HIS HONOUR: This is an application by the accused for an adjournment. Section 40(1) of the Criminal Procedure Act 1986, provides that a court may at any stage of criminal proceedings, adjourn the proceedings generally or to a specified day, if it appears to the Court necessary or advisable to do so. The case law establishes that whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge, that is, within my discretion.
In determining an adjournment application, I am not confined to the interests of the accused but the interests of justice as well: R v Cox [1960] VR 665, approved by the New South Wales Court of Criminal in R v Barca (19 August 1978, unreported). It is basic to the rules of procedural fairness that an accused be given a reasonable opportunity to present his or her own case, which necessarily includes a reasonable opportunity to prepare that case before being called upon to present it. The appearance that justice has been done, is particularly important in a criminal trial but, nonetheless, some limitation is required to be placed upon the right of the accused to delay the trial to prepare his or her case: R v Alexandroia (1995) 81 A Crim R 286 at 290, Jamal v DPP [2013] NSWCA 355 at [54]. I am entitled to take into account the strong public interest that, once fixed for hearing, upon the basis that the parties were ready to proceed, a criminal trial should ordinarily proceed with expedition. That was stated in R v Alexandroia at 291. The significance of this consideration has been reinforced by the enactment of the case management provisions commencing at s 134 of the Criminal Procedure Act 1986. That was established in Slotboom v R [2013] NSWCCA 18 at [36].
The accused is charged, that on 20 December 2014 at Bankstown, he did assault his then de facto wife, Jasmine Bohsali, occasioning actual bodily harm to her. The complainant is now known as Jasmine Kelly. As I understand it, Kelly is her maiden name. The accused is also charged that on the same day, at Bankstown and elsewhere in this State, he did detain Jasmine Bohsali, without her consent, with the intention of committing a serious indictable offence, namely, intimidation, and, at the time of detaining her, actual bodily was occasioned to her. This is the aggravated form of the crime commonly known as kidnapping.
The accused was arrested on 3 January 2015, when he was seeking to ascertain the whereabouts of the complainant, who had taken refuge in a Coles store at Wattle Grove, a suburb of Sydney, near Holsworthy. There were then proceedings in the Local Court. The first mention in the Downing Centre Local Court was on 6 January 2015. The proceedings were then stood over to Burwood Local Court. On 9 November 2015, the Local Court at Burwood, committed the accused for trial. The matter was first mentioned in this Court on 20 November 2015 and then on 11 December 2015. The accused was arraigned and pleaded not guilty on 26 February 2016 and the matter was then set down for hearing on 17 October 2016, with an estimate of two to three weeks. There were mentions on 11 March, 18 March, 8 April and 29 April 2016, when there were no appearance by or on behalf of the accused. The matter was then mentioned on 13 May 2016 when a Mr Karnib appeared for the accused and the Court confirmed the trial date of 17 October 2016. On 30 September 2016, the Court's record indicates that Mr Kahn, appeared amicus curiae, that is, as a friend of the Court, presumably as a lawyer formerly acting for the accused, and may have indicated to the Court that there was a problem concerning the accused's representation. The matter was then adjourned to 5 October 2016 for mention. On that day, Mr Daniel Roff of counsel, appeared for the accused and the Court confirmed the trial date of 17 October 2016.
Mr Roff was instructed by Mr Sam Abbas, the principal solicitor of a firm called Allied Lawyers at Auburn. On 17 October 2016 the matter was listed before Conlon DCJ, Mr Smith appeared for the Crown and Mr Roff appeared for the accused. From what I shall shortly state it is clear that the accused applied for an adjournment and his Honour allowed an adjournment of one week, that is until 24 October 2016. Exhibit 2-2 on this application is an email transmission from Mr Abbas to a solicitor at the Office of the DPP. The substance of the letter is this:
"As you are aware, I am the solicitor instructed by Michael Nour in the above trial. As you are also aware I was instructed very late in the matter, under two weeks prior to the trial commencing. Daniel Roff of counsel appeared on Monday of this week before his Honour Judge Conlon. Mr Roff informed the Court of certain difficulties in the trial proceeding, namely the necessity of conferencing [sic] as [sic] number of potential witnesses to be called in the defence case. His Honour saw no reason why this process couldn't happen within a week, and accordingly adjourned the trial until Monday 24 October 2016.
Mr Roff and I have now undertaken not only the process of speaking with six defence witnesses, but also proposed a plea offer to resolve the matter. The plea offer we have submitted was met with disapproval by the Director.
Of greater concern however is the emergence of the following matters which placed Mr Roff and I in the unenviable position of not being able to proceed with the trial on 24 October:
1. We now consider it imperative to engage a medical expert to review and report on the prosecution's medical report in relation to the victim's injuries. This process will require an application to the legal aid commission, as well as locating a suitable medical expert to prepare a report.
2. Having conferenced [sic] six defence witnesses, phone records will need to be obtained and are considered essential to the defence we propose to raise.
3. Mr Roff and I are committed to a trial in the District Court commencing on Monday, 7 November 2016. In light of the number of witnesses we intend to call in the defence case, the remaining two weeks should the trial commence Monday will be insufficient to complete the trial.
Accordingly, we request that this matter be re-listed this morning [Friday] so that Mr Roff may formally seek to have the trial vacated. In this regard we note that this represents the first trial occasion in the matter."
The matter was mentioned before Conlon DCJ on the morning of 21 October 2016 and on the accused's application the trial date of 24 October 2016 was vacated. His Honour then set the matter down for hearing on Monday 26 June 2017 with an estimate of three to four weeks.
There were mentions on 8, 13 and 15 December 2016 but they were all to vary the accused's bail conditions. The matter was called over by his Honour the Chief Judge, Justice Price, on 12 May 2016. The Court's record indicates that Mr Stevenson appeared for the Crown and Mr Roff again appeared for the accused. After discussions with counsel his Honour reduced the estimate of the hearing time from three/four weeks to two/three weeks. His Honour directed that there be a pre-trial conference conducted before 2 June 2017. There is no other evidence before me about a pre-trial conference. I can only presume, on the presumption of regularity, that it was held as directed by the Chief Judge.
The matter came on for trial before me on the morning of Monday 26 June 2017. I was told there were a number of pre-trial applications. According to my notes before the pre-trial applications commenced the accused was arraigned at 12.08pm and pleaded not guilty to each of the two counts in the indictment. At the request of the accused I amended the indictment to delete the second name given to the accused in the indictment. I was told that there were pre-trial applications concerning the admission of tendency evidence, a pre-trail application concerning the editing of two calls made to the emergency telephone number by the complainant, and an argument about an alleged admission made by the accused at the police station at the time of his arrest.
Mr Roff, of counsel, who was appearing for the accused, asked me to delay ruling on that last application until the evidence of the complainant had been given, as it might not be necessary for me to make any ruling, indicating therefore that depending on what was said by the complainant in cross‑examination there may be no dispute that what the Crown alleged to be an admission should go into evidence because there may have been argument available to the accused that it was no admission at all.
At no stage was it suggested that the matter was not ready for trial. I should indicate that the formal arraignment of the accused commencing was at 12.08pm because I was asked to wait off the Bench as the parties were trying to negotiate a shortening of the trial process. I spent the rest of Monday, 26 June, accepting evidence, reading it and hearing argument about the tendency evidence sought to be led by the Crown. The matter was adjourned at the normal hour to Tuesday 27 June 2017, when I was asked again to wait off the Bench. I initially gave the parties until 10.30 then until 11.15 and then until noon. By noon the parties had not reached any agreement in the alleged shortening process.
