Citation: R v Chan; R v Jun [2014] NSWDC 43
Court: District Court of New South Wales
Date: 28 March 2014
Judge(s): Berman SC DCJ
Background
Two co-offenders were listed for sentence proceedings in the District Court on 28 March 2014, with a prior direction that their matters be dealt with together. The afternoon before the hearing, counsel for one offender left a message with the judge's associate claiming he believed the listing was for 2:00 pm, not 10:00 am, and that he could not attend at 10:00 am because he was part-heard in a trial. His instructing solicitor was informed of this the same afternoon.
When the matter was called at 10:00 am, the solicitor appeared in place of briefed counsel. He applied for an adjournment, acknowledging he had done little more than administrative work in preparation, having expected the matter would simply be adjourned. An hour's grace was granted to allow further preparation.
On the court's return at 11:30 am, a QC who had just been briefed moments earlier appeared for that offender and renewed the adjournment application. The judge found the entire situation wholly unsatisfactory and delivered remarks addressing both the conduct of counsel and the broader consequences of such conduct for the administration of criminal justice.
Legal Issues
- Whether an adjournment should be granted where counsel was unavailable due to being part-heard in another trial and had given incorrect information about the listing time
- Whether co-offenders in sentence proceedings should be dealt with jointly, and what consequences flow from disrupting that joint hearing
- Whether the conduct of the legal practitioners involved warranted referral to their professional bodies
Decision
Berman SC DCJ granted the adjournment but expressed pointed criticism of both counsel and the instructing solicitor. The judge found that counsel's assertion that the matter was listed for 2:00 pm was simply wrong, and declined to express any view on whether that belief was genuinely held. The solicitor's failure to prepare the matter once he became aware of counsel's unavailability the previous afternoon compounded the problem.
The judge emphasised the serious systemic consequences of wasted court time in the criminal jurisdiction. People in custody awaiting sentence are held on remand, with significantly reduced access to rehabilitative programs and courses compared to sentenced prisoners. Delays in sentence proceedings therefore affect real people in tangible ways, and the District Court's responsibility to proceed efficiently is not merely administrative.
On the question of joint sentencing, the judge explained why co-offenders should, wherever possible, be sentenced in the same proceedings. Where matters are dealt with separately, inconsistent findings of fact can emerge: evidence admissible in one proceeding may suggest one offender is less culpable, while evidence in the separate proceeding points the opposite way. Dealing with co-offenders together reduces that risk.
The judge indicated he would send a copy of his remarks to both the Bar Association of New South Wales and the Law Society of New South Wales for investigation into the conduct of the legal practitioners involved.
Orders Made
• Grant Mr James' application for an adjournment
• List the matter for sentence at a date to be discussed with counsel
• Send a copy of the remarks to the Bar Association and the Law Society of New South Wales for investigation into the conduct of the legal practitioners
Key Takeaways
- The District Court reaffirmed that co-offenders should, where possible, be sentenced in the same proceedings to avoid inconsistent factual findings that can arise when matters are heard separately, even before the same judge.
- Late unavailability of counsel, combined with a failure by the instructing solicitor to prepare the matter once that unavailability became known, constituted conduct sufficiently serious to warrant referral to professional bodies.
- An adjournment was granted, but the court made clear that granting relief does not insulate practitioners from scrutiny of the conduct that made the adjournment necessary.
- Wasted court time in the criminal list has direct human consequences: remand prisoners awaiting sentence have limited access to rehabilitation programs, and unnecessary delay in sentence proceedings prolongs that disadvantage.
- Where counsel asserts a listing time that is simply incorrect, that error, whether or not genuine, does not excuse a failure by either counsel or the instructing solicitor to have the matter ready to proceed.
Legislation and Cases Referenced
Legislation: None cited in the judgment.
Cases: None cited in the judgment.