The accused has applied to have his trial, which is listed to commence on Monday 3 February 2019, vacated. He is charged that on 30 March 2016 at Kingswood in the State of New South Wales he did murder Michael Davey. The trial date was fixed on 12 July 2019. The ground upon which the adjournment is sought is that the accused is presently unrepresented, having withdrawn instructions from his solicitors and senior counsel on 21 January 2020. The accused has had a grant of aid from Legal Aid New South Wales ("Legal Aid") since June 2019. He originally retained Zahr Partners, solicitors, and they briefed Mr R Driels of counsel for this trial. On 16 September 2019 the accused changed solicitors to Archbold & Co. They briefed Mr John Stratton SC at about that time and he held the brief until the withdrawal of his instructions two weeks before the appointed trial date.
When the application to vacate the trial date was first brought before the Court on 24 January 2020 and again on 28 January 2020, Mr Stratton and his solicitor attended but without instructions. On 28 and 31 January 2020 Mr Peter Lange of counsel, instructed by Mr Chahine, appeared for the accused with instructions limited to seeking vacation of the trial date or, at least, deferral of its commencement.
[2]
Outline of the Crown case
The Crown's estimate of the length of the trial is six weeks. It is a circumstantial case. The Crown alleges that shortly before midnight on 29 March 2016 the accused travelled by motor vehicle in company with Abuzar Sultani to a location close to the deceased's residence at Kingswood on the western fringe of the Sydney metropolitan area. It is alleged that the accused and Sultani were both armed, in each case with a handgun. It is alleged that text messages concerning a proposed purchase of illegal drugs from the deceased were used to lure him from his home onto the street. There, at about midnight on 29 March 2016. The Crown alleges that both the accused and Sultani fired multiple rounds at the deceased. He died of gunshot wounds at the scene shortly after midnight.
The Crown will adduce extensive circumstantial evidence directed to proving that Sultani was one of the assailants. A joint criminal enterprise is alleged. The Crown will endeavour to prove that the accused was a close associate of Sultani before and after the shooting. They shared accommodation at Unit 2803, No 1 Australia Avenue, Olympic Park. The Crown will adduce surveillance evidence to show that Sultani and the accused were in each other's company late on the evening of 29 March 2016 before the shooting and again afterwards in the early hours of 30 March 2016. Evidence of the movements of a number of motor vehicles associated with Sultani during the late evening of 29 March 2016 will be relied upon to support an inference that an orchestrated plan was carried out for the transport of Sultani and the accused to the murder scene and for their removal from the scene.
Two spent .25in casings found at the scene of the shooting were discharged by the same .25 firearm. Six Luger 9mm spent casings found at the scene of the shooting were likewise discharged by the same 9mm firearm.
The Crown will call a former associate of Sultani and of the accused to say that during February 2016 he accompanied them to a rural location at Mangrove Mountain where they test fired some weapons, including two handguns. In January 2017 police found at that location seven spent .25in casings. These had all been discharged by the same .25 firearm as that which had discharged the two casings found at the scene of the shooting. At the same time sixteen 9mm spent casings were found at the Mangrove Mountain location and these had all been discharged by the same firearm as had discharged the six 9mm casings found at the crime scene.
The Crown will adduce evidence that on 1 September 2016 a large cache of weapons and ammunition was located in a residential unit in Ada Street, Concord upon execution of a search warrant. Of the approximately one dozen weapons found, including two long barrel weapons and 10 handguns, only two were in a disassembled and deliberately damaged state. These two weapons correspond with the two handguns that the former associate describes as having been test fired by Sultani and the accused at Mangrove Mountain in February 2016.
A further component of the Crown case consists of admissions allegedly made by the accused, some that were recorded from listening devices installed under warrant in Unit 2803 at Olympic Park and some that were made to informants whom the Crown proposes to call.
[3]
Procedural history of the prosecution in this Court
The history of the prosecution of the accused in this Court for the murder of Michael Davey is intertwined with the history of two other charges on which he is before this Court. As his trial for the Davey murder is imminent I will refer to the other charges without detail. They are listed below in the order in which they were laid, which is the reverse of the order in which the offences are alleged to have been committed. The essential dates, sufficient for present purposes, are as follows:
Charge (1): the murder of Pasquale Barbaro on 14 November 2016 at Eastwood. The accused was arrested on this charge on 29 November 2016 and he has been remanded in custody since.
Charge (2): the murder of Mehmet Yilmaz on 6 September 2016 at St Mary's. The accused was charged with this murder on 27 July 2018. An ex officio indictment was filed in this Court in September 2018.
Charge (3): the murder of Michael Davey on 30 March 2016. The accused was charged during 2018 and an ex officio indictment was filed in this Court in September of that year.
After committal to this Court on charge (1) the accused was first arraigned on 2 March 2018 and pleaded not guilty. His trial on that charge, together with three others with whom he was jointly indicted, was listed with the consent of all parties for four weeks commencing on 12 November 2018. On 11 October 2018 that fixture was vacated on the application of the Crown. The Crown wished to add charges (2) and (3) to the indictment and was not ready to proceed to trial on all three charges. In any event, the combined trial of all counts could not have concluded within the four weeks that had been reserved.