I had indicated to the parties when asked to allow them time that I was concerned that a jury be empanelled prior to lunch on 27 June. When the parties had not reached any accommodation as to shortening the trial at noon on 27 June 2017 I sought to commence the process of empanelment. It started at about 12.30. The jury was empanelled by 12.55. The parties had asked me to send the jury home after it was empanelled in the expectation that the negotiations which the parties were conducting might be fruitful and as, in any event, with my opening remarks to the jury and the opening address by counsel for the Crown, little evidence could be adduced on that day. I acceded to the parties' application and sent the jury home at 1pm, asking them to return at 9.30am on the following morning at the jury room.
I returned to the Bench and I was told at 2.10pm that the parties believed they had reached an accommodation but the learned Crown Prosecutor had to obtain formal instructions from the Director or a Deputy Director of Public Prosecutions. I then stood the matter over to Wednesday 28 June 2017 at 10am and I was advised that counsel would let me know prior to 10am on Wednesday 28 June 2017 what had occurred. I received no such communication. When I returned to the Bench on Wednesday 28 June 2017 Mr Roff advised me that his solicitor had received an e-mail transmission about 1.15am that morning, indicating that his instructions were withdrawn and that e‑mail was forwarded to Mr Roff shortly thereafter. I then adjourned the matter to 10.45am but the parties were not ready until 11am. I was told at 11am that Mr Abbas, his instructing solicitor, had conferred with the accused and that neither Mr Abbas nor Counsel were now instructed to act for the accused. The accused then told me that Mr Abbas had told him that he would represent the accused during the trial. I then excused Mr Roff from Court to enable him to obtain the attendance of Mr Abbas before me, Mr Abbas then being engaged in another case in the Downing Centre.
At 11.34am Mr Abbas appeared and told me that he had a conference with the accused at 10.30 and that he told the accused that if the accused withdrew instructions from Mr Roff that his instructions would also be withdrawn. He went on to tell me that he had only told the accused that if he obtained a further grant of Legal Aid he would be happy to act for the accused but presumably with another barrister, also appointed by Legal Aid. Mr Abbas made it clear that he was not appearing for the accused in the current trial but would represent the accused in any further proceedings. Mr Abbas also advised me that he believed it unlikely that Legal Aid would make a further grant of assistance to the accused.
At 11.40am the accused applied for an adjournment. That adjournment application continued to entertain me until I adjourned the matter at 3.08 yesterday afternoon and has continued to occupy me until the current time which is 1.24pm. I took a short break at 12.10pm because the accused told me that he was then feeling unwell.
The material before me indicates that during the whole of the proceedings in the Local Court the accused was represented by a Mr James Paytn, solicitor, of the firm of Phillip Ryan Solicitors and that Mr Paytn briefed Mr Morrison of counsel who appeared for the accused during the committal hearing. The accused told me from the dock that Mr Paytn and Mr Morrison were privately retained on his behalf and at the expense of either the accused or of a supporter. I am prepared to accept that. However such financial support was not available to the accused in proceedings in this Court.
Initially the accused sought to have Mr Adam Houda represent him but eventually Messrs Zahr Partners were appointed by Legal Aid. According to the accused they were unable to obtain a barrister to appear for him. It is clear that their services were terminated or that they withdrew their services from the accused prior to the trial that was due to commence on 17 October 2016 and that Mr Abbas commenced acting for the accused about two weeks prior to the 17 October 2016 and that he retained Mr Roff of counsel. Mr Roff continued to represent the accused until his services were determined by the accused on the morning of 28 June 2017.
