Before the court is a notice of motion filed on 8 April 2016 on behalf of the accused McNamara seeking the following orders:
1. that the current trial be adjourned until 22 April 2016 at 10am; and in the alternative:
2. that the accused be tried separately; and in the alternative:
3. that the jury be discharged.
For reasons to which I will come, the orders which were ultimately sought differed in some respects from the terms in which the motion was pleaded. In addition, by the time the hearing of the motion had concluded, there was a fourth alternative order sought, namely that the proceedings be adjourned until Monday of next week, 11 April 2016.
All of the orders sought were opposed by both the Crown and by counsel for the accused Rogerson.
The motion was supported by an affidavit of Ali Abbas, solicitor, of 7 April 2016. Mr Abbas was not cross-examined on that affidavit and no objection was taken to it. However in the course of submissions in reply, Mr Waterstreet (who then appeared for McNamara) sought and was granted leave to call further evidence from Mr Abbas in order to, as it were, update the Court as to the efforts which had been made to engage counsel to appear for McNamara in the trial.
One of the matters to which Mr Abbas referred in the course of giving that evidence was that earlier today he had made contact with the chambers of Mr Wendler of counsel in an effort to ascertain his availability to appear for McNamara in his trial. Mr Wendler could not take Mr Abbas' call at the time as he was returning to Sydney from regional NSW.
When I resumed at 3.15 this afternoon for the purposes of delivering an ex tempore judgment on the motion, Mr Wendler announced his appearance on behalf of the accused McNamara on the motion. Mr Wendler did not indicate that he was available to appear in the trial.
Mr Abbas also made reference to making inquiries over the luncheon adjournment today in relation to the availability of counsel to assume the conduct of McNamara's case. Those inquiries remained unanswered at the time that he gave evidence. They included an enquiry apparently made to a Mr Lange, Barrister. As matters presently stand, no counsel is available to appear for McNamara in the trial.
It is necessary for me to detail, as briefly as I can, the circumstances which resulted in the motion being brought.
The joint trial of the two accused commenced before myself and a jury of (then) 15 persons on 1 February 2016. At the time of the commencement of the trial, its estimated duration was three months. Some weeks ago it became apparent to me that the estimate was likely to be exceeded, and exceeded to a substantial degree. Having raised the matter with counsel, I formed the view that an appropriate revised estimate of the trial at that stage was four months. I informed the jury accordingly and indicated to them that I did not now expect the trial to be completed until about mid-May.
By Friday 1 April 2016, the trial had reached a point where the Crown case was almost completed. In the days leading up to 1 April I had discussed with counsel the progress of the trial and, in particular, when it was likely that the Crown case would close. I did so, at least in part, for the purposes of appraising the jury of the progress which was being made at that time.
The general consensus (as at 1 April 2016) was that the Crown case would close at some stage early on the morning of the following Monday, 4 April. Ms Shead of counsel, who then appeared for McNamara, had previously indicated to me that she had experienced some difficulties in being able to arrange conferences with her client over a weekend at the custodial facility at which he was housed. For that reason, she asked that at the anticipated close of the Crown case on 4 April she be given, in effect, the balance of that day to confer with her client prior to his case being commenced on the following day, Tuesday 5 April.
I indicated to Ms Shead that I would be prepared to take that course and, with her consent, I informed the jury on the afternoon of 1 April 2016 of the progress that had been made and the point which had been reached. In particular, I informed the jury that in all likelihood the Crown case would close on the following Monday and that the case for the accused McNamara would commence on the following day, with McNamara to give evidence.
On the afternoon of Sunday 3 April 2016, my Associate received an email from the then solicitor for McNamara, Mr Reslan. Mr Reslan advised that a "complex ethical issue" had arisen and that despite his best efforts, arrangements could not be made for a conference to take place with McNamara and counsel on that day for the purposes of discussing the issue. He indicated that when the proceedings resumed before me at 9.30am on 4 April an indulgence would be sought for approximately one hour so to allow he and Ms Shead to confer with McNamara. That position was confirmed by Ms Shead when she appeared before me on that day.
Upon the resumption of the proceedings at about 10.30am on 4 April 2016, Ms Shead said:
"My instructions have been withdrawn and in the circumstances of this case I seek leave to withdraw from the trial".
No further information was provided to me as to the circumstances which led to that position being reached.