On 9 April 2019 the joint trial of Siar Munshizada and two co-accused on charges (1) and (2), the Barbaro and Yilmaz murders, was fixed to commence on either 8 or 15 July 2019, depending upon the duration of a prior related trial. Notwithstanding the Crown's earlier proposal to prosecute all three charges on the one indictment, by the end of March 2019 the Crown had resolved to proceed against the accused on charge (3), the murder of Michael Davey, separately.
On 3 July 2019 the joint trial of Siar Munshizada and two others on charges (1) and (2) was vacated because none of the accused had been able to secure legal representation, notwithstanding that they had grants of legal aid. The circumstances are more fully explained in the Court's reasons for vacating the trial: R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834. Thereafter, all three charges against all accused were mentioned before the list judge on 12 July 2019. Munshizada was arraigned on charge (3), the Davey murder, and pleaded not guilty. The Crown elected to have his trial on that charge listed first. The commencement date of 3 February 2020 was fixed at that time. As earlier mentioned, the accused was then represented by Zahr Partners and Mr Driels of counsel. Mr Driels was said to be available for the trial. Also on 12 July 2019 the trial of Munshizada with two co-accused on charges (1) and (2), the Barbaro and Yilmaz murders, was listed to commence on 30 March 2020.
On 4 October 2019 the list judge was informed that Archbold & Co had been retained from 16 September 2019 to represent Munshizada on all charges and that Mr Stratton SC was now briefed to appear for him at his trial for the Davey murder, commencing 3 February 2020. Mr James Trevallion of counsel was at that date briefed to appear for the accused on his trial for the Barbaro and Yilmaz murders, commencing 30 March 2020.
On 15 November 2019 the accused was again before the list judge in relation to the Davey murder charge. Mr Stratton informed the Court that the case was ready to proceed. It was next before the list judge on 22 November 2019 and 5 December 2019, followed by mentions before me as the assigned trial judge on each of 13, 18 and 20 December 2019. Mr Stratton appeared on each occasion, instructed by Archbold & Co. On the last two dates some minor interlocutory issues were resolved, at the conclusion of which the Crown and Mr Stratton confirmed that that trial was ready to proceed on the appointed date.
[4]
The accused's dismissal of his solicitors and counsel
Archbold & Co notified my Associate by email on 21 January 2020 as follows:
We refer to the above matter and wish to advise His Honour that Mr Munshizada has withdrawn his instructions with our firm and as such we are no longer acting for Mr Munshizada in his trial matters. This extends to Counsel who was briefed in his matters as well. We ask that the matter be re-listed for a mention at His Honour's convenience.
The parties were notified that the Davey murder charge would be relisted on Friday, 24 January 2020. In response to the Court's enquiry as to the cause of the withdrawal of instructions, Archbold & Co informed my Associate by email on 22 January 2020 as follows:
[It] is understood the accused is of the view this matter is not ready to proceed to trial.
The accused's withdrawal of instructions includes Mr Trevallion in relation to his trial for the Barbaro and Yilmaz murders. That trial has an estimate of four months. No reason has been given by the accused for having terminated Mr Trevallion's instructions. Having regard to the estimated length of the trial the accused will have difficulty replacing Mr Trevallion by 30 March 2020. The accused is well aware of the difficulty of securing trial counsel, acceptable to Legal Aid, for long trials on short notice. He has been aware of that since at least early July 2019 when the previous fixture of that trial was vacated.
[5]
Mention on 24 January 2020
On 24 January 2020, when asked the reason for the withdrawal of instructions so far as he could disclose it, Mr Stratton said:
I understand that Mr Munshizada believes that his current legal team, perhaps recent legal team, are not properly prepared to run his trial. He also instructed me to make another application which I wasn't prepared to make and I think that is a matter for Mr Munshizada, if he wishes to raise that with your Honour.
Your Honour, my position was that we were, at the stage of our conference, ready to proceed but there are some matters which, at an appropriate time, I would like to draw to your Honour's attention as to whether the matter is now ready to proceed.
The conference to which Mr Stratton referred had apparently taken place on 20 or 21 January 2020. Mr Stratton confirmed that as at 24 January he remained available to appear at the trial if the accused changed his mind and wished to renew his instructions. The two matters to which Mr Stratton referred as possibly affecting readiness had nothing to do with the state of preparation of defence counsel or his solicitors. They concerned (a) the absence of forensic reports regarding a pair of gloves found in Unit 2803 (pars 128-130 of the Crown Case Statement dated 30 January 2020 ("CCS")) and (b) disclosure by the Crown of messages recovered by police from the Blackberries of the accused's associates. These matters were readily disposed of on the basis that (a) the Crown would not be permitted to adduce evidence regarding the gloves because they were not capable of being connected with the alleged murder of Michael Davey and (b) the only messages recovered by police from the associates' Blackberries dated from October 2016 or later and, on the Crown's description of the contents, they would not be disclosable as unused material in relation to this murder charge.
On 24 January 2020 when I asked the accused directly what his position was he said:
Your Honour, basically at the moment I didn't even have a brief myself to go through. I got served a hard copy, then I got approved for a laptop. I received this laptop with the wrong brief on it. I had the Yilmaz allegation. I have so far given it back to intel and they are trying to put the Davey allegation. I haven't even gone through my brief myself so I am not in a position to represent myself either.