Yesterday afternoon before 1pm, I stood the matter down to 2pm to enable the accused to attend upon Legal Aid to see if he could obtain fresh representation. At 2.10pm the accused told me that he had gone to Legal Aid at level 4 of this building but there was no-one there to assist him at 12.45pm. He also said that he went to the Law Society but that appears to have been in order to make a complaint against, I assume from what the accused said, Mr Roff, but, if that be the case, the complaint should have been delivered to the Bar Association. The accused also tell me that he went to the Legal Aid office and spoke to a lady he identified as Sarah in the Grants Division of the Legal Aid office and that she had asked him to send her a detailed email on an urgent basis saying what had happened to him and marking it to her attention. At 2.17pm I sent the accused outside the courtroom in order for him to send an email he told me that he had already composed about ten lines of the email. After waiting 13 minutes I called him back into Court and asked him how long it would be before the email would be completed. He told me, "max" meaning at most until 3pm.
However, after hearing further arguments proposed by the accused for adjourning the matter I called the jury back and told the jury that there had been a complication and that the jury should return not on the following day, today, but tomorrow 30 June 2017 in the hope that the trial could start then. Eventually at 3.08pm I adjourned for the day giving the accused time to complete his email to Legal Aid and to send it and I asked that the parties return before me this morning in order to report on developments.
It then transpired that the accused did not send an email to Legal Aid until a few minutes before coming into Court at 10am this morning. The accused told me that when he walked outside the courtroom yesterday he finished his email but did not send it then. Instead he spoke to Mr Abbas to try to restore his relationship with him. According to the accused Mr Abbas told him that he needed to speak to Mr Roff. The accused then said that he spoke to Mr Abbas again this morning and that Mr Abbas was not prepared to come back to act for him at the trial and that he then sent the email to Legal Aid.
There was then more argument advanced and evidence tendered by the Crown somewhat piecemeal but that was because of repeated applications by the accused. The accused has appealed to every contingency which has befallen him and to which he could advert in his submissions to me.
I have outlined eight broad areas. They are these:
1. His lawyers did not choose to run his defence in the way he wanted it conducted. That argument is inconsistent with the fact that the accused retains confidence in Mr Abbas, the solicitor upon whom it would fall to take the necessary evidentiary steps to prepare the case and who had to agree with Mr Roff of counsel as to the way in which the case would be conducted.
2. Counsel did not accept his instructions to challenge peremptorily first the last juror empanelled but later on one of the earliest jurors to be empanelled. I was present and observed both the empanelment and there did not appear to be any dispute between the accused and Mr Roff as the jury was being empanelled, Mr Roff asking permission to assist the accused in the empanelment process and the accused did not reject that assistance. This ground is purely opportunistic.
3. Mr Abbas and Mr Roff had not adequately prepared the case that the accused wished to put before the jury. That ground again is inconsistent with the confidence which the accused appears still to have in Mr Abbas.
4. The accused wants to plead guilty to something but cannot reach any agreement with the Crown and therefore he needs legal advice. He maintains that position despite rejecting the Crown's initial plea bargain to which reference is made in the email which I quoted earlier and despite negotiations clearly conducted on Monday and Tuesday of this week when it appeared that counsel were extremely optimistic about a shortening of the matter but it appears that the accused became dissatisfied with the advice that had been given to him. In those circumstances any suggestion of a further plea bargain would appear to be an otiose, that is useless, exercise because the Crown was prepared to negotiate but the accused was clearly not prepared to accept the Crown's offer and appears to have rejected advice given to him by his lawyers in that regard.
5. The accused said that there was a need to obtain a report from a recently retained psychiatrist who is to treat him and for that psychiatrist to provide an opinion about the accused's mental health. Some medical evidence has been put before me by the Crown. It is medical evidence obtained for the use of the accused by Mr James Paytn of Phillip Ryan Solicitors who were acting for the accused at the time. Such a medical opinion could only be relevant to a defence of insanity or as to a question of accused's fitness to plead. The following points should be noted:
1. it has never been suggested by any of the lawyers who have acted for the accused in either the Local Court or the District Court who would have had extensive dealings with him that he is unfit to plead nor was it ever suggested by any lawyer that he had a defence of insanity available to him;
2. furthermore, the suggestion of insanity is quite inconsistent with the history obtained by Dr O'Dea, a specialist psychiatrist, the doctor retained by Mr Paytn; Dr O'Dea first interviewed the accused at Parklea Correctional Centre on 22 February 2015 for approximately two hours, and then interviewed him again at the Long Bay Correctional Centre on 18 June 2015 for approximately one hour;
3. Dr O'Dea records the accused's forensic history and also his psychiatric history and quotes expressions by doctors who had previously interviewed the accused; from [45] and [46] of Dr O'Dea's primary report it is clear that the accused was charged with certain offences on 2 April 2014 and another offence on 1 August 2014. They were disposed of in the Local Court pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990;
4. [47] of Dr O'Dea's primary report is this:
"I understand that in December 2014 these charges were to be dealt with via a further s 32 disposal, with conditions that Mr Nour to engage in community psychiatric treatment with Dr Attia‑Soliman. He told me that after 3 December 2014, he had returned for review by Dr Attia‑Soliman, at which time he told me he learnt that Dr Attia‑Soliman was not qualified as a Fellow of the Australian and New Zealand College of Psychiatrists, '...she recommended me to a proper psychiatrist in Auburn...I saw her once...I kept up the medications...and I was not taking drugs...since 3 December [14]...'"
1. it is clear from [36] of Dr O'Dea's primary report that the Dr Attia-Soliman had prescribed to the accused both antipsychotic and antidepressant medication. In other words, since 3 December 2014, the accused has been treated with both antipsychotic and antidepressant medication and was not taking any illicit substances and therefore, with his psychiatric condition, for which there are number of differential diagnoses, ought to have been under control. One of those diagnoses is schizophrenia;
2. immediately after [47] of Dr O'Dea's report, which I have just quoted, are the allegations currently levelled against the accused. After setting out what they were, Dr O'Dea said this, "Mr Nour denied all of these allegations". There is no suggestion in his report, that the accused was insane on 20 December 2014. Indeed, on the history given to Dr O'Dea, he would have been medication for the most serious of the differential diagnoses, schizophrenia; and
3. furthermore, the suggestion that the accused may be unfit to plead, is completely inconsistent with what I have observed in this courtroom over the last three days. In my view, nothing would be gained by obtaining an up‑to‑date report from the accused's new treating psychiatrist. Any opinion which he or she might express, would be subject to the truthfulness and accuracy of the history and, opinions made ex post facto, are often unreliable, especially where, as here, the events in question happened two and a half years ago. The opinion of such a medical practitioner might be highly relevant at sentence but the accused is yet to be found guilty and the question of sentence does not arise.
1. After the question of the accused's mental health was raised today, the accused started to complain that the current proceedings against him were oppressive, considering his mental health and would be oppressive unless he were represented. However, this submission by the accused, appears to me to have been completely opportunistic. It arose only after the Crown tendered Dr O'Dea's reports and there is nothing in what I have heard, to suggest that the accused does not understand what is going on.
2. The whole of the adjournment process has, in my view, been characterised by filibustering, by the process of trying to string out the application itself. For example, the accused could have sent his email, requesting a fresh grant of Legal Aid, to the Legal Aid Commission by 3.40pm yesterday. At 2.30, he told me that he could get it sent by 3 o'clock. At 3.08, yesterday, he could have spent an extra half hour, and therefore he could have sent the email by 3.40. Nevertheless, he did not do so until 10am this morning. He keeps mentioning his discussions with Mr Abbas and his willingness to have Mr Abbas act for him but Mr Abbas, in person, made it clear to me yesterday, that he would not be representing the accused at trial and the accused told me as much again, this morning. This process of filibustering has been highlighted by the accused's constantly raising new grounds in support of his application whenever he can think of one, or whenever a new subject arises.
