JOHNSON J: On 29 April 2015, the Accused, Thompson Kimura and William Rodney Swan, were committed for trial from the Central Local Court, with respect to serious charges.
They first came before the Supreme Court in the Arraignments List on 5 June 2015. The charges alleged against each of them were murder, alternatively specially aggravated break, enter and steal, and alternatively aggravated robbery causing grievous bodily harm.
The Crown alleges that in the early hours of 15 April 2013, each Accused entered the dwelling house of Alexander Kormilets at Redfern and committed criminal acts, in the course of which grievous bodily harm was inflicted upon Mr Kormilets. Mr Kormilets was then 78 years old. He was taken to hospital suffering from a number of serious injuries and was admitted in a critical condition. Some months later, on 10 December 2013, Mr Kormilets died.
It is the Crown case that each Accused together broke into and entered Mr Kormilets' flat in the early hours of 15 April 2013, where they robbed and assaulted him and stole property. Serious injuries were inflicted upon Mr Kormilets.
The Crown alleges that the acts of each Accused, in committing the assault on the deceased, constituted an operating and substantial cause of the death of Mr Kormilets.
The matters came before this Court in the Arraignments List on a number of occasions - 5 June 2015, 7 August 2015, 11 September 2015 and 2 October 2015. The legal representatives for the Accused and the Crown each referred, at those listings, to various expert reports on causation which were being obtained and exchanged between the parties. The Court was asked by all parties to adjourn the proceedings on the dates up to 2 October 2015 to permit the Crown to consider its position in light of the expert reports.
On 2 October 2015, I formed the view that the time had come for each Accused to be arraigned and the trial fixed. I proceeded to take that course. Each Accused pleaded not guilty to each count. After ascertaining the availability of counsel, I fixed the matter for trial commencing next Monday, 18 April 2016, with a four-week estimate.
R v Kimura; R v Swan [2016] NSWSC 1978 | Case summary | Zoe
I stood the matter over to 4 December 2015 to allow counsel to give me a concluded indication as to whether there was to be any pretrial application. On 4 December 2015, the Court was informed that there may be an application for trial by Judge alone. I gave directions, if that course was to be taken, and stood the matter over to 12 February 2016.
On 12 February 2016, Mr Bruce SC (for the Accused Kimura) and Mr Buchen (for the Accused Swan) appeared, as they had on prior occasions. The Court was informed that there was to be no application for Judge-alone trial and there were no pretrial issues. There the matters rested with the confirmation of the trial date fixed for next Monday.
On 8 April 2016, the matters came before Acting Justice R S Hulme, the trial Judge. His Honour was informed by Mr Buchen that his instructions had been withdrawn the previous day, as had those of his instructing solicitor, Mr Blair. It was foreshadowed that there would be an application to vacate the trial date.
Following directions, a Notice of Motion by the Accused Swan seeking vacation of the trial date, was filed yesterday and made returnable today.
Mr Robinson, solicitor, appears for the Accused Swan on the application. By affidavit affirmed 13 April 2016, Mr Robinson indicates the material which needs to be considered and the difficulty he has experienced in obtaining counsel for a trial date of 18 April 2016.
I note that Mr Blair, the previous solicitor, is the principal of the firm Blair Criminal Lawyers, in which firm Mr Robinson works. I note that Mr Robinson has, in fact, appeared for the Accused Swan on two occasions in the Arraignments List (7 August 2015 and 4 December 2015).
The Court was informed that the instructions of Mr Buchen and Mr Blair had been withdrawn for ethical reasons. Whatever those ethical reasons may be, it seems that they constitute no impediment to Mr Blair's office continuing to act as solicitor for the Accused Swan. Mr Robinson appears today and, I infer, will continue to act. He is in a position to discuss the matter with Mr Blair, even if Mr Blair is not directly involved in the matter.
Mr Robinson's present stated position is that there is simply no barrister available for a trial commencing next week.
I have raised a question as to whether there is, in fact, a need for separate representation of the two Accused. The causation issue seems to be common to both of them and capable of being ventilated by one barrister. There could not be any realistic conflict between the two Accused on that issue.