At this stage it is necessary for me to make some brief observations regarding those persons who were retained by McNamara for the purposes of the trial. Ms Shead appeared for McNamara as counsel. Ms Shead is a Deputy Senior Public Defender. She was assisted by Mr Devine. Mr Devine is a solicitor employed by Legal Aid New South Wales ("Legal Aid"). However, my understanding was that Mr Reslan was in fact McNamara's solicitor, in the sense that the matter had been assigned to Mr Reslan's firm by Legal Aid.
When Ms Shead made her application for leave to withdraw from the proceedings she made it plain that such application extended to herself and to Mr Devine only. For reasons which I must say appeared somewhat obscure, her application did not extend to Mr Reslan. After I had given Ms Shead and Mr Devine leave to withdraw, Mr Reslan appeared before me and made an application that the matter be adjourned so as to allow him time to ascertain the availability of alternative counsel.
When I asked Mr Reslan whether he continued to act for McNamara, he responded by saying that he did "at this stage". I then brought the jury into court and, with the consent of the Crown, Mr Reslan and Mr Thomas I informed them that an issue had arisen in relation to McNamara's representation through which I was endeavouring to work. What I told the jury would not have come as a complete surprise given Ms Shead's sudden absence from the Bar table. I indicated to the jury that I would continue efforts to resolve the issue and asked them to come back on Thursday 7 April 2016. I expressed some hope the matter might be resolved by that time.
Having allowed the jury to depart for the day, I stood the matter down to allow Mr Reslan the opportunity firstly, to clarify and resolve whether he was to continue to act for McNamara and secondly (in the event that he did) to ascertain the availability of alternative counsel. When the proceedings resumed later that day, Mr Reslan told me that his instructions had also been withdrawn. He sought and was granted leave to withdraw from the proceedings.
McNamara was then left in a position where he was unrepresented. The transcript of the proceedings on 4 April (commencing at T2898 L12) records the following exchange with myself:
HIS HONOUR: Perhaps I should hear from Mr McNamara.
ACCUSED MCNAMARA: My position is that I would desire representation.
HIS HONOUR: You had representation, Mr McNamara.
ACCUSED MCNAMARA: Yes, I did. I would like to apologise to the Court.
HIS HONOUR: Let's get on with it. You say you would like representation. I merely make the observation that you had it and you chose to withdraw it. What else do you wish to say at the moment?
ACCUSED MCNAMARA: I chose to withdraw on the basis of legal advice, not of my own free will. It was on the basis of legal advice that I chose to withdraw. It was the only choice I had. I am not a lawyer, and I took the advice of my lawyers. I have been hamstrung since May last year by being in solitary confinement.
At that stage I interjected and restrained McNamara, as I put it at the time, from making speeches. I also observed that he had not been "hamstrung" in the last ten weeks, having had the benefit of highly competent and professional representation by a senior public defender. That particular observation was one with which McNamara expressly agreed. When I asked him whether or not he had any application to make, he informed me that he wished to adjourn the proceedings for the purpose of attempting to obtain new legal representation. In making that application he informed me that members of his family had already commenced to make enquiries in that regard. Having heard from the Crown and Mr Thomas, I ordered that the matter be adjourned until 7 April for the purposes of giving McNamara the opportunity to ascertain the availability of an alternative legal representative. I also indicated to the parties that I would write to Mr Doumit from Legal Aid, informing him in general terms of the position which had arisen and asking for such assistance as he could provide to the Court.
I will return in due course to the statements made by the accused which are set out at [20] above. However it is appropriate at this stage that I make reference to part of the contents of the affidavit of Mr Abbas that was filed in support of the current motion. That affidavit states (at [38]-[39]) as follows:
"38. Without any legal advice and in answer to a question from his Honour Justice Bellew, namely, why the applicant withdrew his legal representation, the applicant informed the Court he withdrew his instructions from his then legal representatives because that was the advice he received from his then Counsel; specifically that Mr McNamara withdraw his instructions from her and the instructing solicitor (emphasis added).
39. The applicant does not, to the extent he answered the question posed by the Court, intend to waive legal professional privilege."
It will be evident from the extract from the transcript at [20] above that to the extent that Mr Abbas asserted (at [38]) that I asked McNamara why he "withdrew his legal representation", the affidavit is grossly misleading. At no stage did I ask any such question of McNamara. The affidavit seriously misrepresents what in fact occurred.
When the matter resumed before me on 7 April 2016 Mr Abbas appeared for McNamara. He told me that he had spoken to Mr Smith SC, who had indicated that he wished the matter to be adjourned until Monday 11 April. The transcript will reflect that when I asked Mr Abbas the purpose of the matter being adjourned until that day, his responses were somewhat nebulous. They amounted, in effect, to foreshadowing the possibility that there may be an application that the jury be discharged, or that the trial be further adjourned. Mr Abbas was unable to inform me which application would actually be made on that day. In terms of a possible application to adjourn the trial, I enquired of Mr Abbas as to the length of any proposed adjournment. He responded by saying that this was a matter about which he "couldn't comment".
It was apparent that Mr Abbas was effectively making an application to adjourn the matter to another day, at which time it was intended to make another application. Mr Abbas was unable to tell me what the ultimate application was likely to be. The unsatisfactory nature of that position needs no further comment. I ultimately made orders requiring that a notice of motion be filed, setting out in precise terms the orders sought, together with an affidavit in support. I further ordered that the matter be brought back before me today in order for any such motion to be heard.
I have already made reference to the terms of the notice of motion. It is appropriate that I make some brief reference to the contents of the affidavit sworn by Mr Abbas in support of it.
It seems that Mr Abbas was first approached at about midday on Tuesday 5 April 2016 by McNamara's daughter, enquiring as to his availability. That was about 24 hours after the proceedings had been adjourned on the previous day. It seems that during the ensuing two days Mr Abbas had conversations with McNamara's daughter. He made one attempt, it seems, to contact McNamara by telephone but was told by a Corrective Services officer that this was not possible. He did not, at any time, make any attempt to attend on McNamara personally. Indeed, he met McNamara for the first time at about 9.15am on 7 April 2016, a short time before the matter was due back before the Court.
Mr Abbas also had contact with Mr Smith SC. McNamara apparently expressed some desire that Mr Smith be retained to appear for him in the trial. However on the evidence before me, it seems that Mr Smith is unlikely to be available. Indeed, Mr Abbas said in his affidavit that in the event that the trial was not adjourned, neither he nor Mr Smith would be available to represent the accused.
The affidavit also deals with other matters which occurred after the proceedings were before the Court on 7 April. It seems that on the afternoon of that day, Mr Abbas was contacted by Mr Waterstreet of counsel who advised him that the accused's daughter had contacted him (i.e. Mr Waterstreet) and advised him of the outcome of the proceedings earlier that day. It seems that Mr Waterstreet and Mr Abbas spoke with McNamara later on that same day.
It is of some significance that Mr Abbas' affidavit says (at [32]):
"Mr Waterstreet made it clear that he would make every effort to be available for the trial if Legal Aid were to approve him to be briefed in the matter and if the presiding Judge grants him leave for the trial to be adjourned so that Mr Waterstreet is able to rearrange his diary however this would require a two week adjournment to allow Mr Waterstreet and I to get up to date in the proceedings and be in a position to cross-examine the OIC (who is currently giving evidence), begin the defence case and address the jury."
Having said (at [32]) that a two week adjournment would be required to allow Mr Waterstreet to read the material and bring himself up to date with the proceedings, Mr Abbas then said (at [34]):
"I have not been involved in the proceedings and would require at least two weeks (if not more) to peruse the material (including the brief and the transcripts) to familiarise myself with the matter in order to prepare adequately for it in my proposed representation of the applicant."
Mr Abbas confirmed that McNamara's instructions were to proceed with the trial if suitable counsel was found, and sufficient time was given to such counsel to acquaint himself or herself with the material. He went on to say (at [42]) that in the event that that did not occur, McNamara would "consider" an application to separate his trial from that of the co-accused Rogerson. As I have indicated, an order that the trials be separate is one of the alternative orders which is now sought in the motion. Finally, Mr Abbas said (at [43]) that in the event that I was not minded to grant orders 1 or 2, he had instructions to make an application to discharge the jury.
In submissions made in support of the motion, Mr Waterstreet raised a number of matters. In summarising those submissions, I should deal at the outset with one particular matter, namely Mr Waterstreet's purported reliance upon s. 192 of the Evidence Act 1995 (NSW) ("the Act") which is in the following terms:
192 Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
Mr Waterstreet submitted that in determining the present application, it was necessary for me to have regard to the matters enumerated in s 192(2)(a) to (e). In my view, s 192 of the Act has no application whatsoever to the present application. The opening words of s. 192(1) make it clear that the section applies in circumstances where application is made under that Act for a court to give leave, permission or direction. The present is not an application for leave, permission or direction under the Act.
