Solicitors:
James & Jaramillo Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2020/00043308
[2]
Judgment
The accused, Hector Enrique Valencia, is charged that, between 7 November 2020 and 14 November 2020, he did murder Kim McRae. He has pleaded not guilty. The trial was listed to commence on 21 November 2022.
The accused elected to be tried by judge alone. The Crown consented to that application. I made an order that the trial proceed as a judge alone trial on 14 October 2022. The proceedings came before me for a direction hearing on 20 September 2022 and 6 October 2022. On each occasion, the parties then appearing confirmed the trial was ready to proceed. The issue in the trial was then identified as excessive self-defence.
By email, dated 16 November 2022, at 3:00pm, the Court was notified that the accused had withdrawn his instructions from both his solicitor, Mr Ekstein, and barrister, Mr Dalton SC. The matter was listed urgently before me at 2:00pm, on 17 November 2022. Mr Dalton SC and Mr Ekstein appeared on an amicus basis. Also present by way of audio-visual link was Mr Robinson from the Legal Aid Grants Division.
Mr Jaramillo, solicitor, attended. On 10 November 2022, the accused contacted, or had arranged contact on his behalf with, Mr Jaramillo. On 14 November 2022, Mr Jaramillo conducted an audio-visual conference with the accused where the accused confirmed that he wanted new legal representation. At the mention, on 17 November 2022, I expressed my view that all reasonable efforts should be made to obtain alternative counsel. By Notice of Motion, filed on 18 November 2022, the accused applied to vacate the trial. On 21 November 2022, Mr Schaudin, briefed only on this application, moved on the Notice of Motion to vacate the trial.
The grounds for the application are as follows:
1. Firstly, Mr Jaramillo has been unsuccessful in securing alternative counsel to conduct the trial. The Public Defenders' Chambers have been contacted without success. Ms Moore, Junior Solicitor at James & Jaramillo Legal Pty Ltd, has been corresponding with 19 different chambers to obtain counsel for this matter without success. The details of those inquiries are set out in Ms Moore's affidavit evidence.
2. Secondly, and unsurprisingly, Mr Jaramillo deposes that he does not have the capacity to digest the 4795-page brief of evidence served on him in the few short days that he has had.
3. Thirdly, the Defence now wants to engage Professor Duflou, Forensic Pathologist, to provide a report that may be relevant to the issue of causation. Mr Jaramillo deposes that some of the material in the brief suggests that:
"The deceased was suffering from cardiac arrhythmias at the time of his death but was not engaged with western medical treatment, preferring the eastern/holistic approach. The medical records provided suggest that the deceased was suffering from atrial fibrillation dating back at least to October 2019. It is further noted that in the material that the deceased was not keen for anticoagulation or long-term anti-arrhythmias."
Professor Duflou has been contacted. He can provide a report four weeks after he receives the relevant material which includes the deceased's previous medical records.
[3]
The Crown's Position
The Crown neither opposes nor consents to the application. In respect of the Crown's position, I make two observations:
1. Firstly, the Crown also wants an opportunity to engage another Forensic Pathologist. It appears that the Pathologist initially engaged undertook the autopsy under supervision and, given the issue of causation was not previously raised, a further report will be required, this time from Dr Cala.
2. Secondly, the Crown has brought to my attention the case of MS v R [2017] NSWCCA 252 ("MS"), where the Court of Criminal Appeal emphasised the right of an accused to a fair trial and the disadvantages faced by an accused who is confronted with conducting his or her own defence.
[4]
Determination of the Application
I have expressed some concern about delaying the trial. The accused has been in custody since February 2020. The deceased's family and the community have an interest in securing some finality to the proceedings. There is a strong public interest that a criminal trial, once fixed for hearing, upon the basis that the parties are ready to proceed, does proceed. I am also conscious that a last-minute application to vacate a trial may have a likely adverse effect on witnesses in the trial. However, I have formed the view that the trial should be vacated. In making this determination, I have had regard to the decision in MS. The Court said, at [14] and [15]:
"[14] It is a fundamental requirement of the criminal justice system that an accused person receive a fair trial. If that has not happened, and the person has been convicted, a substantial miscarriage of justice will have occurred (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15]). In such circumstances, this Court's power under s 6 of the Criminal Appeal Act 1912 (NSW) to quash the person's convictions will be enlivened.
[15] An accused person may appear personally at trial and conduct his or her case (ss 36 and 37 of the Criminal Procedure Act). However, a person who takes this course, either by choice or of necessity, faces significant disadvantages, as described by Mason CJ and McHugh J in Dietrich v The Queen (1992) 177 CLR 292 at 302; [1992] HCA 57:
'An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown. The hallowed response that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a 'helping hand' to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems" (citations omitted).'"
The difficulty in proceeding with the accused unrepresented is compounded by the fact that this is a judge alone trial. In the decision of MS, the Court referred to the importance of a court eliminating or reducing the disadvantages faced by an accused who is self-represented. The Court said:
"[18] For example, in MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 the High Court held that where a real question had arisen concerning the voluntariness of the accused's confessions, the trial judge should have advised the unrepresented accused of his right to seek a voir dire to determine whether the confessions had been made voluntarily. Gibbs CJ and Wilson J stated that, where an accused is unrepresented, a trial judge's obligation is to give the accused "such information as is necessary to enable him to have a fair trial" (at 524).
[19] Mason J described the trial judge's obligations as follows (at 534):
'Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. Once an issue as to the voluntariness of a confession arises fairness to the accused suggests that he should be acquainted with his right to a voir dire hearing. If he is left in ignorance of it he loses a valuable opportunity of testing the admissibility of the evidence, an opportunity which is often availed of by counsel for the accused. A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'.'
[20] Brennan J spoke in similar terms (at 547):
'Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge's duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.'"
It would be difficult and, in my view, inappropriate for me, as the tribunal of fact, to advise the accused about issues or procedural matters in the trial. This is particularly so given that the issues in this trial may involve complex expert evidence relating to the issue of causation.
Accordingly, it is with some reluctance that I grant the application and vacate the trial. I will list this trial to commence before me on 6 February 2023.
[5]
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Decision last updated: 23 November 2022