Beyond that, the Crown says that they seek to rely on CCTV evidence, which is said to reveal both Accused in the building at the relevant time, together with DNA evidence, in which it is said the blood of the deceased was detected on the clothing of each of the Accused. Whether there is any conflict of interest as between the Accused on those aspects, I cannot comment further.
I take it that Legal Aid NSW, in determining to continue a grant of legal aid for separate representation for the Accused Swan, has considered these matters for the purpose of determining that separate counsel are needed, with the consequential expenditure of public money.
It cannot be the case, I would think, that simply because persons are charged with murder, that each person automatically has to be separately represented.
In any event, one response to the present circumstances may be a reassessment as to whether the same counsel and solicitor can act for each Accused.
It has been indicated that there is a relatively complex body of evidence, in particular, on the causation issue, which fresh counsel, once retained, would have to absorb. That may be so at first blush, but I bear in mind that it is an issue as to which Mr Bruce SC is ready to run a trial.
If new counsel came into the matter for the Accused Swan, I would expect that appropriate consultation would be undertaken between defence counsel so as to permit counsel to discharge their obligations not just to their clients, but to the Court.
If there be factual dispute about what is said to have happened in or around the property of Mr Kormilets on 15 April 2013, then that matter (I would have thought) would be the subject of some fairly speedy instructions.
The Crown case on that aspect is said to be a combination of CCTV and forensic evidence. This is not a case where there are large amounts of telephone intercept or listening device material, nor other evidence of that sort.
The Court of Criminal Appeal has observed that there is a public interest in a criminal trial, once fixed for hearing, proceeding: Slotboom v R [2013] NSWCCA 18 at [36]; R v Hunter [2013] NSWSC 1713 at [51]-[52].
It is the case that an accused person should have a reasonable chance to prepare and present his case. An assessment of what is required will depend upon the particular case.
In this case, I am well satisfied that there is a capacity for counsel to come into this matter for the Accused Swan and to be ready for a trial, which would proceed in the near future.
The case management provisions in the Criminal Procedure Act 1986, and the functioning of this Court with respect to serious criminal trials, are such that a very substantial reason is required to completely vacate a trial fixture so that it is stood over for what would be a period of months.
I decline to make the order sought in the Notice of Motion of the Accused Swan that the matter be placed in the Arraignments List for the purpose of setting a new trial date.
I should note that, at a certain point in today's hearing, there was an oral application by Mr Bruce SC that the counts against his client be severed so that his trial could proceed now. In my view, that is not an appropriate course to take. The Crown case is, effectively, the same against each Accused - the CCTV footage which is said to reveal each Accused at the premises, DNA evidence which is said to be detected on the clothing of each Accused and the causation issue.
To sever these counts so that the Accused Kimura went to trial separately would, in my view, merely duplicate the trials and would not be in the interests of justice.
The course which I am prepared to take is to vacate the trial fixture presently scheduled for 18 April 2016, but to fix the matter for trial commencing on 2 May 2016 with an estimate of four weeks.
The Judge who will preside at that trial will be nominated shortly, and the parties can expect that the Associate to that Judge will be in touch for the purpose of a procedural listing.
The Accused Swan should not approach the matter on the basis that the effective repetition at a later time of what has been put today will see that trial date being vacated. It would require very exceptional circumstances, in my view, to vacate this trial, against the background of these matters.
There are many barristers in Sydney who should be in a position to represent the Accused Swan at his trial. These include the Public Defenders and counsel on the Specialist Barristers Panel (Complex Criminal Law) of Legal Aid NSW. The function and duty of the Public Defenders (s.10 Public Defenders Act 1995) and counsel on that Panel (ss.50-52 Legal Aid Commission Act 1979) operate in such a way that they should make themselves available, when circumstances such as these arise, so that the system of criminal justice can operate.
The orders that I make are that:
1. The trial fixed for 18 April 2016 is vacated.
2. I fix the trial for each Accused at the Supreme Court at Sydney commencing on 2 May 2016.
The parties should anticipate contact from the trial Judge for the purpose of listing the matter for a procedural mention on a date between now and 2 May 2016.
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Decision last updated: 20 June 2019