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Supreme Court 11 April 2016

R v Rogerson; R v McNamara (No 43)

[2016] NSWSC 410

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE WHERE CROWN CASE ALL BUT CLOSED EXAMINING WITNESSES ADJOURNMENT OF 3 DAYS GRANTED

Citation: R v Rogerson; R v McNamara (No 43) [2016] NSWSC 410
Court: Supreme Court of New South Wales
Date: 11 April 2016
Judge: Bellew J

Background

This decision arises from an ongoing murder trial involving two accused, referred to here by their roles as the first accused and the second accused (McNamara). Shortly before this application, the second accused had withdrawn instructions from his trial counsel, leaving him unrepresented at a critical stage of proceedings.

In the preceding decision (No 42), Bellew J dismissed a motion seeking an adjournment, separation of the trials, and discharge of the jury. At that point, the prospect of new representation was uncertain. By the following Monday, however, new counsel (Mr Wendler) had been briefed and a solicitor (Mr Abbas) had been retained, making the position more concrete.

New counsel applied for an adjournment of up to ten days to read the trial transcript, review associated material, and obtain instructions from the second accused. The Crown did not oppose some adjournment but sought a shorter period than requested. Counsel for the first accused also accepted that a limited adjournment was appropriate.

  • Whether the trial should be adjourned to allow newly briefed counsel adequate time to prepare, and if so, for how long.
  • How to balance the second accused's interest in legal representation against the competing interests of the jury, the co-accused, and the Crown.
  • Whether the conduct of the solicitor in securing representation had been sufficiently diligent so as to warrant the full adjournment sought.

Decision

Bellew J accepted that it was preferable for the second accused to be represented, and that allowing Mr Wendler to appear served the interests of all parties. The court noted that an unrepresented accused would place a significantly greater burden on the trial judge and created a real risk that something might occur before the jury requiring its discharge.

However, the court was critical of the diligence shown by the solicitor in the days following the earlier adjournment. It took 24 hours for the solicitor to be contacted in the first place, and the solicitor did not visit the second accused in person or contact Mr Wendler until the day the prior motion was heard. The court found these delays unsatisfactory, noting that earlier action could have allowed counsel to use the preceding week for preparation.

The court also took into account the limited work remaining in the Crown case. Only short additional evidence from the officer-in-charge and an analyst remained, and those witnesses had already been extensively cross-examined. The primary task facing new counsel was preparing the second accused's own case, not conducting lengthy cross-examinations. The court also expected that the brief from prior counsel would contain comprehensive instructions and a proof of evidence, reducing the preparation burden considerably.

Weighing all these considerations, Bellew J granted a three-day adjournment rather than the ten days sought. The matter was listed for legal argument on Wednesday and the trial was set to resume with the jury on Thursday morning.

Orders Made

  • The application for an adjournment to 20 April 2016 (or alternatively 18 April 2016) was refused.
  • A three-day adjournment was granted; the trial was adjourned to 10:00am on Thursday 14 April 2016.
  • Legal argument on outstanding evidentiary issues was listed for Wednesday 13 April 2016 at 10:00am.
  • The second accused was requested and recommended, in the strongest terms, to remain at court that day to confer with his legal representatives.
  • Arrangements were made for exhibits to be made available for inspection by the solicitor during business hours prior to Thursday.

Key Takeaways

  • The Supreme Court balanced an accused's right to legal representation against the interests of the jury, the co-accused, and the efficient conduct of the trial, granting a significantly shorter adjournment than sought.
  • Where newly briefed counsel faces little remaining cross-examination and the primary task is preparing the accused's own case, the preparation time required may be substantially reduced.
  • Lack of diligence by a solicitor in securing representation is a relevant factor in assessing how much additional time is warranted, even though that fault does not attach to counsel personally.
  • A concrete proposal for representation, as opposed to an uncertain prospect, weighs more heavily in favour of an adjournment to enable that representation to proceed.
  • The court noted that prior counsel's comprehensive brief was expected to contain detailed instructions and a proof of evidence, which it treated as material to the reduced preparation burden facing incoming counsel.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405