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Supreme Court 14 August 2015

R v Rogerson; R v McNamara (No 14)

[2015] NSWSC 1157

Public order & justice offences
CRIMINAL LAW NECESSITY TO VACATE TRIAL DATE

Citation: R v Rogerson; R v McNamara (No 14) [2015] NSWSC 1157
Court: Supreme Court of New South Wales
Date: 14 August 2015
Judge: Bellew J

Background

Two accused persons were awaiting trial on serious criminal charges before Bellew J. By the time trial commenced, 13 pre-trial judgments had already been delivered, and a jury of 15 had been empanelled on 27 July 2015. Following opening addresses, the jury was discharged for reasons that Bellew J suppressed on the basis that publication could prejudice a fair trial.

A new trial date of 18 August 2015 was fixed, with specific arrangements made by the Sheriff to assemble jury panels in advance. On 11 August 2015, evidence emerged that counsel then appearing for the accused McNamara had apparently published a photograph and caption on social media accounts that raised serious concerns. The photograph appeared to have been taken immediately outside the court precincts, and the caption was suppressed by order of the court.

When that evidence came to light, Bellew J stood the proceedings down to allow counsel to take advice. The following day, senior counsel appearing on his behalf advised that counsel was obliged to return the brief, and an application for leave to withdraw was formally made and granted. This left the accused McNamara without legal representation, requiring the retainer of new senior counsel who was unable to commence the trial until 2016.

  • Whether the trial date of 18 August 2015 should be vacated given that newly retained counsel could not appear that year.
  • Whether the conduct of the withdrawing counsel, in connection with the social media posts, should be referred to the Registrar for consideration of possible contempt of court proceedings.

Decision

Bellew J accepted the practical reality that the trial could not proceed as scheduled. Newly retained senior counsel indicated that, given existing commitments, he could not appear in 2016 before March. The Crown, though reluctant, acknowledged that new counsel would need weeks merely to read the material, and that any trial commencing later in 2015 would run into the Christmas and New Year period, creating difficulties with jury availability. In those circumstances, vacating the 18 August trial date was unavoidable.

One party vigorously opposed vacation of the trial date, raising concerns about Legal Aid protocols and the entitlement of his co-accused to a prompt trial. Bellew J nonetheless proceeded to vacate the date, listing the matter for further directions on 14 September 2015, with neither accused required to attend.

On the question of the social media posts, the Crown submitted that the evidence warranted referral to the Registrar under Part 55 rule 11(6) of the Supreme Court Rules to consider whether contempt proceedings should be brought. Senior counsel who had advised the withdrawing barrister corresponded with the court indicating agreement with the referral, while expressly not conceding that any contempt had in fact occurred.

Bellew J accepted that the referral was properly a matter for the court regardless of party agreement. In light of the evidence before him, he made the referral, directing the Registrar to seek advice from the Crown Solicitor as to whether contempt proceedings should be taken, to act in accordance with that advice, and to inform the Attorney General.

Orders Made

  • The trial date of 18 August 2015 was vacated.
  • The proceedings were listed for further directions at 9.15am on Monday 14 September 2015, with neither accused required to attend.
  • Pursuant to Part 55 rule 11(6) of the Supreme Court Rules, the question of a possible contempt of court by the withdrawing barrister was referred to the Registrar of the Common Law Division.
  • The Registrar was directed to seek advice from the Crown Solicitor as to whether contempt proceedings should be taken; to act in accordance with that advice; and to inform the Attorney General for New South Wales.
  • Any party was granted liberty to restore the proceedings to the list on 24 hours notice.

Key Takeaways

  • Where newly retained counsel cannot appear in time to preserve a scheduled trial date, and the Crown accepts that proceeding is impractical, vacation of the trial date will follow as a matter of practical necessity.
  • Under Part 55 rule 11(6) of the Supreme Court Rules, a judge may refer the question of a possible contempt to the Registrar, who is then directed to obtain advice from the Crown Solicitor and to act in accordance with that advice.
  • A referral for possible contempt remains a matter for the court's independent judgment; party agreement to the referral does not determine it, and agreement to the referral does not constitute an admission that any contempt occurred.
  • Social media posts made by counsel during a criminal trial, where those posts touch on suppressed material or the subject matter of proceedings, can give rise to contempt considerations with direct consequences for the conduct and timing of that trial.
  • The Supreme Court's capacity to manage contempt referrals through the Registrar and Crown Solicitor provides a procedural mechanism for scrutinising counsel conduct without the trial judge resolving the contempt question personally.

Legislation and Cases Referenced

Legislation:
- Supreme Court Rules (NSW), Part 55 rule 11(6)

Cases cited: No cases were cited in the judgment.