R v Lacey and Lacey [2009] QDC 303

[3] The trial was listed to commence on 24 August 2009 for an estimated duration of three to four weeks.

[4] On the morning of Friday, 21 August 2009 my associate was contacted by the solicitors for the defendants foreshadowing an application for an adjournment of the trial to be made the following Monday morning.

[5] In view of the potential inconvenience to jurors, witnesses and others, my associate contacted the solicitors for the defendants requesting that the matter be listed for mention later that day.

[6] The matter was mentioned at 2.30 pm on 21 August 2009. Mr P J Callaghan SC appeared for both defendants. One issue raised by Mr Callaghan SC in support of the adjournment application was the fact that the judgment of the Court of Appeal arising from the trial of the defendants in the Supreme Court was pending and it was possible that it would be delivered during the course of this trial with resultant media publicity. That issue had earlier been raised by me[1]. It was not suggested at that time by any party that this should result in an adjournment of the trial. The other issue raised by Mr Callaghan SC which he described as "more substantive"[2] related to additional material provided by the Crown, the effect of which significantly changed the complexion of the trial. Mr Callaghan SC candidly stated that the defence had "underestimated seriously the task involved"[3] in dealing with the additional evidence. He said there was "an element of ... bravado"[4] in the assumption that the defence would be ready to proceed to trial on 24 August 2009.

[7] There was a body of additional evidence provided to the defence, although as Mr Byrne for the Crown pointed out, a number of the witnesses were being called at the request of the defence.[5]

[8] A considerable amount of time was devoted to Basha hearings in respect of these additional witnesses on 16 and 17 July 2009 and 13 and 14 August 2009. The court was assured that the trial was able to proceed as listed.[6] Notwithstanding the issues that had arisen, the court was told that an adjournment application was not being made.[7] In order to overcome certain logistical difficulties encountered by the solicitors for the defendants there was a suggestion of commencing the trial a day or two after the scheduled starting date.[8]

[9] As a considerable amount of court time had been allocated to this case, it was desirable that the trial proceed if possible. Based on the information placed before the court on the afternoon of 21 August 2009 it appeared that although the defence was not ready to commence the trial the following Monday there was a possibility that the trial might be able to commence on 31 August 2009. Another option appeared to be delaying the start of the trial by two weeks so that it commenced on 7 September 2009, but that would have caused difficulties for Mr Callaghan SC. I therefore listed the matter for mention on 25 August 2009 with a view to considering whether the trial would commence on 31 August 2009.

[10] The matter was mentioned on 25 August 2009. The focus of the adjournment application on that date related to the evidence of Dr Anne-Louise Swain, clinical forensic medical officer. Although Dr Swain had not examined the complainant she said in her statement dated 25 June 2009 that a possible explanation for injuries to his hand was a penetrating gun shot wound from a .25 calibre weapon. Dr Swain was cross-examined at the Basha inquiry on 14 August 2009. Dr Swain provided a statement in substitution for Dr Culliford who was apparently unavailable.

[11] It emerged at this mention that the defence had engaged an expert witness, Dr Zillman, who expressed an opinion on aspects of Dr Swain's evidence. The report of the defence expert would not be available in sufficient time to enable the trial to proceed the following week.[9]

[12] Mr Byrne for the Crown did not oppose the adjournment of the trial in the circumstances.

[13] The trial was adjourned and the matter was listed for mention on 27 August 2009. The trial has now been re-listed to commence on 23 February 2010.

[14] Mr Callaghan SC, for D M Lacey, submitted that "The developments which have led to the discontinuation of the trial in truth have their genesis on 14 August 2009. It was only then that the evidence from Dr Swain emerged in the form in which it would be given at trial".[10]

[15] Mr Macgroarty for the defendant, J M Lacey, pointed out that the evidence of Dr Swain differed in a material respect to that which was to be given by Dr Culliford. The defence engaged Dr Michael Zillman who indicated in a telephone conference on 24 August 2009 that he had formed a different opinion. Mr Macgroarty submitted that this led to the court ordering that "the criminal proceedings be discontinued and that a new trial be set down".[11]

