R v Warwick

Supreme Court of NSW|2019-01-29|Before: Garling J

Notice of Motion

On Tuesday, 29 January 2019, the hundredth day of hearing in this trial, the lawyers for the Accused filed a Notice of Motion seeking two orders. The first order was that Mr Alan Conolly be given leave to withdraw as the solicitor for the Accused. The second order was that the trial be adjourned for a period of not less than twelve weeks.

Evidence in Support

In support of that Motion two affidavits were relied upon, being the affidavit of Ms Ramsay, a partner in the legal practice of A R Conolly & Co, of 25 January 2019 and a further affidavit of Ms Ramsay of 28 January 2019. On the following day, a third affidavit of Ms Ramsay, sworn 30 January 2019, was filed and relied upon. The affidavits dealt with a range of matters including, the conduct of the trial to date, observations as to the health of the Accused and matters relating to the Accused's custody and ability to access any legal documentation.
The affidavit of Ms Ramsay of 25 January 2019 informed the Court in the following terms: "1. Prior to and during December 2018 we advised the Court and the Crown that our firm is unable to continue to defend Mr Warwick, in the absence of funding. 2. On Tuesday, 29 January 2019 Alan Conolly will seek leave to withdraw from the proceedings. 3. We have continued to act for Mr Warwick on a limited basis since December 2018."

Termination of Retainer

In the course of submissions and after specific questioning by the Court, Mr Conolly revealed that at a meeting with the Accused on 28 January 2019, Ms Ramsay had informed the Accused that A R Conolly & Co had ceased to act for him in his defence of the charges on the Indictment with which this trial is concerned.
In response to specific questions, Mr Conolly informed the Court that, notwithstanding that himself and his firm had ceased to act in the substantive trial, he was nevertheless continuing to act pursuant to a limited pro bono retainer to argue for an adjournment of the trial in accordance with the second order in the Notice of Motion.
The Accused, in response to questions from the Court, confirmed that he understood that Mr Conolly had terminated the retainer to act in his defence in the substantive trial. The Accused also confirmed to the Court that Mr Conolly held limited instructions to advance submissions in support of a twelve week adjournment.

Order 1

After a number of matters were raised with Mr Conolly with respect to Order 1 in the Notice of Motion, Mr Conolly informed the Court that he did not seek to press the order for a grant of leave from the Court to withdraw from the proceedings.
It seems to me that had the claim for such an order been advanced, it would have been necessary to have heard separately from the Accused (or someone on his behalf other than Mr Conolly) because their interests may not have coincided. There are also other matters to be considered, such as due compliance with professional obligations, including those under r 13 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 upon which the Court was not adequately informed, so as to be able to deliver the result of a reasoned consideration of such application.
In all of those circumstances, there is no need for the Court to further consider the application by Mr Conolly that he have leave to withdraw from the proceedings. However, the fact remains, Mr Conolly and his firm terminated their retainer with the Accused the day before the resumption of the hearing of evidence in the trial (after 99 days of hearing). As such, they are not acting for him in the substantive trial and the Accused, accordingly, is without legal representation in the middle of his trial.

Order 2

In that context, it is necessary to turn now to the second order in the Notice of Motion, that is, an adjournment of the hearing of the trial for a period of at least twelve weeks.
I should say at the outset, the Crown accepts that, by reason of the fact that the Accused is no longer represented by Mr Conolly and has not yet appointed any other legal representative, it is necessary for the trial to be adjourned for a period. An adjournment can enable the Accused to be in a position, firstly, to consider the circumstances; secondly, to determine and inform himself about the course which he may take to continue his defence of the Crown's indictment; and, thirdly, to prepare to conduct the trial himself.
The parties are at odds as to the length of that adjournment. Accordingly, this judgment deals principally with that disputed question.
In support of the longer period of adjournment, four matters were initially put to the Court by Mr Conolly.
The first was that, to the lay observation of Ms Ramsay and Mr Conolly, the Accused appeared to be beset by a depressive disorder which had not been professionally diagnosed or treated. Mr Conolly indicated from his perspective that he thought such a condition, if diagnosed and treated, could be dealt with appropriately. It was not suggested that such observations led to a circumstance that the Court ought have any concern that the Accused was not fit to stand trial. Before such a conclusion could be reached it would be necessary for there to be expert medical evidence put before the Court.
The second and third bases for the lengthy adjournment was the need for sufficient time to enable suitable funding to be obtained of a kind which would permit Mr Conolly to resume acting for the Accused in the trial or, alternatively, for appropriate alternative legal representation to be obtained.
In the affidavits sworn by Ms Ramsay and filed in the proceedings, the Court was informed that it was proposed to approach both the Attorney‑General for the Commonwealth and the Attorney‑General for New South Wales with a detailed submission in relation to obtaining appropriate funding.
The Court was also informed that notwithstanding past dealings with Legal Aid New South Wales ("Legal Aid NSW") (including the fact that Legal Aid NSW had declined the request for a face-to-face meeting or telephone discussion with Mr Conolly or Ms Ramsay to discuss the question of the provision of financial support by way of a further grant of legal aid or to receive any further submissions), Mr Conolly was hopeful that he would be able to engage in constructive discussions with senior officers of Legal Aid NSW.
Although in past times Mr Conolly has informed the Court of other potential funding sources which may be amenable to approach, those other funding sources do not feature in the current application and were not relied upon as possibilities. I infer that those possibilities have been explored unsuccessfully.
Mr Conolly candidly conceded that any submissions he would wish to put before either of the Attorneys‑General or the senior officers of their respective Departments would need to be detailed and would take some time to prepare. I gained the impression that any such submissions had not yet been prepared or formulated into formal documentation nor were they in draft form.
The extent of funding which it is anticipated will be sought is outlined in the affidavit of Ms Ramsay of 25 January 2019 in these terms: "45. To effectively and fairly run the defence of the proceedings requires more than the funding for a counsel and solicitor on Legal Aid rates."
The affidavit also notes that the submissions to the Attorneys-General would seek access to what is described as "special funding".
The affidavit also outlined attempts the which have been made to secure the services of counsel or other solicitors which, in somewhat general terms, are reported on as being unsuccessful. The evidence also drew attention to the fact that, having regard to the time of year, a number of counsel had not returned to chambers and, in respect of some of them, I infer their professional diaries were not available to be consulted.
The fourth basis for the order for the more lengthy adjournment is that it is necessary for the Accused to make an application to the Court for a permanent stay of proceedings in the event that "all avenues to secure funding fail". The evidence informs the Court that at least one senior counsel is willing to appear on the making of such application on a pro bono basis.

General Context

The context in which to consider these grounds is contained in the affidavits which, in many respects, constitute submissions rather than statements of fact. The affidavits draw attention to the length and complexity of this criminal trial, the seriousness of the charges which confront the Accused, the extent of the documentation which underpins the Crown case, the approach presently taken by the lawyers for the Accused to the defence of those counts on the Indictment and the lawyers' assessment of the capacity of the Accused to fully comprehend the detail of the allegations, the court process and what is required to mount an appropriate defence.

Discernment

As I have earlier indicated, the Crown accepted that an adjournment was necessary but it submitted that an adjournment of a considerably shorter period (to 25 February 2019) was all that was necessary before the trial could continue, on the basis that the Accused represented himself.
The Crown proposed that in the period between now and 25 February 2019, it would provide the Accused with a series of paper documents (to the detail of which it will be necessary to return) and that there would be sufficient time for the Accused to make application for a temporary stay of the trial in accordance with the principles referred to in the decision of the High Court of Australia in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 and, in particular, in the judgment of Mason CJ and McHugh J, at page 311.
The Crown drew attention to the fact that any stay of a trial granted on the basis of the decision of Dietrich is in the nature of a temporary, not permanent, stay. That is because, if the Accused was able to demonstrate that he fell within the category of applicants to whom Dietrich would apply, any stay ordered for that reason would be limited in time until legal representation was available.
The Crown proposed that any such temporary stay application could be dealt with in the period between now and 25 February 2019. In its submissions, the Crown drew the Court's attention to the fact that the substantive criminal trial was part-heard and due to recommence this week, that there was an overwhelming public interest in the expeditious resolution of the charges against the Accused and that it would be inappropriate, in effect, to adjourn the trial for what the Crown submitted would be an unlimited period. In this respect, the Crown submitted that the nature of the application by the Accused, for a period of an adjournment for twelve weeks to enable further inquiries and requests to be made, proffered no certainty that after that period of twelve weeks the trial would then be in a position to proceed or that the Court would be in any better position than it is today. The Crown expressed its concern that if an adjournment of twelve weeks were granted and at the end of that adjournment representations were unsuccessful and no alternative lawyers could be obtained to represent the Accused, the Court would be confronted with the need to then manage, by one or more further adjournments, perhaps for lengthy periods, the trial in which the Accused would be representing himself.
In reply, Mr Conolly for the Accused accepted as reasonable the Crown's proposal that there should be a date fixed for the hearing of any motion seeking a temporary stay of the kind referred to in Dietrich within a relatively short period of time. Mr Conolly accepted that orders giving effect to that proposal ought be made.
However, with respect to the length of the adjournment, upon which the parties differed, Mr Conolly informed the Court that the process of transferring to the Accused all of the documents in the possession of his firm or, alternatively, putting them into a state which would enable their ready transfer to the Accused or perhaps an alternative legal representative, had not been started by his firm. Mr Conolly estimated that it would take some months for his firm, within their constrained resources, to engage in the task of readying the documents for transfer. Mr Conolly did not elaborate in any factual detail on this submission, nor was this process addressed factually in the affidavits relied upon. Mr Conolly informed the Court that there was a very large quantity of documents which had been amassed by his firm to date and that he was not at all confident that the Accused would be able to absorb that volume of material in the period of time proposed by the Crown.
Mr Conolly also highlighted his view that there were many other individuals whom the Crown ought to call as witnesses in the proceedings and for whom statements were not to be presently found in the Crown brief. He drew attention to the fact that this would add to the length and complexity of the documents that would need to be available to the Accused. These are the competing submissions that require resolution.
Within the time proposed by the Crown, which is the shorter of the two periods, there would be sufficient time to hear and give judgment in any application made for a temporary stay. Accordingly, the need to list and hear such an application does not affect the evaluation of the appropriate period for the adjournment. No further consideration of this issue is required.
As a fall-back option, Mr Conolly submitted that the Court ought to refrain from fixing a further trial date until after that temporary stay application had been heard and determined. It seems to me that the effect of such an approach would be to adjourn this trial indefinitely and I am unwilling, in the interests of the efficient administration of justice, to embark upon such a course. I do not propose to accept that submission.
What then should happen to the trial? If the application which is to be made is successful, the trial will be adjourned until legal representation is arranged. That is done so as to ensure, in accordance with well-known principles, that an accused is not tried unfairly. Such an adjournment for that purpose is an adjournment in the interests of the administration of justice to avoid an unfair trial.
This is not the time to consider and determine the course to be followed if such a stay is granted. If, however, the application for such a stay is rejected, then the matter which confronts the Court today, and again at that time, is that the Accused will not be legally represented and the trial would need to be resumed and to proceed in that context.
Many issues would arise if the Accused appeared for himself, including but not limited to: the identification of the issues which are to be contested; the objectively reasonable time assessed as necessary for the Accused to be in a position of readiness for the trial having regard to all that has previously transpired; for the Accused to be ready to ask questions of any witness which he wishes to and which accord with the rules of evidence; the custodial arrangements neccessary to enable the Accused to prepare for resumption of the trial; the custodial arrangements neccessary to transfer the Accused to Court for the purpose of the conduct of his defence; and the administrative arrangements the Court would need to make to accommodate all of those circumstances.
It seems to me that attention needs to be addressed to those matters and the trial resumed as soon as is reasonably practicable after the determination of the application for a temporary stay, in the event that such application is unsuccessful. That is because the efficient administration of justice requires that the trial proceed as expeditiously as is possible, whilst ensuring that the trial is fair.
In those circumstances and weighing up the particular submissions, I am particularly concerned by the proposition, which I think is inherent in the application by the Accused for an adjournment of at least twelve weeks, that it is not contemplated by such a lengthy adjournment that, absent funding being made available to the current lawyers for the Accused, the trial will be able to resume at that time.
There has been an adjournment, up until today, for a period of about six weeks in circumstances where the Court was willing to resume sitting in January but, at the request of the Accused and his lawyers, adjourned until the commencement of the Law Term. Adding another twelve weeks to the adjournment would result in a total adjournment of eighteen weeks interrupting the hearing of evidence in the trial. As well, in my evaluation, there would be a further period, perhaps as long as four or six weeks, to provide for a period to enable the Accused to be ready to represent himself, which would follow before the trial could resume. An almost six-month break, in the middle of a criminal trial in which the evidence of least one witness is part-heard would be unacceptable in the circumstances of this trial. I do not propose to grant, for those reasons, the orders which the Accused seeks as to the length of the hearing.
Given the circumstances that have been arrived at, it is appropriate that the Accused be provided with documents to enable him to prepare for the resumption of his trial on the basis that his application for a temporary stay until legal representation is arranged is unsuccessful, that no alternative funding is made available and no alternative legal representation is made available.
Those documents have been set out in a list by the Crown, handed to the Court on 30 January 2019 and marked Exhibit T16. Whilst it is always hard to be precise about these matters, in my estimation what is there involved with the Crown is the provision of something in the order of fifty volumes of documents to the Accused.
The Accused has already seen many of the documents. The Accused has access to a computer upon which the entirety of the Crown brief is available. He has that computer available to him, as I understand it, for the best part of each day. The Accused has had the Crown brief in that form for well over six months. However, matters such as the written trial transcript, copies of exhibits and other documents referred to in Exh T16 may provide information to him in a different form from that which he has already had, and that may well assist in the further preparation by the Accused for his trial.
As well, if I was to fix a date for the resumption of the trial, then it is always open to the Accused to make any application for a further adjournment of the conduct of the trial. Such adjournment would not automatically be granted but would depend upon the evidence and the submissions which may be put at that time. In that way, concurrent preparation by the Accused, both for the trial and by his lawyers for the stay application, can proceed.
Further, it seems to me necessary to make provision for a directions hearing to take place prior to the date for any resumed trial at which any administrative or custodial matters can be dealt with by the Court. This is a way forward which assumes that a temporary stay is not granted when that motion is argued, because if a temporary stay is granted, then the trial would take a different course.

A Caution

To the extent that it is necessary to remind those who read this judgment, I do so in plain terms: Nothing in this judgment should be taken as indicating that I have formed any view at all, one way or the other, as to the merit of any foreshadowed application for a temporary stay of the trial until legal representation is available. It is, however, necessary in considering the issues before the Court, to make provision for what might happen in the event that such application is unsuccessful. I repeat, if the application is successful, the consequential directions which would follow will depend upon the basis upon which such an application may succeed.

Conclusion

In making this interlocutory decision, I am obliged to take into account the principal issues concerning the best way in which the Court can adhere to the interests of the administration of justice including ensuring that the Accused is not confronted with an unfair trial. It seems to me that I should adjourn the trial to be resumed, not in twelve weeks and not in the time suggested by the Crown, but rather to a little over five weeks. That period will enable sufficient time for the provision of documents to the Accused, including a list of witnesses to be called, and for the Accused in that time to ready himself to conduct the trial against the possibility that his application for a temporary stay is unsuccessful. The interests of the administration of justice do not permit an unlimited adjournment, nor do they permit an adjournment which is of such a lengthy period as would, of itself, mean that there had been a delay in the conduct of the trial of a kind which would make the trial unfair.
In those circumstances, and taking into account all of the matters put before the Court, it is inevitable that there be an adjournment as provision must be made for the bringing of an application for a temporary stay and, as well, for the resumption of the trial. In my view, to achieve all of these objectives, some of which are in tension, the best way of ensuring the administration of justice is to make the following orders.

Orders

I make the following orders: 1. Adjourn the hearing of the trial and the taking of evidence to 10am 11 March 2019. 2. Fix the matter for a directions hearing at 10am on 4 March 2019 in the presence of the Accused, for the purpose of considering all further administrative and custodial matters which may arise with respect to the efficient further conduct of the trial. 3. Direct that the Crown give notice of that directions hearing to Corrective Services, accompanied by a request that a Senior Officer with authority with respect to arrangements for the detention of people in correctional centres or his or her legal representative be present in court at that time so that any necessary administrative arrangements can be determined. 4. Order that on or before 4pm Thursday 7 February 2019, the Accused is to file any notice of motion upon which he wishes to rely seeking a temporary stay of the trial until legal representation is provided together with all affidavits in support in admissible form and an outline of submissions in support of such orders. 5. Order that such documents are to be served upon the DPP and the Attorney-General for NSW. 6. Order that any affidavit evidence or other material in response to any such application together with an outline of submissions is to be filed and served by 10am Wednesday 13 February 2019. 7. Order that any evidence in reply to that material is to be filed by midday on Friday 15 February 2019. 8. Fix any such Motion for hearing before Garling J at 10am on Friday 18 February 2019. 9. Allow 1 day for the application - each party to have a maximum of 2½ hours for oral submissions in the course of that day. 10. Direct that when any documents are filed and served on any other party, a hard copy of them is to be provided to to the Chambers of Garling J. 11. Grant any party liberty to apply to relist the matter before Garling J on 24 hours' notice. 12. Order that the Accused is to attend the hearing on 18 February 2019 by AVL, and to the extent necessary that he be remanded in custody.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2019

At a glance

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Judgment (11 paragraphs)

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Cases Cited (2)

Cited By (1)