HIS HONOUR: Why are you discharging your solicitors and counsel then?
ACCUSED: There is a lot of instructions I have given which have not been met. I have asked for legal written advice which I have not received. I have met Stratton two weeks prior to the start date of the trial. I have asked many times to sit down and see his thoughts of the case, which I haven't got yet. Basically I thought they weren't ready and I did not take my instructions back from my legal team, only Mr Stratton, which then I was advised that they come as a deal.
With respect to the last point, I explained to the accused that his solicitors would not represent him at trial in circumstances where he had withdrawn instructions from senior counsel. I explained that trial advocacy is not the solicitors' function. A grant of aid for proceedings such as this is invariably conditional upon the briefing of counsel from a panel approved by Legal Aid, which will not fund solicitors to appear as advocates in murder trials.
The individual solicitor who has been instructing Mr Stratton attended court on 24 January 2020 and again on 28 January. She did not suggest that she felt any dissatisfaction with Mr Stratton's state of preparedness for the trial.
In the passage quoted at [20] above, the accused did not specify the instructions that he claimed had been given and not carried out. As he was unrepresented before me I could not inquire into such an assertion without intruding upon lawyer-client privilege and perhaps revealing to the Crown aspects of the accused's defence. Mr Stratton evidently did not consider that there were any outstanding instructions that he regarded as material to his preparation of the defence, as he had assured the Court repeatedly that the case was ready for trial.
Mr Stratton is an experienced criminal defence advocate. There is no question about his competence and diligence. On 24 January 2020 and on the subsequent days when the question of vacating the trial date was before the Court, no doubt was raised as to Mr Stratton having applied his experience and judgment in a professional manner, in discharge of his duty to have the case ready for trial according to his view of how the defence should be conducted in the best interests of the accused.
As for the accused's request for written advice and for an oral explanation from Mr Stratton of "his thoughts on the case", again the accused did not specify the topics upon which written or oral advice had been sought. The Court cannot inquire into this, in breach of privilege. But whatever it is that the accused wanted advice about, the absence of it is not a rational basis upon which to dispense with counsel's advocacy services in the representation of the accused before the jury in the six-week trial that is to commence within days. The Court must rely, and can safely rely, upon the professionalism of senior counsel to have provided such advice as may be necessary to the conduct of the trial.
I informed the accused on 24 January that withdrawal of instructions from Mr Stratton was very much against his interests and that he was forfeiting representation, at public expense, by one of the State's leading defence counsel. The following exchange with the accused took place:
HIS HONOUR: You take it upon yourself to say that you are not satisfied with him. Well, you are leaving yourself unrepresented of your own volition and you will be running the case on your own. It is just not a solution to anything to tell Mr Stratton that you are no longer engaging him. It simply leaves you without representation. The trial won't be vacated on this account.
ACCUSED: Yep.
HIS HONOUR: If you are not satisfied with Mr Stratton, who is an eminent and obviously capable counsel to run such a case, then you have made your own choice.
The accused responded that he would have difficulty preparing himself to conduct the trial because of restrictions upon his access to the brief. I urged upon him that this was all the more reason to reconsider his decision about dismissing his barrister, given that counsel's thorough reading of the brief was the important matter for the conduct of his defence and that, typically in a circumstantial case such as this, useful input from the accused himself would be relatively limited. I informed him that he would face difficulty defending himself. I put this in strong terms, with a degree of rhetorical exaggeration, in an endeavour to make an impression upon the accused of the folly of withdrawing counsel's instructions upon the inadequate basis to which he had referred. I said to him:
If you, in the week before, or two weeks before the trial, decide to dispose of counsel who is provided to you and who has prepared the matter, and then throw your hands up and say you are not ready, the trial will not be adjourned on that basis. That is just your own choice to put yourself in a position where you can't adequately defend yourself.
At the end of the interlocutory hearing on Friday, 24 January 2020 the proceedings were adjourned to Tuesday 28 January, to afford the accused an opportunity to reconsider his withdrawal of instructions. Before adjourning I addressed him as follows:
I am just going to adjourn the case now until next Tuesday, which will be the 28th. […]
But I strongly urge you to reconsider what you have done. It would be extremely unwise for you to go into this trial without representation. It is a complicated trial; it is listed to take six weeks. There will be procedural issues about the manner in which the evidence of some of the informer witnesses is to be taken. There will be arguments of admissibility. One has arisen this morning. Others will arise, I can see that from the Crown statement. And the person who is best placed to argue those questions of admissibility and ensure that only the evidence that properly should go before the jury does is Mr Stratton.
It would be too late to try to engage other counsel and there is no reason why Legal Aid would provide you with other counsel if you have rejected somebody of Mr Stratton's stature. So, please, reconsider that decision. It is not at all in your interests. But if you adhere to it, the trial will go ahead in any event on 3 February.
To that point on 24 January 2020, from the minimal explanation of the accused's conduct as referred to at [18] and [20] above, I considered that his dismissal of his legal representatives was unreasonable. I was of the view that if the accused should adhere to that decision, then upon the Court taking into account the other relevant considerations identified later in these reasons his application to vacate the trial date should be refused.
[6]
Adjournment application on 28 January 2020
On 28 January 2020 the accused was again before the Court by Audio Visual Link. He had not contacted Archbold & Co or Mr Stratton over the long weekend, either directly or through his relatives who reside in Sydney. The accused confirmed to the Court that he was not renewing his instructions. Mr Lange appeared, instructed by Mr Chahine. He stated that, subject to confirmation of his release from another trial listed to commence in this Court on 24 February 2020, he would be willing to appear for the accused. This would be subject to the grant of legal aid being transferred. Mr Lange asked that the proceedings be stood over again, to Friday, 31 January 2020, for the purpose of him clarifying his availability. He proposed that on that date, if his availability and the assignment of the grant of legal aid were confirmed, he would ask that the commencement of the trial be deferred to 24 February 2020 to enable him to prepare and to fulfil other commitments in the meantime.
I stood the proceedings over to 31 January 2020, as requested, in order to establish a settled basis upon which the accused would apply for either a three-week adjournment of the trial (to 24 February 2020) or vacation of the trial date altogether.
Mr Stratton requested that he be released from further attendance. Before confirming that release I addressed the accused as follows:
Mr Munshizada, I just make this clear. This is a once and for all decision. Mr Stratton has been retained to appear for you in this case for six weeks and you have withdrawn instructions to him as counsel. You won't be able to change your mind about that if you are adhering to that today. This is the decision day. The trial is to commence next Monday and if Mr Stratton is not engaged for it then he must be left free to represent other people who are in need of counsel. So after today, if you are adhering to this decision today, he will simply not be available, you will have all your chances in Mr Lange's hands. If Mr Lange becomes free from the other case and is available and if I agree to adjourn the commencement of your trial for three weeks then he can appear for you, provided Legal Aid will grant the transfer, but you are just gambling on that, so you need to be very very clear that if you are adhering to this decision to discharge Mr Stratton it can't be turned back and if the other arrangements are not put in place then the case will run without you being represented. Do you understand that?
ACCUSED: Yes, I understand, your Honour.
HIS HONOUR: And you also have to realise that, despite what Mr Stratton says, there's no guarantee that Legal Aid will agree to provide you with other counsel. You have perfectly competent counsel of, as I mentioned last week when this matter was mentioned, high repute. If you choose to reject that counsel it's a matter for Legal Aid whether they decide at public expense to provide you with someone else who you are happy with, but they are not obliged to and the Court in this situation is not obliged to defer your trial for your lack of representation if that is the situation you find yourself in. Your rejection of Mr Stratton at this stage is your own choice to dismiss capable counsel and to take the risk of running this case on your own. If you find yourself in that situation on Monday that will be your responsibility and if there is not a clear path to engage other counsel with some short adjournment then you will simply be running the case on your own. Is that what you want to do?
ACCUSED: Yeah, your Honour, that's what I want to do.
[…]
HIS HONOUR: All right. Well, I can't make it any clearer than that. If this doesn't come off, Mr Lange, if you are in communication with Mr Munshizada outside court or if Mr Stratton or either of the solicitors is, if you have the opportunity to go through this with him please make sure he does really fully understand that. I can't say it any more clearly and he said he accepts it, but this is the day. This case is not going to go off for any more than a short period for some replacement counsel to be interposed if that can be done.
LANGE: As your Honour said, your Honour has made it very clear. We will make it clear again as well. That's all I can do.
[7]
Application on 31 January 2020 to vacate the trial
On 31 January 2020 Mr Lange was able to confirm that he was free to appear for the accused from 24 February 2020, subject to Legal Aid agreeing to an assignment of the grant. He would be unable to ascertain Legal Aid's attitude to the proposed assignment until Tuesday, 4 February 2020. He asked that the trial not commence on 3 February 2020 and that the matter be mentioned on the afternoon of 4 February to ascertain Legal Aid's position.
As I pointed out to Mr Lange, an objection to this course was that even if Legal Aid should approve a transfer of the grant as at 4 February that would only lead to a further application to defer the commencement of the trial to 24 February, with Mr Lange undertaking his preparation in the meantime. The Court could have no confidence that the accused would be satisfied with Mr Lange or that he would continue to retain his new counsel up to 24 February 2020 and for the six weeks duration of the trial thereafter. On the wholly unsatisfactory explanation of the accused's termination of Mr Stratton's services, I informed Mr Lange that I saw a three-week adjournment to enable Mr Lange to appear as purely speculative.
I referred Mr Lange to the transcript of 24 January 2020 in which the accused's minimal and obscure purported explanations of his dissatisfaction with Mr Stratton had been offered. Mr Lange requested that I stand the proceedings down from 11:00am to 2:00pm to enable him to take instructions upon any further explanation that could be advanced. Upon resumption at 2:00pm Mr Lange read an affidavit of his instructing solicitor deposing that the accused had given "the following reasons as to why the trial was, in his mind, not ready to commence on 3 February 2020":
1. On 22 March 2016, the wife of the deceased met with a person of Islander appearance. The Crown case is that that person is Jared Prakash, an alleged associate of the group. The accused informs me and I verily believe that he made a request of his previous legal representatives that the tracking device data for Jared Prakash's vehicle be requested/subpoenaed, but that this was not done.
