Citation: R v Ngo [2001] NSWSC 887
Court: Supreme Court of New South Wales
Date: 10 October 2001
Judge(s): Dunford J
Background
On 29 June 2001, a jury found the prisoner guilty of the murder of John Newman MP, a New South Wales member of parliament. Two co-accused were acquitted. Following the verdict, sentencing submissions were fixed for 12 October 2001.
The prisoner's trial counsel, Mr Nicholson SC (Senior Public Defender), was retiring and could not appear at sentencing. Mr Hoenig, who had represented one of the acquitted co-accused during the trial, was subsequently briefed to appear for the prisoner at sentencing. However, Mr Hoenig was unavailable on the scheduled date due to a pre-booked holiday taken after he had accepted the brief.
Mr Pearsall, who had served as junior counsel to Mr Nicholson throughout the trial, appeared before Dunford J on 10 October 2001 to seek an adjournment of the sentencing proceedings.
Legal Issues
- Whether the sentencing proceedings should be adjourned to accommodate the prisoner's preferred counsel, who was unavailable due to a pre-booked holiday taken after accepting the brief.
Decision
Dunford J refused the adjournment. His Honour accepted that the Crown was likely to seek a life sentence, that the matter was of the gravest seriousness, and that the prisoner deserved the best available representation. The central question, however, was whether refusing the adjournment would leave the prisoner without adequate representation.
His Honour found that Mr Pearsall was an extremely competent and experienced criminal practitioner who had participated actively in the trial from its outset, including in interlocutory submissions and the examination of witnesses. Refusing the adjournment would not deprive the prisoner of competent representation; it would simply mean that a different, but highly capable, counsel would appear.
Dunford J expressed strong disapproval of Mr Hoenig accepting a brief for a specially fixed matter when he already knew he would be unavailable. His Honour stated that court lists are under significant pressure and that counsel do not have a right to manage or rearrange court dates to suit their own convenience. Because there was no risk of injustice to the prisoner, the adjournment application was refused.
Orders Made
- Application for adjournment refused.
- Submissions on sentence to proceed on Friday 12 October 2001.
Key Takeaways
- Refusing an adjournment for sentencing proceedings will not be regarded as causing injustice where the prisoner retains competent and experienced representation, even if the prisoner's preferred counsel is unavailable.
- The gravity of potential sentencing outcomes, including the prospect of a life sentence, does not of itself justify an adjournment if adequate representation remains available.
- Accepting a brief for a specially fixed court date while knowing that one will be unavailable drew explicit judicial criticism, with Dunford J describing the conduct as appalling.
- Courts retain firm control over fixed hearing dates, and counsel's personal scheduling conflicts do not, without more, create an entitlement to rearrange listed proceedings.
Legislation and Cases Referenced
No legislation or cases were cited in this decision.