesses and 100,000 pages of evidence to discuss in, what, half an hour? It's a joke. Legal Aid's a joke. These two in particular, or three, were a joke.

The applicant also gave categorical evidence (T67) that he received what he described as “no reasoned explanation” for the individual witnesses on the Schedule of Witnesses it was “just a blanket answer to cover everybody… They never individualised witnesses and went over each witness with me at all. They simply didn't do that.”
Upon being taken by the Crown to paragraph 78 of his affidavit of 2 August 2019, where he said that he had looked through the Schedule of Witnesses and nominated the “couple of people who we thought were important to cross-examine,” the applicant was at pains to emphasise that he wanted Mrs Opas called to give oral evidence because in his view there was “something fishy” about her not being called given that she was as he described it at (T54) “the number one witness … [being] a witness to the actual death of her husband, and what happened, and what happened beforehand and what happened afterwards”. It is clear to me that this aspect of his evidence reflects a continuing and steadfast refusal to accept the advice from his lawyers that there was no justification in calling Mrs Opas and further, that they did not propose to do so simply at his bidding.
When asked in cross-examination (T68) whether he received advice on 7 June that Mr Ozen would not cross-examine witnesses on inducements to give statements if there was no evidentiary basis to cross-examine a witness and that Mr Ozen would not call a witness if the purpose of the cross-examination was simply to embarrass a witness, the applicant said he could not recall being given that advice. I have considerable difficulty accepting he was being truthful on this occasion and on other occasions when he claimed (or feigned) a lack of memory.
In particular, I reject the applicant’s evidence that he had no recall, in the conference of 21 May 2019, of signing the letter of instructions or it being read to him before he signed it. Again, the conference notes record otherwise. However, he did say that he should not have been invited to sign the letter of instruction and it was not to his advantage to do so since it placed him at risk (T108-109).
He gave the following evidence (T109):

Q. The time you signed [the letter of instructions], was it read to you by a lawyer at the conference before you signed it?
A. I don't recall him doing that, no.
Q. You'll see in that document if I take you to number 4, that you've been provided with a table of the remaining Crown witnesses, and, "I also have a copy of the Crown e-brief and have had the opportunity to read the statements of the outstanding witnesses." Do you see that appears in the document?
A. I can see that there, and it was - they are referring to that this occurred on one of their very rushed visits which was swamped, and I was swamped with a lot of you know, discussions about what should be done and what I should do and things like that. It's difficult to keep up with that.
Q. You understood from the document itself that by those signed instructions, that the lawyers would take into account your instructions but had an over-riding duty to make the forensic decisions on your behalf about which Crown witnesses should be called for cross-examination?
A. Okay, which paragraph is that?
Q. Well look at 5 and 6, makes it clear doesn't it that you've been informed and signed the instructions--
A. Yeah, "professional duty to follow my instructions". Very nice.
Q. --that they would take account of your instructions but they had overall duty to make the forensic decisions, particularly as to witnesses required to be called for cross-examination. You understood that from the document you signed?
A. Um, as I said, it was a very rushed time for me. I should have certainly read it more carefully.

He then gave the following further evidence (T99-T103):

Q. I'm really asking you this: did you understand at 31 May at the conference that within a short period of time, 10 days, a response had to be given in accordance with the Judge's order about witnesses for cross-examination?
A. I'm not sure of that at all.
HER HONOUR

Finally, Mr Conolly’s attack on Ms Climo’s judgment, and the unfounded attack on the propriety of Mr Ozen’s conduct, is unsupported by any objective analysis that Mr Ozen’s assessment of the timing of outstanding matters was flawed or that the decision taken by Ms Climo that 16 witnesses would be required for cross examination was misguided or wrong, or that her nomination of the statements which might be tendered subject to objection was misguided or wrong.
I have no doubt, giving full weight to Ms Climo’s evidence, that there is no substance at all in what Mr Conolly, at least impliedly, contended was a demonstrable failure of professional judgment on her part, both in her preparations for completion of the Schedule of Witnesses or the form in which it was ultimately settled. In that regard, I am prepared to infer that Ms Climo’s description of the preparation by her of the Schedule of Witnesses “colour‑coded” for the better understanding of the applicant (T377) was organised in that way referable to each of the seven Events which have for some years been the cornerstone of the Crown case, the same seven Events that Garling J used on 13 December 2018 to group what his Honour then saw as the likely issues to which the statements of lay witnesses were directed, many of which as his Honour identified seemed to be of little or no relevance.
Despite Mr Conolly’s criticisms in his written submissions of Ms Climo (and by implication Mr Ashby and Mr Ozen) as to her competence and conduct of the applicant’s legal representatives, I have no hesitation in accepting that, in preparing for and in the course of attending at successive conferences with the applicant to obtain his instructions as to the form of the Schedule of Witnesses, Ms Climo took steps that were both rational and practical and completely in accord with the skill and professionalism of experienced criminal counsel.
It is not to the point, as Mr Conolly seems to suggest, that he would have taken a different approach, by arranging to confer with 155 Crown witnesses before resolving whether they should be required to attend for cross-examination as he suggested to Ms Climo in cross-examination (T288). Mr Conolly further submitted that the “proper” approach to the preparation of the Schedule of Witnesses was for Ms Climo to start with “the prima facie premise” that each of the 155 witnesses should be called to give oral evidence unless there is, what he described as, “a proper reason” for the witness not to be called (T353). In his submission, the next step was for Ms Climo to determine which parts of a witness statement were admissible and then to meet with the Crown to determine, statement by statement, which parts of the statement might be admitted in evidence by agreement. Mr Conolly submitted that it was “wrong” for Ms Climo to have come to a view as to whether a witness should be called to give evidence unless and until there is an agreement with the Crown as to what portions of each of those statements will be admitted. In advancing that submission he impliedly, if not expressly, rejected the approach that his Honour had commended to the parties as an appropriate approach when the matter was first raised in December 2018, namely to identify who of the remaining lay witnesses might be able to give relevant evidence addressing the issues that had by that time crystallised as the significant issues in the trial, including the evidence that was capable of demonstrating a material link between each of the seven Events and in turn, by the application of tendency and coincidence reasoning, proof of the applicant's guilt.
What is to the point is that despite the challenges of the task of completing the Schedule assigned to Ms Climo by senior counsel, she assiduously committed what must have been many days to reading and cross-referencing the transcript to the Crown Brief of evidence and the subpoenaed material before coming to the considered judgment that many of the witnesses would not be in a position to give relevant evidence bearing upon the real issues in the trial (as they were assessed to be by senior counsel working cooperatively with his junior and solicitor).
Despite Mr Conolly’s repeated oral submission that the task the lawyers assumed consistent with their retainer to act on the applicant’s behalf at his trial and, as a first measure, to complete the Schedule of Witnesses, was an “impossible” task, the irrefutable fact is that it was achieved.
I also reject Mr Conolly’s submission (at T431) that it was “unreasonable” for Mr Ozen to have taken the position he took responsive to the email the applicant sent to the trial judge on 10 June 2019. I am of the categorical view that, at the very latest, on 14 June 2019 when the applicant refused to answer Mr Ozen’s question as to whether he sent the email, and in fact refused to speak to Mr Ozen at all, the lawyer/client relationship was completely untenable.
I also reject Mr Conolly’s further submission that the email the applicant sent to the trial judge should have been treated by Mr Ozen as nothing more than “a huge red light” signalling that their work with the applicant “had to be reviewed, and how they dealt with him had to be radically reviewed” because of the “grave consequences for the trial and the administration of justice” and “the great inefficiencies that would result”. To suggest, as Mr Conolly did, that the lawyers should have tried to "straighten” up” the relationship with the applicant by devoting further time to go through what Mr Conolly described as the “outstanding evidence” and to submit that they were unreasonable not to have done so, is in all the circumstances, preposterous (T433).
Mr Conolly maintained that submission despite being reminded by me of Mr Ashby’s evidence that both he and Mr Ozen had received advice from their respective professional bodies after the conference of 7 June 2019 (and in Mr Ashby’s case, legal advice provided to him by Legal Aid NSW), that they were obliged to withdraw from the proceedings and, on Mr Ozen’s part, for him to return the Brief in compliance with paragraph 101(f) of the Bar Rules. As the Crown quite properly emphasised in his closing submissions Mr Ozen simply had no alternative but to return the Brief. It appears that Mr Conolly has either not read the Bar Rules or, if he has read them, he does not understand them.

The question of confidence

Finally, as I have already noted, in his evidence in the witness box the applicant repeatedly described his lawyers “as a joke”, claiming the conferences were always rushed and short and that he had no time to understand the advice he was being given or to consider it before he was pressed to give instructions with the ultimatum that if he refused, his lawyers would withdraw. That is not a position the applicant resiled from. He was not asked to reflect upon it in re-examination.
Mr Conolly sought to defend the applicant’s description of his lawyers and his treatment of them in that way by suggesting it was defensible and reasonable from the applicant's perspective. That submission was not developed further beyond suggesting that it was entirely inappropriate for the lawyers to include in the signed written instructions they sought and obtained from him on 21 May 2019 the following:

9. I understand that if my lawyers are unable to competently represent me as they do not have sufficient time to prepare my case, they may also have to cease to act in these proceedings.

As I understand Mr Conolly’s submission, for Mr Ashby to avert to the potentiality of lawyers ceasing to act if they it did not have time to prepare the case must have had the effect of undermining the applicant’s confidence in his lawyers. In the absence of any evidence from the applicant that paragraph 9 had that effect, indeed his evidence is to the contrary, the submission carries no force. The applicant addressed paragraph 9 of the written instructions in his affidavit of 2 August 2019 in the following way:

86. In relation to what’s in paragraph 9, Mr Ozen SC had already talked to me about him having to return the Brief if he did not have time to prepare. Mr Ozen SC had told me this. Mr Ozen SC did not threaten to leave the case if I did not sign the document. He indicated that it was a reasonable document for me to sign and that there was no reason for me to worry about it. No one said that there was anything for me to worry about that was in the document which I signed on 21 May 2019.

The question of “unreasonableness” and “fault”

In light of what I regard as the settled state of the law as to the principles that are to be applied in determining whether the relief the applicant seeks should be granted, the question is whether, in all the circumstances, the applicant’s conduct before the termination the lawyer/client relationship with his counsel and solicitor as announced by Mr Ozen on 14 June 2019 was unreasonable - a state of affairs which will almost inevitably lead to the fact that he will be unrepresented at the continuation of his part-heard trial. To express the question in a different way: in all the circumstances, is the predicament in which the applicant now finds himself something for which he is not relevantly at fault?
Given Mr Conolly’s submissions that the termination of the relationship of lawyer/ client was not as a result of unreasonable conduct on the applicant's part, but as a result of "inappropriate", "improper" and unprofessional conduct on the part of the applicant's publicly funded Legal Aid team (the Crown submitting to the contrary), the enquiry into the course of the relationship between the applicant and those legal practitioners I have undertaken at length was unavoidable.
In short, in my assessment of the evidence adduced by the Crown and the evidence of Mr Ashby and Ms Climo in cross-examination (an account corroborated in very significant respects by the conference notes) there is nothing that reflects adversely upon their representation of the applicant (or Mr Ozen’s representation of him as senior counsel), and nothing which reflects adversely upon their joint commitment to represent his best interests as the accused facing extremely serious charges in a part heard trial.
In coming to that concluded view, I have given full weight to Ms Climo’s and Mr Ashby’s evidence as to their dealings with the applicant. I have placed very considerable weight on their evidence not only because they are Officers of the Court but because, despite rigorous and lengthy cross-examination of them by Mr Conolly, their credit was undiminished. They were both impressive witnesses.
As I have earlier indicated, where the evidence of Ms Climo and Mr Ashby, as corroborated by the conference notes, is in conflict with the evidence given by the applicant, I prefer their evidence. I am fortified in taking that approach by what I am satisfied were deliberate attempts by the applicant in his evidence before me to attribute blame to his lawyers where there was no basis to do so. I have also taken into account what I regard as his unsubstantiated allegations in the conference note of 5 June 2019 that his lawyers were “blackmailing” him and his public denouncement of them as bullies and people who had issued threats to him in his email to the trial judge of 10 June 2019.
On other occasions in the course of the applicant’s evidence, the applicant answered questions asked of him which I consider were deliberately designed to obscure what I am satisfied he well knows was the real and operating cause of the withdrawal of his legal team, namely his stubborn refusal to accept their advice concerning the Schedule of Witnesses and his assumption of an attitude of brinkmanship in his dealings with them, at least from 31 May 2019.
Although the relationship between the applicant and his lawyers had been fractious on occasions prior to the last week in May 2019, including occasions where the applicant expressed himself both intemperately and in such a way as to strongly suggest either an outright refusal to accept Ms Climo’s advice or to listen to her advice, on 21 May 2019 he did sign a letter of instructions (doubtless prepared by his lawyers at that time because of the difficulty they had encountered obtaining instructions from him) that made plain the rules of engagement with his lawyers and their respective rights, obligations and responsibilities under an arrangement by which he was bound if the lawyer/client relationship was to be sustainable. I have already set out those instructions in full.
By 27 May 2019, however, the lawyer/client relationship had deteriorated such that by 31 May 2019 (the date of the conference appointed by Ms Climo to seek the applicant's final instructions on the Schedule of Witnesses that had been largely completed by 10 May 2019) the applicant resolved to make what I am satisfied was a wholly unreasonable demand that he be provided with a “written advice” from them as to why some witnesses were, and others not, required for cross-examination, failing which he instructed that all 155 witnesses should be called to give oral evidence and cross-examined. I note that the conference on 31 May 2019 commenced with that demand.
I reject Mr Conolly’s submission that a request for written advice was a reasonable request, and one with which his lawyers ought to have complied.
It is appropriate at this time that I make some observations as to the circumstances in which, on 31 May 2019 and for the first time, the applicant was making a demand of his lawyers for the provision of a written advice (in effect an advice on evidence) pre-conditional to his providing instructions as to the completion of the Schedule of Witnesses.
It appeared to all those present at the conference in the AVL suite on 31 May 2019 (as reflected in the conference notes) that the applicant was reading his demand for written advice from a document, and that it was prepared in legal language. The document was not seen by his lawyers; neither was it produced or tendered in these proceedings. In those circumstances, and despite having the strongest of suspicions that there was such a document and that it was prepared by either Ms Ramsay (very likely with Mr Conolly’s knowledge and approval) and provided to the applicant at one of their legal visits with the applicant at the prison between 27 May 2019 and 31 May 2019, and, further, despite having considerable doubt that the applicant was truthful when he claimed either there was no note or he had no recall of a note, it is not necessary, for the purposes of this application, to make a concluded finding as to that question.
Neither is it necessary to make a finding that either Mr Conolly or Ms Ramsay were in fact involving themselves in the applicant's trial whilst Legal Aid NSW was retained to act, despite it being clear from the conference notes that the applicant told his lawyers that Mr Conolly was doing just that, and despite it being clear from the applicant's evidence that at the time of the grant of legal aid he knew and agreed that "Legal Aid will only be in [the trial] if [Mr Conolly] is out of the case” (paragraph 81 of the applicant's affidavit of 29 July 2019). Neither is it necessary for me to make a finding as to whether, in the exchange of correspondence between Mr Conolly and Mr Ashby on 31 May 2019, there was substance in Mr Ashby’s contention that it was improper for Mr Conolly to seek to continue to involve himself in the applicant’s trial having regard to Rule 33 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
It is sufficient for present purposes that the applicant made what I am satisfied was an unreasonable demand for a written advice on 31 May 2019, and that he persisted with that demand throughout the course of that conference, a position from which he has not resiled. It was of course at the conference on 31 May 2019 that the applicant expressed, in the strongest terms, not only a loss of confidence in senior counsel as reflected in the exchange extracted below, but confirmed that “[Mr Conolly] is still working on the case – seeking further expert evidence”.
Although Mr Ozen continued with the conference on 31 May 2019 (although not making any sensible headway in pursuit of instructions about the Schedule of Witnesses), and although on 5 June 2019 Mr Ashby sought confirmation that the applicant wanted Legal Aid to continue to act, the attitude of brinkmanship on the part of the applicant to which I have earlier referred came into play as the following extracts from the conference notes of 31 May 2019 bear out:

Very apparent to us that [the applicant] still instructing [Mr Conolly] – interfering with the case – cannot continue – [Mr Conolly] engaging in professional misconduct – we still at square one – need to progress
[The applicant] says “I don’t know who you are” – [Mr Ozen] says “Not going to sit here and give you a CV – you have an experienced team – [the applicant] wants to know if we experienced
[The applicant] says “can’t I get a second opinion” – [Mr Ozen] says “sure, tell me what [Mr Conolly] said and I will give you a second opinion” – not prepared to discuss what he had been advised by [Mr Conolly] – not appropriate that this continue
Advised cannot continue with two sets of lawyers acting – getting in the way of progressing the case – apparent to us that things [the applicant] saying arise out of conferences with [Mr Conolly] – [the applicant] reading off written notes that are clearly the result of advice from a lawyer
Not possible to remain/continue to act where he continuing to seek advice and review our advice with [Mr Conolly] or any other lawyer – if we are to enjoy his continued instructions we must be the sole legal reps – if any other lawyer approaches wanting to speak about the case [he] must decline – we must be the sole legal reps
We are aware that [Mr Conolly] continuing to conference and advise client/[the applicant’s daughter] – this needs to stop.
Client confirms [Mr Conolly] still working on case – seeking further expert evidence …

I accept, without reservation, Mr Ashby’s evidence that it was the applicant's conduct in the conference of 31 May 2019 that caused him to take the unprecedented step of convening a conference on 5 June 2019, without counsel, in order to determine whether the position the applicant had taken in conference with counsel the previous week was to continue and, depending upon the position of the applicant, whether Mr Ashby needed to take advice (and encourage counsel to take advice) as to whether, consistently with their professional and ethical obligations, they could continue to act for the applicant at his trial. It was in that conference that the following was said:

[Mr Ashby] seeking clarification – do you still want us to act in this case? – [the applicant] says he has not been able to get the advice regarding that yet – until he can make a more informed decision we “may as well stay in the case” – [the applicant] not sure what’s going on – end result will be same whoever appears – [Mr Ashby] says [Mr Conolly] told us he will no longer act in this case – [the applicant] says he is happy for us to remain in the case “at this stage” – [Mr Ashby] seeks clarification – [the applicant] says “can’t predict future” – what do you mean “you have not had legal advice in the matter?” – [the applicant says there are “certain problems with us wanting to reduce the list down to nothing. If I represent myself I can have the 200 witnesses” – [Mr Ashby] suggests further conference with all in two days’ time – [the applicant] refers to remaining witnesses as “junk”
[Mr Ashby] advises that if we are to represent him that we will make forensic decisions about witnesses – [the applicant] says again he wants us “at this stage”
We need to advise Crown who we need for xx and narrow down remaining witnesses

[The applicant] says “this is blackmail” being forced to narrow witness list down to nothing – not content to narrow list at all – requires us to “investigate” each one of the remaining witnesses – feels he is being “railroaded” – being forced to “agree to our conditions regardless” – not going to make a scrap of difference – not going to sign “a blank cheque”
[Mr Ashby] advises we know what the evidence in statements are – [the applicant] wants each witness xx on particular matters – skilled cross-examiner could undermine each of them – [the applicant] feels he would be better than a lawyer who doesn’t want to make the effort on his behalf ([Mr Ozen])
[The applicant] feels that he is at a disadvantage since he cannot talk to another lawyer

Determination of the application

I do not regard it as to the point that the applicant did not at any time formally withdraw his instructions or terminate the lawyer/client relationship with the Legal Aid team. I am satisfied that his constructive failure in the conference of 31 May 2019 and then on 7 June 2019 to accept, in an appropriate, measured and unqualified way, the advice of his lawyers, as distinct from what I consider to be a contingent acceptance of advice (namely under protest) and a willingness to continue to retain Legal Aid NSW, but only “at this stage”, was an attitude taken by him to assert his control over his lawyers and one of the precipitating causes of them withdrawing. The following extracts of the conference notes of 7 June 2019 leave me in no doubt that the lawyer/client relationship was at an end:

LW: message from [that applicant's daughter] mentioned 'compromise'. I am concerned about specific named witnesses. HH does not want them in the witness box.
LW wants them to be called
[E]O: reached impasse. - there is no material to cross examine witness on. If there is any evidentiary basis to go after witness then we will.
Contrast with other witnesses we have discussed and will xx - we now have a mass of material.
LW: Judge wants to hide witnesses
[E]O: If we want witness there then the judge can't stop us. It is Not HH's call re witnesses. If we represent him it is our call, if he sacks us it is his (LW) call. Bar rules tell me I must exercise forensic judgment independently, not permitted to simply carry out his instructions. I will not have fulfilled my duty by declining to exercise forensic judgement to outline issues. I am not permitted to call witnesses to cause embarrassment. Any decision to challenge witnesses is based on the material we have.
Discussion about needing proper basis to xx witnesses – will require witness for xx unless D discloses proper basis for seeking that xx
LW: How often does the person who finds the body not called?
[E]O: A lot of the time (gives an example re different case). The reasons you give us for wanting xx is entirely improper. The situation is impossible to resolve. We are not moving from our respective positions. If we continue to act we will not require named specific witnesses to come, you can either accept that or sack us
LW: What if I agree under protest? Under threat of legal representation being withdrawn
SC: Are you going to vocalise in court?
[E]O: Sounds like this is an untenable relationship/. You said you would go on alone
LW: faced with an untenable relationship and feel like being coerced
[E]O: you are not being coerced
…
LW: I am prepared to compromise under protest
[E]O: You have chosen your words carefully
LW: then I would have no defence team at all
[E]O: what else have you been advised?
LW: [The applicant's daughter] has advised me to compromise. Judge has choice between …
[E]O: What compromise do you propose?
LW: You continue representing me despite me disagreeing with your advice. See what happens. The idea of you having complete control despite my wishes is not on. I think I should at least have some say in the conduct
[E]O: In taking your instructions into account, I exercise forensic judgment
LW: you are too close to the judge, your advice coincides with his
[E]O: What do you mean I am too close to the judge? That I am doing the court's bidding?
LW: You know what he wants, and you act accordingly. We can make the charade last two weeks or six months
[E]O: Talk about the decisions re the remaining witnesses, outlined in the table that you have been given. There are about half a dozen
LW: Lot of junk witnesses designed to drain my resources, not got any resources to waste
[E]O: what is the point of calling 180 witnesses?
LW: prosecution has to justify each individual witness
[E]O: what do we ask them?
Discussion about why LW wants all witnesses called again advised this not a proper basis for xx and TO will not do it.
[E]O: Do I understand that your willingness to compromise goes that far?
LW: I wouldn't be so pig headed if the judge hadn't tried to excuse specific. If you have read the transcript you can see the cherry picking. I am still just as angry
[E]O: your position is to go with my advice but you still want the other witnesses?
LW: your advice is not to call some. My instructions are to call the lot
[E]O: so what happens now?
…
[E]O: do you want a break? Are you terminating your instructions?
LW: No. I am exhausted. You continue with what you want. You have the legal training and I have nothing at all. Go ahead with what you want to do
[E]O: I can't just go on. It is pretty clear you have no confidence and that you think I am in cahoots with the judge and will terminate your instructions to us
LW: on the basis of your advice I have to agree with you acting
SC: We have a deadline to tell the other side by Tuesday what witnesses we require.
LW: yes
…
LW: Alan wants the list of remaining witnesses for xx
[E]O: If Alan wants the list he can ask for it
LW: [The applicant's daughter] has always been the go-between
[E]O: At some point your instructions will be withdrawn but not today? We will have a conversation amongst ourselves
LW: I am not taking advice from Alan - he doesn't continue. He doesn't advise me. He has withdrawn after receiving your warning, he was impressed with the warning
[E]O: nothing further to say about that. Can you sit in court without interjecting?
LW: I have not lost anything by doing it so far
…

Having regard to all of the evidence on the application, including the applicant's evidence under cross-examination, I am satisfied that it was that same attitude of brinkmanship which motivated the applicant to send the email to the presiding judge in which he openly accused his lawyers of bullying and threatening behaviour (neither allegation being in any way substantiated by the evidence and in fact wholly contradicted by the conference notes). That attitude is also reflected in his refusal to discuss the email with his lawyers when they raised it with him in conference on 14 June 2019.
It is not to the point that the applicant may have been ignorant of the fallout from his decision to send the email and his stubborn refusal to accept the advice of his lawyers. Neither is it to the point that he might later have regretted his behaviour. What is to the point is that the lawyer/client relationship had by 14 June 2019, at the latest, become wholly untenable by reason of the attitude taken by the applicant to the team of lawyers who had by that date, and over the 12 weeks preceding that date, diligently worked in his interests (and at public expense) consistent with their professional and ethical obligations and with what I regard as considerable forbearance on their part given what had become the increasingly gratuitously rude and unreasonable conduct of the applicant.
I am of the concluded view that the applicant is the author of his own misfortune and, for that reason, the relief he seeks is refused.

Orders

The Court orders:

The Notice of Motion filed on 12 July 2019 is dismissed.

The trial of the accused, Leonard Warwick, is listed to resume before Garling J on 20 August 2019.

**********

Amendments

29 September 2020 - Publication restriction removed – judgment published (applicant's daughter's name anonymised).

Decision last updated: 29 September 2020

Medium Neutral Citation:	R v Warwick (No 69) [2019] NSWSC 1059
Hearing dates:	5-14 August 2019
Date of orders:	16 August 2019
Decision date:	16 August 2019
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	1. The Notice of Motion filed on 12 July 2019 is dismissed. 2. The trial of the accused, Leonard Warwick, is listed to resume before Garling J on 20 August 2019.
Catchwords:	CRIMINAL LAW – application for stay of proceedings due to lack of legal representation – where trial commenced in 2017 – where a grant of legal aid has been revoked and solicitor and counsel withdrew – whether the applicant has acted reasonably and is without fault in being unrepresented at the continuation of his trial - whether lawyers were at fault – where trial has previously been adjourned –dispute between applicant and lawyers as to the remaining witnesses to be called - whether it was unreasonable that the applicant sought written advice in relation to that question
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015
Cases Cited:	Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Frawley v R (1993) 69 A Crim R 208 R v Batiste (1994) 35 NSWLR 437 R v Grosser [2003] SASC 193 R v IAS [2004] SASC 240; 89 SASR 15 R v Osborne [2002] VSCA 156; 133 A Crim R 519 R v Small (1994) 33 NSWLR 575 R v Warwick (No 2) [2017] NSWSC 1225 R v Warwick (No.63) [2019] NSWSC 41 R v Warwick (No 64) [2019] NSWSC 163 R v Warwick (No 66) [2019] NSWSC 317
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Applicant)
Representation:	Counsel: K McKay / G Christofi (Crown) A R Conolly (Applicant) Solicitors: Director of Public Prosecutions (Crown) AR Conolly & Company Lawyers (Applicant)
File Number(s):	2015/222068
Publication restriction:	Suppression order in relation to the names of the applicant’s wife and daughter: see R v Warwick (No 7) [2018] NSWSC 236.