At the commencement of his submissions, Mr Waterstreet effectively sought to amend the notice of motion by adding the words "or for such shorter period as the Court may determine" to the terms of paragraph 1. That seemed, to me at least, to reflect an acceptance on the part of Mr Waterstreet that the court may not be prepared to grant an adjournment for the period which was sought in the motion. As I have already indicated, there appeared to be a further amendment sought in the course of submissions by adding an order that the proceedings be adjourned until Monday of next week. In these respects, the application is best described as something of a moveable feast.
Mr Waterstreet submitted that in all of the circumstances McNamara wished to have the benefit of counsel appearing for him at his trial. He submitted that McNamara was not in a position to equip himself to defend the matter on his own and submitted that justice would not be done if he was, in effect, forced to appear for himself. Mr Waterstreet submitted that I should treat, as evidence, what McNamara had said to me (at [20] above) regarding the reasons he withdraw his instructions to counsel. He submitted that in all of the circumstances, to require the trial to proceed when McNamara was unrepresented would be unfair, and would result in the trial being significantly and unnecessarily extended.
Mr Waterstreet submitted that there "would be" members of the Bar who were able to accept the brief. However, he appeared to accept that no member of the New South Wales Bar had been identified as being able to appear for McNamara at any time in the foreseeable future. He indicated that whilst he was not (to use his terminology) "putting himself forward" to appear in the matter, he would be prepared to do so if no other counsel could be found. On the basis of Mr Abbas' affidavit, Mr Waterstreet's availability would appear to depend upon successfully re-arranging his existing commitments.
The Crown opposed all of the orders sought. In doing so, the Crown highlighted the fact that there was no certainty at all that any counsel would become available to assume the conduct of the matter. The Crown made specific reference to Mr Abbas' affidavit (at [32]). The Crown submitted that I should conclude, on the basis of that paragraph, that not even Mr Waterstreet himself was in a position to assume the conduct of McNamara's case. .
The Crown also drew my attention to Mr Abbas' affidavit at [38] and [39], the terms of which I have already outlined. The Crown highlighted the fact that no sworn evidence had been given by McNamara as to the circumstances in which he had withdrawn his instructions from his previous counsel, Ms Shead. The Crown submitted that in all of the circumstances McNamara had chosen to claim privilege in respect of his discussions with Ms Shead and that in those circumstances I could not reach any conclusion as to the cause of the position in which he now found himself.
In respect of the application for a separate trial, the Crown relied upon the fact that this was a matter about which I had already delivered given judgment. It was submitted that nothing had occurred which would serve to alter the views I expressed on that occasion, namely that in all of the circumstances the accused ought be tried together.
At one point the Crown invited me to find that on the whole of the evidence, the present circumstances had arisen as a consequence of a deliberate manipulation of the criminal justice system by McNamara. The transcript will reflect that the Crown ultimately accepted that to reach such a conclusion would involve considerable speculation. As I understood it, the submission was effectively withdrawn. Whether it was withdrawn or not, I make it clear (as I did in the course of submissions) that the evidence does not permit me to make any such finding.
As to the application that the jury should be discharged, the Crown highlighted, amongst other things, the obvious circumstance that the trial was now in its tenth week, and that considerable public money had been expended.
Mr Thomas generally supported the Crown's position. He highlighted considerations of procedural fairness, and effectively submitted that the steps which had been taken thus far to allow McNamara to retain alternative counsel had discharged whatever obligations of procedural fairness fell upon the Court.
He made reference to various parts of the affidavit of Mr Abbas in support of a submission that Mr Abbas had approached the matter in a way which was less than diligent. He also submitted that what Mr Abbas had told me on 7 April about the potential availability of Mr Smith did not reflect the true position. He submitted that if any of the orders sought were made there was a great risk that the integrity of the criminal justice system generally, and the integrity of the trial specifically, would be seriously compromised.
Mr Thomas also submitted McNamara was far from an unsophisticated person. He pointed, in particular, to the evidence that McNamara was an author, and a former police officer who was familiar with court procedures. He submitted that McNamara had been given the benefit of the entirety of the brief of evidence being uploaded onto a computer such that it was "at his fingertips". He submitted that in these circumstances, McNamara would be at no real disadvantage in the event that he was not represented.
Finally, Mr Thomas submitted that by way of contrast, and unlike McNamara, Rogerson was not in receipt of a grant from Legal Aid. He explained that Rogerson was, pursuant to a particular arrangement, privately funding his trial. Although it seems that this arrangement is such that Rogerson is not paying Mr Thomas on a regular basis at the present time, I accept that he will ultimately be personally responsible for the payment of the fees of both Mr Thomas and his instructing solicitor.
I turn to consider the principles which are applicable to the determination of the motion.
In Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, the majority (Mason CJ and McHugh J) observed (at [7]; 299-300) that the right of an accused person to receive a fair trial according to law is a fundamental element of the criminal justice system, but that there had been no judicial attempt to exhaustively list the attributes of a fair trial. Their Honours went on to consider the provisions of various international instruments, and declarations of rights in other countries, which had attempted to define some of those attributes.
Their Honours ultimately concluded that the right of an accused to a fair trial is recognised in this country and that, depending on all of the circumstances of the particular case, a lack of representation may mean that an accused is denied that right. Their Honours also observed that such a conclusion was inextricably linked to the facts of the case and the background of the accused.
Significantly, their Honours said (at [31]; 311):
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 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.
Their Honours then continued (at [40]; 315):
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 appellant court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.
As will be evident from that last passage of their Honours' judgment, the principle which was articulated applies to an accused charged with a serious offence who through no fault on his or her part is unable to obtain legal representation. The issue of fault is one to which I will return.
In a subsequent decision of Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) had cause to return to the observations made in Dietrich to which I have referred and said (at [21]; 183-184):
"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 the accused in all of the circumstances; and excluded situations in which it could be fairly said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.'"
These principles were considered by the Court of Criminal Appeal in R v Gilfillan [2003] NSWCCA 102. In that case Buddin J made reference (at [4]) to the strong public interest in ensuring, if at all possible, that a criminal trial which was well advanced proceeded to verdict. His Honour observed that accordingly, an adjournment would not readily be granted in such circumstances. However, he emphasised (at [5]) the desirability that an accused person be legally represented at a trial, particularly if he or she is facing very serious charges. His Honour also referred to the decision in BK v The Queen [2000] NSWCCA 4; (2000) 110 A Crim R 298 where Carruthers AJ emphasised (at [33]; 309) the need for a trial judge to be alive to the possibility that an accused person may withdraw instructions from counsel purely in order to obtain an adjournment.
In the same case Smart AJ made a number of observations in relation to the approach to be taken in circumstances such as the present. Having referred to the decisions in Craig and Dietrich, his Honour said (commencing at [72]:
"[72] Where, as here, a trial has been proceeding for a number of days, and the accused has ceased to have legal representation including where he has withdrawn instructions the matters taken into account may be somewhat broader. They would include the interests of the witnesses, their health, if ill or aged, and their availability.
[73] Unreasonable dispensation of legal representation by an accused during a trial would amount to fault on the part of an accused and usually in such circumstances a trial would not be terminated. Whether an adjournment would be granted would depend on all of the circumstances, for example, fresh legal representation may be able to be obtained within a couple of days, thus enabling the trial to continue.
[74] In applying Craig this Court in DPP v Thomas James Allan (unrep 1 November 1995 per Allen J) observed that the touchstone of the common law was reasonableness and that that applied to the concept of fault.
[75] Circumstances may exist where it is reasonable for an accused to withdraw his instructions even at an advanced stage of the trial. For example, his counsel may be conducting his case in an obviously incompetent fashion or incorrectly disregarding instructions which were not improper or for personal reasons may not feel able to cross-examine a witness adequately. This list is not exhaustive."
In concluding that error had been established in that particular case, his Honour found that the trial judge had failed to consider the issue of fault or, in other words, had failed to consider whether it was reasonable for the accused to withdraw his instructions.
It is against the background of all of those principles that I come to determine the present application.
It is clear from the authorities to which I have referred that one of the matters I am required to take into account is the issue of fault, i.e. whether it was reasonable for McNamara to withdraw his instructions from Ms Shead. The only material before the Court which touches on that issue is the statement made by Ms Shead and the statements made by McNamara. Mr Waterstreet submitted that I should regard the statements made by Mr McNamara as evidence. They are not evidence. They are unsworn, untested and unsubstantiated assertions. They are deserving of no weight in those circumstances.
On the present application, McNamara bears the onus of proof: BK at [12]; [24]; 305; 308. He has chosen not to give evidence on oath about the circumstances in which he withdrew his instructions from Ms Shead. That is his right. I am therefore left to determine the present application on the remaining evidence which is before me.
Speaking purely hypothetically, it may be one thing for an accused to assert that it is unfair that he be forced to represent himself when the circumstances in which his instructions were withdrawn from counsel were no fault of his own. It will be quite another for an accused to assert unfairness in circumstances where the decision to withdraw instructions was made in a calculated fashion, or without proper cause. The evidence in the present case does not permit me to make findings as to the circumstances in which the accused's instructions were withdrawn. I am not able to determine, in the sense referred to in the authorities, that the present circumstances are not the fault of the accused. Equally, I am not in a position to determine that they are his fault. I must therefore resolve questions of suggested unfairness based on the evidence as it stands but in circumstances where, as I have said, McNamara bears the onus of proof.
I have already made reference to the amendments which were effectively made to the motion in the course of submissions. In my view, however one might look at it, there are a number of difficulties with any proposal that the proceedings be adjourned, irrespective of the period of adjournment sought.
The motion, as originally pleaded, sought a two week adjournment. It was suggested in argument that a period of one week should be allowed. No person has been identified at this stage as being able to appear for McNamara in one week (or for that matter in two weeks). Moreover, the suggestion that the adjournment could be limited to one week is fundamentally at odds with the affidavit evidence of Mr Abbas who asserted he would need at least two weeks, and possibly more, for the purpose of preparing the matter. How it could be suggested, in all of those circumstances, that there would be any utility whatsoever in adjourning these proceedings for one week (or for that matter two weeks) is not at all apparent. One asks, rhetorically, what would happen at the conclusion of such a period if it were to remain the case that no Barrister was identified as being available? The answer is that the matter would be no further advanced, but would have been further delayed.
The suggested "fall back" position, as I have indicated, was that Mr Waterstreet could somehow re-arrange his diary and appear in the trial. Once again, on the evidence before me, Mr Waterstreet would require a period of two weeks for that purpose. On the evidence, there is no certainty that even if he is given that time, he will be available. Moreover, and whilst ultimately it would obviously be a matter for Mr Waterstreet, I am compelled to observe that in the course of these proceedings last year Mr Game SC appeared on Mr Waterstreet's behalf (Mr Waterstreet having previously appeared for McNamara) and informed me he had advised Mr Waterstreet that he was bound to return the brief: R v Rogerson; R v McNamara (No 14) [2015] NSWSC 1157 at [10]. Mr Waterstreet's return of the brief saw the trial vacated. It is not immediately apparent to me how, in those circumstances, Mr Waterstreet could now accept the brief, although I again stress that that would ultimately be a matter for Mr Waterstreet and not me.
I accept that there have been inquiries made of a number of members of the Bar as to their availability to take over the trial. Those inquiries have met with no success. The proposal that the proceedings be adjourned for a week or two weeks in those circumstances, in my view, redolent with uncertainty. It serves no purpose whatsoever. The application for an adjournment should be refused.
The application for a separate trial has already been dealt with: R v Rogerson; R v McNamara (No 3) (2015) NSWSC 965. In that judgment I concluded that the circumstances of this case required that the two accused be tried together. Those circumstances have not changed. Nothing has been put before me today to cause me to revisit the issue. I remain of the view that in all of the circumstances, the accused should be tried together.
I turn to the application that the jury be discharged. The judgment of Smart AJ in Gilfillan recognised that in circumstances such as this, there may be a number of factors which impinge upon the exercise of the relevant discretion. His Honour referred, amongst other things, to a circumstance where a trial has been proceeding for a number of days. The present trial has been proceeding for a period of ten weeks. The Crown case is all but closed. The members of the jury have displayed an unwavering commitment to this trial. They have given up a significant portion of their lives in service to the community. While questions of public expense and convenience cannot be determinative, they are relevant. In the present case they weigh in favour of the trial proceeding, and very much against the jury being discharged.
I must also take into account the circumstances of the co-accused Rogerson. He is not, as I have said, in receipt of a grant of legal aid. He is, in the way in which Mr Thomas outlined, privately funding in this trial. He is entitled to have the trial against him proceed. In circumstances where a separate trial is not appropriate, the circumstances of Rogerson also weigh in favour of the matter proceeding. Wherever the fault may lie for the present situation, it does not lie at his feet.
For the reasons given, and in circumstances where he has chosen to adduce no evidence of the circumstances in which he withdrew his instructions from Ms Shead, McNamara's trial must proceed, notwithstanding that he will be unrepresented.
For all of those reasons, I make the following orders:
1. The notice of motion is dismissed.
2. The trial will proceed before the jury at 10am on Monday 11 April 2016.
[2]
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Decision last updated: 23 April 2018