[16] Section 22 Appeal Costs Fund Act 1973 provides:**

"22 Abortive proceedings and new trials after proceedings discontinued

(c) the hearing of any civil or criminal proceeding is discontinued and a new trial ordered by the presiding judge, magistrate or justice for a reason not attributable in any way to the act, neglect or default, in the case of civil proceedings, of any of the parties thereto or their legal representatives, or, in the case of criminal proceedings, of the accused or the accused's legal representatives, and the presiding judge, magistrate or justice grants a certificate (which certificate the presiding judge, magistrate or justice is hereby authorised to grant) -

(ii) in the case of criminal proceedings - to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of the accused or the accused's legal representatives;

any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, who pays or is ordered to pay additional costs or on whose behalf additional costs are paid or ordered to be paid by reason of the new trial shall be entitled to be paid from the fund such costs as the board considers have been reasonably incurred by the person or on the person's behalf in the proceedings before they were rendered abortive or the conviction was quashed or the hearing of the proceedings was discontinued, as the case may be."

[17] The written submissions of Mr Callaghan SC and Mr Macgroarty refer to the "discontinuation" and "discontinuance" of the trial. However, in my view in the circumstances of this case, the trial that has not commenced, cannot be said to have been discontinued. The court has the power to adjourn the trial.[12] Section 592(3) provides:

adjourn the trial includes postpone the trial in a case where the accused person has not been called upon to plead to the indictment."

**[18] Where a trial is adjourned, s 593(1) provides that the court may direct the trial to be heard at a later sittings.

[19] The defendants have not been arraigned.[13] Section 597C(3) provides that the trial is deemed to begin when the accused person is called upon to plead to the indictment.[14]

[20] The requirements for the grant of an indemnity certificate in s 22(1)(c) Appeal Costs Fund Act 1973 are:

• The hearing of any criminal proceeding is discontinued; and

• for a reason not attributable in any way to the act, neglect, or default of the accused or his legal representatives.

[21] In my view the provision does not apply to the adjournment of a trial, which is what occurred in the present case. I do not accept Mr Callaghan's submission that the interpretation contended for on behalf of the defendants is supported by considering the position if the adjournment application had been made on the morning of the trial itself. Mr Callaghan submitted that if that had been the case, the provision "would clearly have been operative". However, if the defence chose to make the application for adjournment on the morning of trial, the trial itself would not have commenced; the trial would simply have been adjourned. And bearing in mind that the statement of Dr Swain dated 25 June 2009 was in the possession of the solicitors for the defendants shortly thereafter, there would be legitimate concerns as to why the adjournment application was made so late. In any event, it is not entirely clear why the adjournment application was not foreshadowed until the morning of the Friday preceding the scheduled starting date for trial, particularly in view of the earlier statements to the court that the trial was able to proceed.

[22] When the solicitors for the defendants initially raised the prospect of an adjournment application on the morning of 21 August 2009, a suggestion was made that the defendants be arraigned before the trial was formally adjourned, presumably so that the deemed commencement provision in s597C(3) Criminal Code would be engaged. In my view, even if the defendants had been arraigned, that would not necessarily mean that the trial was "discontinued and a new trial ordered"[15] because the trial may be adjourned whether or not the accused person has been called upon to plead to the indictment.[16] The mere arraignment of the defendants would not mean that the trial had commenced in a practical sense. Therefore it could not be said that the trial had been discontinued and a new trial ordered.

[23] The applications by the defendants for indemnity certificates pursuant to s 22(1)(c) Appeal Costs Fund Act 1973 are dismissed.**

[1] Transcript 13 August 2009 p 6 Line 25.

[2] Transcript 21 August 2009 p 5 Line 5.

[3] Transcript 21 August 2009 p 9 Line 5.

[4] Transcript 21 August 2009 p 8 Line 19.

[5] Transcript 21 August 2009 p 13 Line 35.

[6] Transcript 13 August 2009 p 6 Line 20.

[7] Transcript 14 August 2009 p 5 Line 5.

[8] Transcript 14 August 2009 p 8 Line 30, p 45 Line 5, p 65 Line 35.

[10] Written submissions of P J Callaghan SC, Counsel for D M Lacey at p 1

[11] Written submissions of N J Macgroarty, Counsel for J M Lacey dated 26 August 2009 at p 2.

[14] R v WAH [2009] QCA 263 at [22]

[15] S 22(1)(c) Appeal Costs Fund Act 1973.