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Supreme Court 21 October 2013

R v Hassan

[2013] NSWSC 2034

Homicide
CRIMINAL LAW PROCEDURE APPLICATION TO VACATE TRIAL DATE

Citation: R v Hassan [2013] NSWSC 2034
Court: Supreme Court of New South Wales
Date: 21 October 2013
Judge(s): Garling J

Background

The accused faced trial for the murder of a woman who died from multiple stab wounds on 17 April 2012. He had been in continuous custody since his arrest that same evening, and had been committed for trial by Burwood Local Court in March 2013. A trial date of 21 October 2013 was fixed for three weeks, and as recently as 29 August 2013, experienced senior counsel confirmed at a directions hearing that the matter was ready to proceed.

Shortly before trial, the accused terminated the instructions of his previous lawyers and retained new solicitors at Aquila Lawyers. As of early October 2013, those new solicitors had not read the brief, had not assessed the Crown case, and had not briefed counsel. A Legal Aid grant was assigned to the new firm on 8 October 2013, but it was a "start-up" grant that made no provision for counsel.

On 11 October 2013, an application to vacate the trial was made to the duty judge, Button J, who declined to vacate but deferred the commencement date to 28 October 2013 so the application could be renewed before Garling J. That renewed application was heard on the morning of 21 October 2013.

  • Whether the trial date should be vacated entirely, or the commencement deferred, following a late change of legal representation by the accused.
  • How to balance the accused's right to an adequate opportunity to prepare a defence against the public interest in prompt trials, the interests of justice in minimising delay, and the accused's own interest in not remaining on remand longer than necessary.
  • Whether the outstanding Legal Aid application for expert witnesses justified any extension of time.

Decision

Garling J was firmly of the view that it is unacceptable for an accused to change lawyers at a very late stage and expect the court to automatically accommodate that decision. His Honour identified three reasons for this position: the public interest in prompt trials of serious crime, the general interests of justice (given that the quality of evidence deteriorates with delay), and the particular interests of a remanded accused who retains the presumption of innocence and should not be kept in custody a day longer than necessary.

The court indicated that, but for one specific matter, it would not have vacated or deferred the trial at all. The other steps that new counsel said were needed, including reviewing witness evidence and checking the accuracy of a recorded interview transcript, were matters that could be attended to within the time then available.

The critical factor was the outstanding Legal Aid application. The new firm had promptly applied for an extended grant to cover expert witnesses, but that application had not yet been determined. Because retaining the necessary forensic experts depended on that grant being approved, the court accepted that a short deferral was justified. The court noted that its calendar could accommodate a commencement date of 18 November 2013, approximately one month away, and found that this period struck the proper balance between all competing interests.

The court declined to vacate the trial entirely. It deferred commencement to 18 November 2013 and directed a monitoring hearing on 25 October 2013 to receive a report on the progress of the Legal Aid application and the retainer of experts.

Orders Made

  • Trial commencement date of 28 October 2013 vacated.
  • Trial fixed to commence at 10am on 18 November 2013.
  • A section 77 Order to issue to ensure the accused was produced for trial on 18 November 2013.
  • Interpreter in the North Sudanese language arranged for the trial.
  • Matter listed at 10:15am on 25 October 2013 for a report on progress of the Legal Aid grant and retainer of experts.
  • Suppression order made by Burwood Local Court on 18 April 2012 (suppressing the names of the accused, deceased, and connected persons) vacated.
  • Matter to be listed in future under the accused's full name.

Key Takeaways

  • The Supreme Court confirmed that late changes of legal representation, after a trial date has been fixed for a substantial period, will not automatically result in vacation of the trial date.
  • Three competing interests must be weighed when such applications are made: the public interest in timely prosecution of serious crime, the general interest of justice in avoiding evidence degradation through delay, and the accused's personal interest in not remaining on remand beyond what is strictly necessary.
  • Where new lawyers have had adequate time to attend to routine preparation steps (such as reviewing transcripts and interviewing witnesses), those matters alone will not justify deferral.
  • An outstanding Legal Aid application that is genuinely necessary to fund expert evidence can constitute sufficient grounds for a limited deferral, provided the application was made promptly.
  • In exercising its discretion, the court may impose monitoring conditions, such as a mandatory report-back hearing, to ensure the matter proceeds on the revised date.

Legislation and Cases Referenced

Legislation:
- Section 77 Order (the judgment refers to a "s 77 Order" requiring the production of the accused, consistent with prison production procedures under NSW legislation, though the specific Act is not identified in the judgment)

Cases cited: None cited in the judgment.