2. Convoy of vehicles on the day of the murder - the Crown case is that 3 vehicles travelled to St Mary's in convoy. Police assert the vehicles have been detected on cameras on the M4. The Accused instructs me that he is yet to see the footage and that he has only been provided with still images. I am further instructed that a fourth vehicle was seen in the images but was not identified by Police. I am informed and verily believe that the accused instructed his previous legal team to obtain footage of the M4 in the opposite direction to see the fourth vehicle, but that this was not done.
3. I am further informed and verily believe that the Accused instructed his previous legal team to obtain all Blackberry messages from RS...670 at the time of Mangrove Mountain but that these were not obtained.
4. The accused further stated to me words to the effect of, "On 22 March and 29 March, two very important dates, I was playing indoor soccer. I asked my legal team to obtain evidence and information that I was playing indoor soccer on these two dates. CCTV from Australia Avenue show me leaving in soccer clothes." I am informed and verily believe that this was not done.
5. 27-28 March the police provided two different transcripts in the Brief. I am informed and verily believe that the Accused instructed his legal team to obtain a relevant expert but that this was not done.
6. I am instructed that, in relation to 30 March, police provided a transcript of a conversation that took place in Australia Avenue. I am informed and verily believe that the Accused instructed his previous legal team to obtain the CCTV footage from within the unit at the time of the conversation as he was not privy to that conversation, but that that was not done.
7. I am further informed and verily believe that the Accused instructed his previous legal team to obtain an expert opinion in relation to the alleged admission on 12 November 2016 but that this was not done.
8. I am further instructed that the accused instructed his previous legal team to obtain the listening device material from the day before, that day and the very next day in order to place the transcript provided by Police in its proper context. I am informed and verily believe that this was not done.
9. The Crown asserts that the relevant gun was located at Ada Street, Concord. I am informed and verily believe that the Accused requested his previous legal team to obtain all surveillance and DNA records in relation to that property.
In the absence of any objection or challenge by the Crown I proceed on the assumption that the accused made these requests to his solicitor and/or counsel for further enquiries to be undertaken. There is no direct evidence of what view Archbold & Co or Mr Stratton took of the matters raised by the accused except that, with respect to No 8, on 15 January 2020 they asked the Crown to supply all listening device material for the whole of 12 November 2016.
[8]
Principles
The accused's application to vacate the trial on the basis that he does not have legal representation is to be decided in the exercise of the Court's discretion, applying principles stated by a majority of the High Court in Dietrich v The Queen (1992) 177 CLR 292 and by the whole Court in Craig v South Australia (1995) 184 CLR 163. In Dietrich v The Queen Mason CJ and McHugh J stated the position in these terms (at 311-312):
[…] Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused.
A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained.
(Citations have been omitted from the above quotation and from those which follow).
Their Honours reiterated the position at 315 as follows (with emphasis added):
In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.
Deane J made the following statements in Dietrich v The Queen:
In determining the practical content of the requirement that a criminal trial be fair, regard must be had "to the interests of the Crown acting on behalf of the community as well as to the interests of Dietrich v The Queen the accused". There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented. The most obvious category of case in which that is so is where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available [Greer v R (1992) 62 A Crim R 442 per Kirby P] (at 335).
It follows from the foregoing that, as a general proposition and in the absence of exceptional circumstances, a trial of an indigent person accused of serious crime will be unfair if, by reason of lack of means and the unavailability of other assistance, he is denied legal representation (at 337).
The following passage from the judgment of Toohey J in the same case at 337 is also of present relevance (emphasis added):
It is not possible to say that the trial judge must adjourn the trial for there are other considerations to be taken into account. Counsel for the applicant is not right in suggesting that only the interests of the accused are relevant. The situation of witnesses, particularly the victim, may need to be considered as well as the consequences of an adjournment for the presentation of the prosecution case and for the court's programme generally. But ordinarily the requirement of a fair trial will be the prevailing consideration. Therefore, in the absence of compelling circumstances, a trial should be adjourned where an indigent accused charged with a serious offence lacks legal representation, not due to any conduct on the accused's part.
In Craig v South Australia the Court reiterated the statement of principle from the judgment of Mason CJ and McHugh J in Dietrich v The Queen quoted at [38] above in the following passage at 184:
The decision of this Court in Dietrich v The Queen established that, in a criminal case where an unrepresented accused is facing trial for serious offences, a trial judge has power to make an order staying the proceedings if, in the circumstances of the case, it appears that the accused would otherwise not receive a fair trial. In the course of their joint judgment, Mason CJ and McHugh J made the following comments as reflecting their approach and that of the other majority Justices:
"... we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available."
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.
The Court in Craig v South Australia said the following at 186:
[The first instance decision on an application for a stay of criminal proceedings by an unrepresented accused] encompassed the identification and determination of relevant questions of law and fact involved in deciding whether a trial in which the appellant was left without legal representation would be unfair and whether a stay should or should not be granted. Those questions included the question whether the appellant's inability to obtain legal representation should be seen as being "through no fault on his ... part". Like almost any question which arises for determination by a judge, that question of "fault" can, once the facts are ascertained, be dressed in the garb of a question of law. Essentially, however, it is a question of fact involving an element of discretionary judgment.
