Citation: R v Seller; R v McCarthy (No 5) [2014] NSWSC 1410
Court: Supreme Court of New South Wales
Date: 10 October 2014
Judge(s): Button J
Background
Two accused were due to stand trial commencing Monday 20 October 2014. An interlocutory judgment given by the trial judge was the subject of a hearing in the Court of Criminal Appeal listed for the Friday immediately before the trial date. The outcome of that appeal would materially affect the shape of the Crown case, including which witnesses the Crown would call.
Counsel for both accused applied for an adjournment of the empanelment date, arguing that the logistics of proceeding so quickly after the appellate hearing were unworkable. The Crown did not vigorously oppose the application, although it submitted the difficulties were not as significant as the defence suggested.
The trial judge had initially proposed empanelment no earlier than the Thursday of that week, giving parties two clear days after the Court of Criminal Appeal's orders to prepare. Defence counsel sought a further extension to the Monday of the following week.
Legal Issues
- Whether the proposed trial commencement date should be adjourned to allow adequate time for parties to absorb the outcome of the Court of Criminal Appeal hearing and address outstanding pre-trial legal matters
- Whether the volume of pre-trial objections and a short voir dire could be accommodated within the originally proposed timetable
Decision
Adjournment Application:
Button J accepted, with some reluctance, that the original proposal of empanelment on the Thursday was unduly onerous on all parties (at [8]). The sequence of events, namely a hard-fought appellate hearing on Friday, only a weekend and two days to absorb the outcome, then one and a half days of pre-trial legal argument, followed immediately by empanelment, was considered too compressed to be in the interests of the parties or the Court (at [8]).
His Honour also noted a separate logistical obstacle: the third report of an alternative witness would not be available until the middle of that week, meaning defence counsel might commence the objections hearing having only just received it, or not having received it at all (at [6]).
Revised Timetable:
Button J directed that pre-trial legal objections and the voir dire would commence on the Wednesday of that week at 10 am (at [10]). Jury empanelment was fixed for Monday 27 October 2014 at 10 am, and his Honour made clear that date was not contingent on the objections process finishing earlier (at [10], [13]). Even if the legal argument extended across the entire Friday, empanelment would still proceed on the Monday (at [13]).
His Honour also directed that counsel were expected to identify every potential objection arising from the entire brief, to the extent reasonably practicable, and place them all before the Court at the Wednesday session, so that interruptions during the trial itself would be minimised (at [11]-[12]).
Orders Made
- Adjournment granted
- Pre-trial legal objections and voir dire to commence Wednesday 22 October 2014 at 10 am
- Jury empanelment fixed for Monday 27 October 2014 at 10 am
Key Takeaways
- Button J recognised that where a significant interlocutory appeal is listed for the business day immediately before a trial, the resulting uncertainty about the Crown case can justify adjourning empanelment to allow adequate preparation time (at [4]-[5], [8]).
- The unavailability of an expert report until mid-week was a further logistical factor weighing in favour of a short adjournment, particularly where defence counsel would need to consider that material before arguing pre-trial objections (at [6]).
- A compressed timetable moving from an appellate hearing directly into contested pre-trial argument and then immediate empanelment was characterised as "unduly onerous" and contrary to the interests of all parties and the Court (at [8]).
- Once fixed, the empanelment date was treated as firm: the Court directed that even if the pre-trial objections hearing occupied the full available days, empanelment would proceed on the Monday without further delay (at [13]).
- Counsel were directed to surface all anticipated objections from the brief at the pre-trial session rather than raising them piecemeal during the trial, reflecting the Court's expectation that trials proceed with minimal interruption (at [11]-[12]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated