Citation: Abdallah v R [2015] NSWCCA 233
Court: Court of Criminal Appeal, NSW
Date: 28 August 2015
Judge(s): Beazley P; R A Hulme J; Bellew J
Background
The appellant was before the Court of Criminal Appeal to pursue an appeal against conviction and an application for leave to appeal against sentence for murder. The hearing had been listed since 21 May 2015 and was allocated a full day on 28 August 2015.
Two days before the hearing, senior counsel for the appellant emailed the Court's Registrar seeking an adjournment. The reason was a conflict with another significant commitment: senior counsel was appearing for a family at the ongoing coronial inquest into the Lindt Café Siege, and witnesses relevant to a matter of particular concern to that family were unexpectedly scheduled for the very day of the appeal hearing.
The Crown opposed the adjournment. The Court was therefore required to decide whether the late application should be granted, and on what basis.
Legal Issues
- Whether an adjournment of a long-listed hearing date should be granted where it was sought only two days before the scheduled hearing
- Whether the circumstances advanced by the applicant rose to the level of "exceptional circumstances" ordinarily required to justify a late adjournment
- How the competing public interests in efficient use of court time and the uninterrupted conduct of the coronial inquest should be weighed
Decision
The Court granted the adjournment, but did so reluctantly and made clear it was not satisfied that exceptional circumstances had been established. The Court's strong view was that senior counsel should have identified the risk of conflict much earlier and arranged for alternate counsel to be briefed in time for the appeal to proceed.
The Court emphasised the significant costs of late adjournment applications. Judicial preparation time is wasted, no substitute matter can be listed at short notice, and delay affects the parties, including the family and friends of the deceased. The likely consequence of the adjournment was that a new hearing date would not be available until approximately February of the following year.
Notwithstanding those concerns, the Court concluded that the public interest in not disrupting the Lindt Café Siege inquest outweighed, on this occasion, the Court's firm preference for the matter to proceed. The inquest concerned matters of broad public significance, and senior counsel's presence at it on that day was, on the evidence before the Court, effectively unavoidable at that late stage.
The decision is therefore narrow in its operation. It does not relax the general standard requiring exceptional circumstances for late adjournments. Rather, it reflects the Court's assessment that the particular public importance of the inquest, in the specific circumstances, tipped the balance.
Orders Made
- Matter adjourned to the Registrar's list on 10 September 2015 for the fixing of a new hearing date.
Key Takeaways
- Late adjournment applications will ordinarily require exceptional circumstances to succeed; the Court of Criminal Appeal reaffirmed that efficient use of court time is a matter of genuine public interest, not merely administrative convenience.
- Granting an adjournment here, the Court explicitly declined to find that exceptional circumstances existed, making clear the decision rested on the distinct public significance of the concurrent coronial inquest.
- Practitioners appearing in this Court are expected to assess potential conflicts early and arrange substitute counsel well in advance; the Court's remarks indicate that a last-minute conflict of commitments will not routinely suffice.
- Wasted judicial preparation time and the inability to relist another matter at short notice were identified as concrete, systemic costs of late adjournment applications.
- Delay in finalising criminal proceedings carries ongoing human costs for the families of victims, a consideration the Court noted explicitly in expressing its reluctance to grant the adjournment.
Legislation and Cases Referenced
No specific legislation or cases were cited in this decision.