[9]
Unreasonableness of the accused's withdrawal of instructions
Mr Lange has not at this point read the brief. He submitted that the accused's instructions quoted at [35] above were not fanciful, capricious or obviously unrelated to the case and that "it is entirely reasonable for the [accused] to wish to explore the evidential foundation of inferences the Crown will ask the jury to draw in support of its case". He submitted that the accused's perception that these were valid and material instructions and that they had not been carried out was sufficient to establish that he acted reasonably in dismissing his counsel and solicitors. I do not accept that submission. It ignores both the breadth of counsel's authority in deciding how the case will be run and the corresponding absence of any right in the client to control or to dictate to counsel.
In many trials there will be occasions when an accused purports to instruct his counsel to challenge the Crown's evidence in a particular way, to ask specific questions in cross-examination or to tender certain evidence by way of contradiction of a Crown allegation. Counsel, in exercise of his or her professional judgment, is not bound to take the proposed course. The nature and extent of pre-trial enquiries that defence counsel and instructing solicitors undertake and the scope of their requisitions to the Crown for the provision of additional information will be a product of counsel's judgment about how the trial is to be run. Mr Stratton's decision to take action, or not, and if so when, on the 9 lines of enquiry instructed by the accused is an aspect of his judgment about the manner in which the charge is to be defended The exercise of an independent judgment in such matters is inherent in counsel's role and authority.
As Mr Lange accepted, an accused is, generally speaking, bound by his counsel's decisions. In R v Birks (1990) 19 NSWLR 677 Gleeson CJ (with whom McInerney J agreed) said the following at 685D-F:
2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of flagrant incompetence of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.
Counsel's broad authority in conducting the defence of an accused person is illustrated by the constraints against examination of counsel's forensic decisions on appeal. Gleeson CJ made the following observations in TKWJ v R (2002) 212 CLR 124; [2002] HCA 46:
[8] […] Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives.
[16] It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.
The judgments in that case recognise that a decision of counsel may lead to a miscarriage of justice that may be corrected on appeal, notwithstanding that the decision was within his or her authority. If flagrant incompetence is manifest in the decision, that may be a step towards a conclusion that injustice has occurred (McHugh J at [80]). On the other hand, even though counsel's decision may be objectively explicable on the basis of forensic advantage, that will not preclude the appellate court from finding that there was a miscarriage of justice (Gaudron J at [28]). For present purposes the importance of the judgments in TKWJ v R is that they emphasise the breadth of defence counsel's authority, the very limited circumstances in which counsel's forensic decisions may be judicially scrutinised and the limited extent and purpose of such scrutiny in an appeal.
In particular, the McHugh J made this statement at [74] (citations omitted):
[74] […] Where an appellant contends that the conduct of his or her counsel has caused a criminal trial to miscarry, however, the appellant carries a heavy burden. This is a consequence of the adversarial nature of our legal system and the role and function of counsel. Criminal trials are not inquisitions. They are contests "in which the protagonists are the Crown on the one hand and the accused on the other". Ordinarily, a party is held to the way in which his or her counsel has presented the party's case. That is because counsel is in effect the party's agent. Counsel is "ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted". The discretion retained by counsel in the running of a case is very wide. […].
The legal representation that Dietrich v The Queen requires, in all but exceptional circumstances, in order to have a fair trial of a person charged with a serious crime, is representation governed by the inherent incidents of counsel's role and authority in the adversary system of criminal justice in this State; that is, representation by counsel who exercises the broad, independent authority over the way the case is conducted as described in R v Birks and TKWJ v R.
On this application the accused does not assert that his recently dismissed legal representatives committed any patent breach of their professional responsibilities or that they repudiated their role in any fundamental way. For example, it is not suggested that they were affected by a conflict of duties, or that they breached the accused's confidence and privilege, or that they failed to embark upon reading the material served by the Crown. The accused merely claims that counsel and solicitors failed to follow his instructions regarding pre-trial preparations for the conduct of the case, in matters of detail.
Item 1 in the list quoted at [35] above involves a misconception on the accused's part concerning the case against him. The Crown does not allege that Jared Prakash attended the vicinity of the deceased's home on 22 March 2016. The Crown expects the deceased's partner to give evidence that a person of Islander appearance met with the deceased at that time and place. The Crown has no positive identification evidence. It is not apparent that information as to the movement of Prakash's vehicle would be material to the defence case. (CCS 22-29).
Items 2 and 3 concern material that the accused has assumed would be available but apparently is not. As to item 2, the Crown has informed the Court that it only has still photographs of vehicles moving westward on the M4 but no video footage and no images of vehicles moving eastward. As to item 3, the period referred to in this request is February 2016, when the Crown alleges that the accused attended at Mangrove Mountain to test fire weapons. The Crown has informed the Court that it has no evidence of messages on the Blackberry of RS..670 from February 2016.
Items 4-9 are all matters upon which defence counsel would exercise his or her own judgment as to whether further enquiries before trial would be fruitful, whether the issue to which such further enquiries are directed might be better raised during the running of the case without prior notice to the Crown and whether the relevant subject ought to be left alone altogether. Counsel's decision on these matters would be affected by the detail of the instructions he received and his assessment of the likelihood of further pre-trial enquiries turning up anything useful.
For example, with respect to item 4, the Court has no information as to whether the accused provided to his legal representatives any details of where or at what time or with whom he may have been playing indoor soccer on either 22 or 29 March 2016. It is not apparent that his legal representatives were put in a position to make any enquiries in this respect. Even if they were, counsel may have formed a judgment that proving the accused's location at such times as indoor soccer matches were in progress would not be useful.
As to item 5, the evidence of the conversation recorded through a surveillance device on 27-28 March 2016 will be the sound recording. Any transcript will be subject to correction by reference to the sound. It is not apparent what category of expert might have been envisaged by the accused with reference to this. Counsel may have had view as to the sufficiency of the recording for defence purposes, for example, if he considered it so indistinct or the participants so unidentifiable that the recording would not aid the Crown case in any event.
Items 6-9 are likewise concerned with possible aspects of the running of the defence case and possible pre-trial enquiries in preparation for those aspects, regarding which the judgment whether to pursue such matters before trial or in the conduct of the case is within the province and authority of counsel. To the extent that counsel did not implement the instructions on items 4-9 I infer that he did not see forensic utility in them or did not regard his instructions as sufficiently detailed and plausible to warrant pursuit of the matters. That situation is a normal incident of the relationship between an accused person and counsel who is briefed to represent him.
For the accused to have dismissed his counsel on the basis that these detailed instructions were not carried out was unreasonable. He has withdrawn instructions because counsel exercised an independent judgment about the conduct. But counsel who exercises such control and authority over the defence case is the only kind of legal representation one may have in a criminal trial.
Mr Lange relied upon the binding of an accused by his counsel's conduct and the unwillingness of the Court of Criminal Appeal to scrutinise counsel's decisions, as explained in R v Birks and TKWJ v R. Mr Lange submitted that this made it reasonable for the accused to dismiss counsel who would otherwise commit him to forensic decisions that may be to his detriment but that could not be reopened as grounds of appeal. The reasonableness or otherwise of the accused's dismissal of his counsel, so far as relevant to the Court's discretion to vacate the trial in accordance with Dietrich v The Queen and Craig v The Queen, cannot be approached in this way. A conclusion that it was reasonable for the accused to escape from being bound by Mr Stratton's professional judgments could only be reached if the Court should inquire into those judgments and consider them wrong. Defence counsel's judgments are not amenable to such judicial evaluation, either in principle or as a matter of practicality. As to the latter, the Court could not possibly enquire into the merits of Mr Stratton's handling of the case before the Court has heard the evidence and with no possibility of knowing the accused's instructions or Mr Stratton's perception of them.
The accused's position on the present application amounts to this: that he may form his own ideas about the conduct of his defence, instruct his solicitors and counsel to make enquiries and to prepare accordingly, and then terminate their services when they do not carry out his instructions. Further, that he may on this basis withdraw his instructions at a time when it is too late for replacements to be retained and then have his trial date, fixed six months in advance, vacated on the ground that he is unrepresented. If all of this were to be accepted it would be impossible for the Court to maintain order in its administration of the criminal law. The accused's submissions, if acceded to, would subordinate the Court's orders for the listing of trials to the notions of accused persons about how their cases might be run and to their choice of whether to dismiss their counsel upon grounds of disagreement and, if so, when. The Court's discharge of its duties would be subject to the hazards of accused persons' frequent disagreements with their publicly funded legal representatives.
The Court's rejection of the accused's position is supported by the following observations of Carruthers AJ in R v BK [2000] NSWCCA 4:
[31] […] [T]he High Court has consistently reaffirmed the basic proposition that in determining the practical content of the requirement that a criminal trial be fair, regard must be had "to the interests of the Crown acting on behalf of the community as well as to the interests of the accused": see per Deane J in Dietrich v The Queen at 335. quoting Gibbs ACJ and Mason J in Barton v The Queen (1980) 147 CLR 75 at 101.
[32] Relevantly, in Moss v Brown [1979] 1 NSWLR 114 at 126. the Court of Appeal (Moffitt P, Reynolds and Hutley JJA) said:
"In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in respect of invoking and enforcement of the criminal law, which includes seeing that the public revenue is not imposed upon, it is entitled to maintain those rights, even if they may bear heavily upon some accused. As Lord Goddard CJ said in Grondkowski [1946] KB 369 at 372: 'The judge must consider the interests of justice as well as the interests of the prisoners'."
[33] In the light of these authorities, it seems to me that, ever vigilant as a trial judge must be to ensure that, so far as it is possible an accused person has a fair trial according to law, nevertheless, the trial process must not be allowed to degenerate, by reason of manipulation by the accused, to the position where it is at his or her mercy. This would be so inimical to the public interest and the general administration of justice that it would necessarily lead to an undermining of public confidence in the criminal justice system.
[34] Thus in Dietrich v The Queen at 335-336 Deane J said:
"There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented. The most obvious category of case in which this is so is where an accused desires to be unrepresented or persistently neglects or refuses to take advantage of legal representation which is available."
[35] Deane J referred to R v Greer. In that case Kirby P emphasised that an accused person has no right to determine for himself or herself when he or she will be ready for trial. At 451.
In the present case I do not consider it necessary to determine whether the accused's actions and his present application are manipulative in the sense of having an ulterior purpose of simply putting off the trial for its own sake. Whether or not Carruthers AJ intended to use the word "manipulation" in that sense, I respectfully adopt his Honour's observations at [33]. The Court must guard against undermining of the orderly listing of trials by such unreasonable conduct of accused persons as would have the effect of creating disruption and procrastination, whether intended or not.
[10]
Further considerations relevant to the discretion
Taking into account the accused's fault in leaving himself unrepresented by having unreasonably withdrawn instructions from competent solicitors and counsel, the Court must weigh other significant factors that bear upon the discretion to vacate the trial fixture in order to allow time for alternative representation to be secured. This cannot be treated as a mere adjournment for three weeks until Mr Lange is available on 24 February 2020 because, on the accused's performance to date, there can be no assurance of him maintaining instructions to Mr Lange. The question of vacating the date must be approached upon the basis that there is significant likelihood the trial may not be able to commence at any time within the six weeks that have been allocated for it. Generally, it is a consideration against vacating the present trial date that the accused may never be prepared to accept representation by counsel who exercises the usual independent judgment about conduct of the case and that there is therefore a high chance that deferring the trial will achieve nothing.
I take into account that the members of the community most immediately affected by Mr Davey's death have a strong and legitimate interest in seeing the charge against the accused determined by a jury as soon as possible. The deceased is survived by his father, brother and a female de facto partner, with whom he was residing at the time of his death and who was in their home near to the scene of the shooting when it occurred. It is nearly 4 years since Mr Davey died and more than 18 months since the accused was charged.
I have regard to the strong interest of the general public in having serious criminal charges of this nature brought to trial efficiently, in accordance with the Court's orders as to the date of trial and under the control of the Court. In R v Alexandroaia (1995) 81 A Crim R 286 Hunt CJ at CL, Grove and Dunford JJ dismissed an appeal from a trial judge's refusal of an adjournment to permit the accused to make further enquiries relevant to his defence. Their Honours said:
It is correctly conceded by the appellant that the judge was entitled to take into account (as he did) the strong public interest that, once fixed for hearing upon the basis that the parties were ready to proceed, a criminal trial should proceed with expedition without being deflected by collateral inquiries such as the three to which reference has been made.
If this trial should be vacated, six weeks of the time of the allocated trial judge will be lost to the criminal list. It would be impossible to bring forward other trials, given the short notice and the need to co-ordinate with Crown and defence counsel and with witnesses. The avoidance of such disruption to the Court and loss of judge sitting time is extremely important. There is a general public interest in efficient and economic use of Court resources. Losing this six week fixture would necessitate relisting the trial later, thereby pushing out the dates that may be given for the trials of other accused persons who are remanded in custody. A trial judge can be reallocated to civil work but the disruption and delay in the criminal list, with a bearing upon accused persons remanded in custody, would be irrecoverable.
The Court must take into account the impact of a long adjournment upon the 40 or so witnesses whom the Crown proposes to call in this trial. They include witnesses for whom the trial and its delay involve personal stress, such as the deceased's female partner and, in a different category, former associates of the accused and of Sultani. Some of the former associates who are co-operating with police and with the Crown are under protection. The legitimate interests of such witnesses in having this trial concluded is a significant consideration. Other witnesses in the Crown case are police officers including detectives, uniformed officers and forensic personnel. While giving evidence is a professional matter for them, significant logistics, costs and commitment of police resources are involved in achieving the availability of these witnesses for a six week trial. Vacating the trial and rescheduling it would have an impact on the efficient use of serving police officers.
The Court takes into account the loss of efficiency that will be experienced in the conduct of the trial as a result of the accused being unrepresented. This will protract the trial and will require significant intervention from the bench to ensure fairness, which would not be necessary if the accused was represented. However, a fair trial can be achieved with the application of sufficient care on the part of the Court.
[11]
The Crown's position
The Crown supported deferral of the commencement of the trial until Tuesday, 4 February 2020 and, if Legal Aid should then approve the transfer of the grant to Mr Lange and his solicitor, a further deferral to 24 February 2020. The Crown's position was based upon the hope of having stable legal representation from 24 February 2020. That is a frail hope. I have taken into account the improvement in efficiency of the trial if the hope should be realised but I do not regard the prospect of stable legal representation as sufficiently realistic to counter the other matters to which I have referred.
The Crown also expressed concern about the accused's dismissal of Mr Trevallion as counsel for his trial, jointly with two co-accused, for the Barbaro and Yilmaz murders, to commence on 30 March. It is the Crown's view that the accused's difficulties in securing replacement counsel for 30 March will be exacerbated by him being occupied in the trial of the Davey murder over the next six weeks. I do not accept that the period of his occupation in this trial will be any significant additional impediment to re-briefing for 30 March. If there are solicitors and counsel available on eight weeks' notice to take that case, there is no reason why they cannot be engaged and commence to read the brief while the present trial is running. So far as the Court is presently aware, there is no rational explanation for the withdrawal of Mr Trevallion's instructions. If the accused does not have representation in that trial by the time it is to commence, his position may be much the same as has been considered in this judgment.
[12]
Order
Taking into account all of these considerations, the objective of having the accused legally represented in order to secure fairness of the trial, in accordance with Dietrich v The Queen, must in this exceptional case give way to other powerful considerations requiring that the appointed trial date be adhered to.
For these reasons, on Friday, 31 January 2020 I dismissed the accused's application that the trial be vacated and confirmed that it would proceed at 10:00am on Monday, 3 February 2020.
[13]
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Decision last updated: 13 May 2022