3. The accused's constant attempts or protestations that he would like to retain Mr Abbas, are of no utility whatever, as Mr Abbas made it clear, he would not act for the accused unless Mr Roff was also retained and, as Mr Abbas made it clear that it was unlikely that the Legal Aid Commission would make a further grant of legal aid to the accused. That is clearly Mr Abbas' opinion. That is an opinion based on his experience as a lawyer and not the unfounded expectation held by the accused.
This Court is acutely aware that an unrepresented litigant will lengthen the trial process and make the trial process more difficult. From a judge's point of view, to run a trial with counsel acting for an accused, is much to be preferred than an accused acting in person. However, as I mentioned at the commencement of these reasons, I am required to act not only in the interests of the accused but also in the interests of justice.
It is now two and a half years since the alleged crimes are said to have been committed. It is now 18 months since the accused was committed for trial. One trial has already been vacated on the accused's application, a trial which was listed for hearing for two or three weeks. A longer estimate was then provided but after counsel discussed the matter with the Chief Judge, the trial length was reduced to two to three weeks. I had been told repeatedly, until Mr Roff's retainer was determined, that the case would take three weeks and the jury has also been advised to the same effect. If the matter be adjourned again, necessarily the jury must be discharged and it would be approximately a year for a fresh trial date to be fixed, that is, despite valiant attempts being made by the Court to reduce the time between fixing a day for trial and the trial itself, the present case would not be given priority because the accused is not in custody and although more judges have been appointed by the Crown, trials cannot often be heard because of a lack of courtrooms.
Despite the nature of the charges made against the accused, the current proceedings could in short be described as allegations of serious domestic violence. The complainant is an essential Crown witness. She, however, is not the only witness. There is some objective corroboration for the complainant's evidence in DNA evidence and other circumstantial evidence. However, whether the crimes are found by the jury to have been committed or not, will largely depend on whether the jury accepts the evidence of the complainant. The complainant has had to wait two and a half years already, to have her story heard by a jury. If the matter be adjourned again, she will have to wait three and a half years to have her story heard by a jury.
The lapse of time itself is critical in any court case. The sooner a case is brought on for hearing the better, because the better will be the memories of all the witnesses involved. To delay a case of this nature for another year, is not in the interest of the Crown. It is not in the interest of the State and is not in the interest of the complainant, and indeed, the other witnesses who might be called, not only in the Crown case but in the defence case.
At no time was the case said to be unready, until the accused determined the retainer of the lawyers appointed by Legal Aid. Having been assured that the matter was ready by lawyers, with a background in criminal litigation, I accept the case is ready, despite what the accused has said from the dock. The accused is the author of his own predicament. He has determined the retainer of his lawyers. He might not be happy with the advice that he has been given by his lawyers but that does not mean that they are incapable of adequately presenting the defence case.
The accused makes certain allegations about Mr Roff of counsel from the dock. As I pointed out to him when the adjournment application commenced, what he says from the dock is not evidence and I do not accept the allegations against counsel, made so opportunistically from the dock, especially an allegation that the learned counsel assaulted the accused.
This case does have a history of the accused either terminating the retainer of his lawyers, or lawyers withdrawing from acting for him, and both from what the accused himself says, there appears to be a desire to again avoid the trial coming on. Although the accused only asked for an adjournment for a day or two further, or until next Tuesday, again this appears to be opportunistic because he had not used time provided to him well, and he has heard that I am not available next Wednesday, Thursday, Friday, so the granting of an adjournment to him until next Tuesday, would mean the trial could not recommence until Monday week, and that is completely inappropriate where the jury has been empanelled. We cannot keep the jury waiting forever.
I also bear in mind, the nature of the crimes alleged. This is not a complex case. This is not a case where there are a large number of elements to the offence or where there is any need for any detailed consideration of factual issues which might include accounting issues, medical issues or any questions such as identification, or any complex legal issues. I am confident that, from what I have heard from the accused himself, that he can understand the issues and can deal with the trial process. The application for a further adjournment is, accordingly, refused.
[2]
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Decision last updated: 19 June 2018