Citation: R v Hamzy [2015] NSWSC 1428
Court: Supreme Court of New South Wales
Date: 29 September 2015
Judge(s): RS Hulme AJ
Background
The accused faced multiple charges, including murder, and had been in custody since his arrest in November 2013. He was committed for trial in March 2015, and the matter came before the Supreme Court in May 2015. A trial date of Monday 6 October 2015 was fixed in June 2015, with the Crown indicating at the time that there were no pre-trial issues.
In the two weeks before the scheduled trial, the Crown served a number of further statements of obvious and substantial potential materiality. One of those statements had the effect of placing the accused's solicitor in a position of conflict, causing him to withdraw from the matter. Newly retained solicitors advised that they could not be ready to proceed by the trial date.
The court accepted the explanation provided and considered whether the trial could proceed as scheduled.
Legal Issues
- Whether the trial date should be vacated given the late service of Crown material and the consequent need for the accused to retain new legal representation
- Whether the matter should be relisted for further directions
Decision
Issue 1: Vacation of trial date
The court accepted the explanation that the matter could not be ready to proceed on the scheduled date (at [2]). Given the late service of the Crown's statements, the withdrawal of the accused's solicitor, and the engagement of fresh legal representation, the court found there was no option but to vacate the hearing (at [3]).
The court noted that no trial date was available in the remainder of 2015, meaning the trial would now commence no earlier than mid-February 2016, and possibly March 2016. That would represent approximately two and a quarter years between arrest and trial, which Hulme AJ described as "a disgrace to the criminal justice system" (at [3]).
Issue 2: Responsibility for the delay
The court found that the delay arose because relevant officers in the Office of the Director of Public Prosecutions were unaware of information that was clearly relevant and should have been disclosed much earlier (at [4]). Hulme AJ expressed that, after more than 20 years on the bench, he remained consistently surprised by the level of incompetence or inefficiency within the Office of the Director of Public Prosecutions (at [5]).
The court went further, stating that arraignment judges could no longer place confidence in Crown representations that a matter was ready for trial, and that when such representations proved accurate it would be "purely a matter of chance" (at [5]).
Orders Made
- The trial date commencing Monday, 6 October 2015 is vacated.
- The matter is stood over to the Arraignments List on Friday, 2 October 2015.
- The accused is remanded in custody.
Key Takeaways
- Late service of Crown material that effectively forces a change of defence solicitor can constitute sufficient grounds for vacating a fixed trial date, where the court accepts that new legal representatives cannot realistically be ready in time (at [2]-[3]).
- Hulme AJ characterised extended pre-trial incarceration, in this case approaching two and a quarter years from arrest to expected trial, as a disgrace to the criminal justice system, pointing to systemic pressure of work in New South Wales courts as a contributing factor (at [3]-[4]).
- The Supreme Court attributed the specific delay in this matter to the failure of relevant DPP officers to be aware of, and disclose, clearly relevant material at an earlier stage (at [4]).
- Arraignment judges cannot treat Crown representations that a matter is trial-ready as reliable, according to Hulme AJ's assessment of the DPP's office, though this observation is confined to the particular circumstances and views expressed in this judgment (at [5]).
- Where a trial date is vacated close to its commencement, a practical consequence may be that no substitute date is available within the same calendar year, further extending the period of pre-trial custody for an accused who remains remanded (at [3]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated