On Friday 8 April 2016, I heard a notice of motion filed on behalf of the accused McNamara seeking orders for an adjournment of the trial, for a separation of the trial of each of the accused and for a discharge of the jury. For the reasons given on that occasion, I made an order dismissing the motion: R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405. The effect of that order was that the trial would resume this morning with McNamara being unrepresented. I noted in my reasons (at [6]) that when I returned to court for the purposes of giving that judgment Mr Wendler of counsel announced his appearance for McNamara, but only in respect of the motion. Up to that point Mr Waterstreet had appeared for McNamara.
When the proceedings resumed this morning, Mr Wendler again appeared. On this occasion he announced his appearance for Mr McNamara in the trial, instructed by Mr Abbas, solicitor. However, Mr Wendler's appearance this morning was, at least in a sense, conditional upon the trial being further adjourned so as to allow him to read the material and confer with McNamara. Mr Wendler explained that following his appearance before me last Friday on the motion, he had been retained to appear for McNamara in the trial. He said that he had conferred with Mr Abbas and had been provided with a copy of the transcript of the trial thus far. He explained he had commenced to read the transcript and had spent some further time on the weekend conferring with McNamara and Mr Abbas.
Against that background, Mr Wendler made an application for an adjournment of the trial. His primary application was that the trial be adjourned until Wednesday 20 April 2016. In the alternative, he sought that the trial be adjourned until Monday 18 April.
In short, Mr Wendler submitted that he would necessarily need time to read the transcript and associated material, and take instructions from McNamara.
In making the application and in advancing submissions in support of it, Mr Wendler expressly recognised that there were a number of competing considerations which impacted on the exercise of my discretion to adjourn the trial for a further period. He acknowledged, in particular, the respective positions of the Crown, Rogerson and the members of the jury. As to the members of the jury, Mr Wendler specifically recognised that they had already been absent from the court for one week.
At the same time Mr Wendler highlighted what, in his submission, was the preferable course of allowing McNamara to be legally represented. He submitted that were the trial to continue without McNamara having the benefit of representation there would be a significantly greater onus placed on a number of persons, including myself as the trial judge, to ensure that McNamara was given a fair trial. Mr Wendler also raised the possibility that McNamara might unwittingly say or do something before the jury when unrepresented which had the potential to lead to the jury being discharged.
The Crown did not oppose an adjournment but submitted that it should be for a shorter period than that sought. The Crown acknowledged that it was preferable, if at all possible, that McNamara be represented. At the same time, the Crown pointed out that if the application was granted in terms of either of the alternatives proffered by Mr Wendler, it would mean that by the time the trial resumed, a period of at least two weeks would have elapsed since the jury had heard any evidence.
Mr Thomas, on behalf of Rogerson, accepted that the determination of the application involved the balancing of the various competing interests to which Mr Wendler and the Crown had referred. As was the position with the Crown, Mr Thomas did not object to an adjournment for some period, although he certainly opposed any adjournment for the length of time sought by Mr Wendler.
All parties recognised that the determination of the present application involved balancing a number of competing interests. The jury has already been absent for a period of one week without hearing any evidence at all. Whilst I do not propose to detail, yet again, the recent history of these proceedings, the fact is that one week ago I allowed McNamara a period of time in which to attempt to engage alternative counsel. The affidavit in support of the notice of motion with which I dealt last Friday established that, following that adjournment, it was not until the following day that Mr Abbas, who now acts for Mr McNamara, was contacted.
In the context of the present case, 24 hours is a very long time. The fact that it took that amount of time for Mr Abbas to be contacted does not sit entirely comfortably with what I was previously told by McNamara, when granting the adjournment, about efforts which were supposedly being made at that time to secure alternative representation.
In the ensuing 48 hour period which elapsed before the matter came back before me on 7 April, Mr Abbas made some attempts to contact McNamara, and also made some attempt to contact members of the Bar for the purposes of determining whether or not anybody was available to appear in the matter. In my view, the efforts made by Mr Abbas in those respects were less than diligent. Remarkably, they did not include a single attempt to visit Mr McNamara in person, face-to-face, for the purposes of obtaining his instructions.
