Legal Research
Cases
R v Warwick (No 69)

R v Warwick (No 69)

Case [2019] NSWSC 1059 16 August 2019

No judgment structure available for this case.

Type to search within this case.

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of proceedings due to lack of legal representation – where trial commenced in 2017 – where a grant of legal aid has been revoked and solicitor and counsel withdrew – whether the applicant has acted reasonably and is without fault in being unrepresented at the continuation of his trial -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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Warwick (No 69)

Details

AGLC: R v Warwick (No 69) [2019] NSWSC 1059
Case: [2019] NSWSC 1059
Decision Date: 16 August 2019

CaseChat Overview and Summary

In the case of R v Warwick (No 69), the applicant Warwick was facing trial for criminal charges which commenced in 2017. A significant issue arose when his legal aid was revoked and both his solicitor and counsel withdrew from the case. Consequently, Warwick found himself unrepresented at the continuation of his trial. He applied for a stay of proceedings due to his lack of legal representation. The central legal question before the court was whether Warwick had acted reasonably and without fault in remaining unrepresented and whether his former lawyers were at fault in withdrawing from the case.

The court examined the circumstances leading to the withdrawal of Warwick’s legal representation. It was noted that there had been previous disputes between Warwick and his lawyers regarding the remaining witnesses to be called. The court assessed whether it was unreasonable for Warwick to seek written advice on this matter, which contributed to the lawyers' decision to withdraw. The applicant argued that he had acted reasonably in seeking clarity and was not at fault for the breakdown in his relationship with his legal team. The court considered the legal aid revocation and the procedural history of the case, including prior adjournments, in determining whether the applicant had acted reasonably and if the lawyers were at fault for the situation.

The court concluded that Warwick had not acted unreasonably in seeking written advice from his lawyers regarding the remaining witnesses to be called. It found that the breakdown in the relationship between Warwick and his legal team was not solely due to his actions. Consequently, the court determined that Warwick was without fault in being unrepresented at the trial. The court also held that the lawyers were at fault for withdrawing from the case without sufficient justification. Based on these findings, the court granted Warwick’s application for a stay of proceedings.

The final order of the court was to stay the proceedings until such time as Warwick obtained legal representation. This decision underscored the importance of ensuring that a defendant is not prejudiced by the actions of their legal representatives and highlighted the necessity for a fair trial.

Orders