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Supreme Court 8 April 2016

R v Rogerson; R v McNamara (No 42)

[2016] NSWSC 405

Public order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE FURTHER ADJOURNMENT OF THE TRIAL SOUGHT APPLICATION REFUSED CRIMINAL LAW PRACTICE AND PROCEDURE ACCUSED

Citation: R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405
Court: Supreme Court of New South Wales
Date: 8 April 2016
Judge: Bellew J

Background

Two accused were standing trial jointly before a jury on serious criminal charges. The trial commenced on 1 February 2016, with an original estimate of three months, later revised to four months. By early April 2016, the trial was in its tenth week and the Crown case was almost complete.

On 4 April 2016, at the point where the accused McNamara was expected to commence his defence case, his counsel (a Deputy Senior Public Defender) announced that her instructions had been withdrawn and sought leave to withdraw from the trial. Shortly afterward, McNamara's solicitor also advised that his instructions had been withdrawn, and he too was granted leave to withdraw. McNamara was left unrepresented, acknowledging in court that he had withdrawn instructions on the basis of legal advice.

McNamara, through subsequently engaged counsel appearing on the motion only, filed a notice of motion seeking, in order of preference: an adjournment until 22 April 2016; a separate trial; a discharge of the jury; or, as a fourth alternative, an adjournment to the following Monday. The Crown and co-accused Rogerson both opposed all orders sought.

  • Whether the trial should be adjourned to allow McNamara to engage new counsel, in circumstances where no counsel had been identified as available
  • Whether the joint trial should be severed so that McNamara could be tried separately, given that he was now unrepresented
  • Whether the jury should be discharged, balancing McNamara's interest in representation against competing interests including the progress of the trial, the jury's commitment, public expense, and the position of the co-accused

Decision

Adjournment: Bellew J refused the adjournment application. McNamara had been given an opportunity to obtain new counsel from 4 April but the search had yielded no result. No evidence had been placed before the court explaining the circumstances in which instructions were withdrawn. The jury had already been absent for a week without hearing evidence. His Honour found the proposal to adjourn for a further one to two weeks was "redolent with uncertainty" and served no purpose.

Separate trial: The application for severance was refused. Bellew J had previously addressed and refused a separate trial application in R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965, concluding that the circumstances of the case required a joint trial. His Honour found that nothing had changed to warrant revisiting that conclusion.

Jury discharge: Bellew J refused to discharge the jury after weighing a range of competing factors. The trial had run for ten weeks, the Crown case was all but closed, and the jury had demonstrated consistent commitment. The co-accused Rogerson was privately funding his defence (not legally aided) and was entitled to have the trial against him proceed. The circumstances giving rise to McNamara's unrepresented status were of his own making, and he had adduced no evidence to explain or justify why instructions were withdrawn. The balance of considerations firmly favoured the trial continuing.

His Honour ordered that the trial proceed before the jury on the following Monday, with McNamara unrepresented.

Orders Made

  • The notice of motion was dismissed.
  • The trial was to proceed before the jury at 10am on Monday 11 April 2016.

Key Takeaways

  • A mid-trial withdrawal of instructions, in circumstances where the accused himself chose to terminate the retainer and adduced no evidence explaining that choice, does not automatically entitle the accused to an adjournment, separate trial, or jury discharge.
  • The length of a trial already completed is a significant factor in the jury discharge discretion. Ten weeks of proceedings, with the Crown case nearly closed, weighed heavily against starting again.
  • Where a separate trial has already been refused and no change in circumstances is demonstrated, a further application for severance based solely on the accused becoming unrepresented will not succeed.
  • The interests of a co-accused, particularly one privately funding a joint trial, are a legitimate consideration in the jury discharge analysis. Fault for the disruption did not lie with Rogerson, reinforcing the court's conclusion that the trial should continue.
  • Refusing an adjournment application is consistent with established principles where the prospect of obtaining representation within the proposed timeframe is speculative and no concrete alternative counsel has been identified.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- BK v The Queen [2000] NSWCCA 4; (2000) 110 A Crim R 298
- Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
- Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
- R v Gilfillan [2003] NSWCCA 102
- R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965
- R v Rogerson; R v McNamara (No 14) [2015] NSWSC 1157