Citation: [2016] NSWSC 1940
Court: Supreme Court of NSW
Date: 1 March 2016
Judge(s): Adamson J
Background
Both accused persons faced a criminal trial listed to commence on 14 March 2016, a date set by Johnson J in the arraignments list the previous May. Despite approximately ten months of notice, neither accused had secured legal representation in time for the trial date.
The first accused had initially brought an application under Dietrich v The Queen (1992) 177 CLR 292, which permits an accused to seek a stay of proceedings where they cannot obtain legal representation for a serious criminal trial. That application was ultimately withdrawn. His solicitor had sworn an affidavit indicating that efforts were still being made to obtain funding from the Premier and the Attorney General.
The second accused held a directors and officers insurance policy with Chubb Insurance that appeared to cover legal representation. Despite multiple communications between his solicitor and Chubb, the insurer had neither released funds nor formally declined indemnity. Both accused applied to vacate the trial date.
Legal Issues
- Whether the trial date of 14 March 2016 should be vacated on the basis that neither accused had secured legal representation
- Whether the interests of justice and trial fairness required an adjournment notwithstanding the lengthy notice period
- The potential application of Dietrich principles to the second accused's situation, given his insurance position
Decision
Issue 1: Adjournment application
Adamson J acknowledged the Crown's submissions that the accused had been given very considerable notice of the trial date. Despite this, her Honour was satisfied that vacating the trial was necessary in the interests of justice and to preserve the fairness of the trial, particularly for the second accused (at [4]).
Issue 2: The second accused's insurance position
Her Honour expressed dissatisfaction with the state of the insurance arrangements, noting that Chubb had neither released funds nor formally declined indemnity. She characterised this as "most unsatisfactory" and directed that the matter needed to be resolved with Chubb as soon as possible so that the second accused could be represented at trial (at [3]).
Issue 3: Dietrich considerations
No Dietrich application had been made on behalf of the second accused, and her Honour observed that such an application would be unlikely to succeed in any event given his insurance policy. However, her Honour noted that a Dietrich application may need to be made if any further adjournment were granted (at [3]). As for the first accused, the withdrawn Dietrich application left open the possibility that he might ultimately need to appear unrepresented, a scenario her Honour expressly contemplated when indicating she would fix the earliest practicable trial date (at [4]).
Orders Made
- The trial listed for 14 March 2016 was vacated.
Key Takeaways
- The Supreme Court vacated a trial date in the interests of justice and to preserve trial fairness, even where both accused had received approximately ten months' notice of the trial and had not yet secured legal representation (at [4]).
- A Dietrich application by an accused who holds a relevant insurance policy covering legal representation would be unlikely to succeed, as the existence of insurance undermines the basis for such a claim (at [3]).
- Where an insurer has neither paid out under a policy nor formally declined indemnity, a court may characterise that inaction as unsatisfactory and signal that resolution is urgently required to enable an accused to be represented at trial (at [3]).
- Vacating a trial date does not indefinitely defer the question of representation; the court indicated it would fix the earliest possible date and acknowledged that self-representation by at least one accused was a scenario that had to be actively contemplated (at [4]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Dietrich v The Queen (1992) 177 CLR 292