Moreover, even today no explanation has been advanced as to why Mr Abbas waited until 8 April (that being the day on which the previous motion was heard) to contact Mr Wendler in order to ascertain his availability. Had Mr Abbas shown greater diligence, and moved with greater alacrity, the present situation might not have arisen at all. It might well have been the case that had Mr Wendler been contacted earlier, he could have accepted the brief to appear in the matter long before now, and could have spent the greater part of last week doing what it is that he now seeks more time to do. Those aspects of the matter, in my view, are entirely unsatisfactory. They are certainly not the fault of Mr Wendler but they do not reflect well upon those others involved.
As against that, all parties agree that it would be preferable, from a number of points of view, if McNamara were represented. Contrary to the position with which I was faced last Friday (which, as I remarked at the time, was redolent with uncertainty) there is now a firm proposal that Mr Wendler appear in the trial. There is no impediment to that course from the point of view of Legal Aid New South Wales, nor is there any impediment to Mr Abbas remaining as the solicitor in the matter, notwithstanding the fact that he is apparently not a member of the relevant Legal Aid panel. Because of the fact that these proposals are in place, and because of the fact that, for all of the reasons which have been advanced, it is preferable that McNamara be represented, I have come to the conclusion that some adjournment should be granted to allow Mr Wendler some time to prepare. The question is for how long any such adjournment should be granted.
Relevant to that determination is the fact that there is little evidence remaining in the Crown case. There is some short further evidence to be led from the officer-in-charge, and some equally short evidence to be led from an analyst (who has already been called) in relation to telephone records and the like. Both witnesses have been cross-examined at length. Any remaining cross-examination will be limited, and thus short. I should also observe that although the evidence has been lengthy, the issues in the trial would appear to be relatively narrow.
It follows that this is not a case where Mr Wendler will be required to read a large number of statements and associated material for the purpose of preparing lengthy cross-examinations of a large number of witnesses. That has already been done. Necessarily, the immediate focus of Mr Wendler's attention will be McNamara's case, which will commence immediately upon the Crown case being closed.
Obviously, in order to conduct McNamara's case, Mr Wendler will need to be appraised of the case as a whole and will need an opportunity to obtain instructions. However, as I remarked in the course of submissions this morning, and given the diligence displayed by Ms Shead of counsel who had previously appeared for McNamara, I would be very surprised indeed if there was not contained within her brief (which I am told will be passed to Mr Wendler later today) comprehensive instructions, and an equally comprehensive proof of evidence by McNamara.
There are some discrete evidentiary issues which were discussed with counsel at the close of proceedings on Friday, 1 April and which must be resolved before the Crown case closes. Those matters do not lend themselves to lengthy arguments. In fact, I would be surprised if they could not be disposed of in their entirety within about an hour and a half of argument. At that point, the Crown case can resume and will close shortly thereafter.
In all of those circumstances, I am prepared to grant an adjournment of the trial to 10am on Thursday of this week. That will allow counsel a further three days to prepare. I propose to list the matter before me at 10am on Wednesday of this week at which time I will hear the remaining legal arguments. Once those matters are resolved I will resume with the jury on the following morning. I expect on that day that the Crown case will be closed. I also expect the case for the accused McNamara to commence immediately upon the closure of the Crown case.
For the purposes of facilitating Mr Wendler being able to obtain instructions, I request and recommend, in the strongest possible terms, that McNamara remain at court today for as long as is possible so that Mr Wendler and Mr Abbas can confer with him.
When the court reconvenes on Wednesday I will make the same recommendation for such balance of the day as might remain after any arguments are concluded.
I will have the entirety of the exhibits brought back to my chambers today. Mr Abbas can, if he wishes to do so, make arrangements with my Associate to inspect those at any time during business hours between now and Thursday of this week.
The final issue concerns the jury. I am told one of the members of the jury is absent today due to illness although I am told it is expected that she will return tomorrow. I propose to have the twelve remaining members of the jury come in to court, at which time I will explain to them what they have obviously already realised, namely that one of their number is not here. I will hear from counsel now as to what further information it is considered appropriate that the jury be given at this point concerning Mr Wendler's appearance for McNamara.
[2]
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Decision last updated: 15 June 2016