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Supreme Court 15 February 2016

R v Medich (No 3)

[2016] NSWSC 67

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE DIRECTIONS MADE NO POINT OF PRINCIPLE

Citation: R v Medich (No 3) [2016] NSWSC 67
Court: Supreme Court of New South Wales
Date: 15 February 2016
Judge(s): Bellew J

Background

The accused faced a murder trial listed to commence on 11 July 2016, arising from a death that had occurred seven years earlier. The matter came before Bellew J for a directions hearing. No formal application for adjournment of the trial was before the Court, although the accused's solicitors had flagged difficulties in accessing funds to prepare for and conduct the trial.

The funding difficulty arose because the Family Court had frozen the accused's financial assets since January 2011. A 2014 variation of those orders had allowed some access to funds for the criminal proceedings, but the accused's former wife appealed that variation. The Full Court of the Family Court heard that appeal in June 2015, and judgment remained reserved at the time of this hearing.

In the meantime, the accused had filed a further application in the Family Court in December 2015 seeking release of additional funds for his trial. That application had been adjourned pending the reserved judgment. Both senior and junior counsel who had been retained for the trial had raised concerns about the unavailability of funds, and neither had been retained on a secure basis for the July trial.

  • Whether the directions hearing should be conducted in chambers rather than open court, as requested by the accused's solicitors
  • Whether the Court should adjourn pre-trial or trial dates in light of the accused's asserted difficulty in funding his defence
  • What directions were appropriate to advance the matter efficiently toward the listed trial date

Decision

Bellew J rejected the request to hold the hearing in chambers, finding it entirely without merit. There was no reason for the proceedings to take place other than in open court. The Court indicated that any legitimate concern about the accused's right to a fair trial could be adequately addressed through a non-publication order.

On the question of funding, the Court made clear it was not satisfied the accused had taken the issue seriously. Senior counsel's correspondence indicated that funding difficulties had arisen before, yet an email from senior counsel's clerk in February 2016 confirmed the accused had made no serious attempt to rearrange his finances, obtain short-term borrowing, or enter any structured financial arrangement to cover his legal costs, despite knowing about the problem since late 2015.

The Court also noted a significant gap in the accused's approach: his application to the Family Court appeared to assume it would succeed, with no consideration given to what would happen if it did not. Bellew J observed that the death the subject of the trial had occurred seven years earlier, and that the interests of the deceased's family in finality were a legitimate consideration, alongside the accused's right to a fair trial.

The Court also expressed concern that the trial, estimated by the parties to take four months, appeared to be far longer than necessary. A draft notice under section 192 of the Evidence Act, served more than a year earlier to agree on uncontested matters, had received no response from the accused's representatives. Bellew J made directions requiring the accused's solicitor to respond to both the Crown's notice under the Criminal Procedure Act and the outstanding Evidence Act notice, with a view to identifying the real issues at trial.

Orders Made

  • The Crown to serve a notice under ss 141(1)(a) and 142 of the Criminal Procedure Act 1986 (NSW) by 5 pm on 22 February 2016.
  • The accused's solicitor to serve a response to that notice on the Crown and the judge's Associate by 5 pm on 4 March 2016.
  • The accused's solicitor to provide a response to the draft s 192 notice under the Evidence Act 1995 (NSW) by 5 pm on 4 March 2016.
  • The matter listed for further directions on 7 March 2016 at 9.15 am.
  • Pre-trial applications confirmed to commence 2 May 2016.
  • Trial date confirmed for 11 July 2016.
  • Liberty granted to either party to restore the matter to the list on 24 hours' notice.
  • The accused directed to be personally present on all occasions the matter is before the Court.

Key Takeaways

  • The Supreme Court found no basis to hold a directions hearing in chambers simply because the accused's solicitors requested it; the open court principle required the hearing to proceed publicly, with any fair trial concerns addressed through a non-publication order.
  • An inference of inaction was drawn against the accused where there was no evidence that he had taken any steps to arrange alternative funding for his trial, despite having known of the difficulty since late 2015.
  • Where an accused relies on a pending external application to resolve a funding problem, failing to address the possibility that the application might be refused will weigh against any claim that the Court should delay proceedings.
  • The interests of the deceased's family in finality after seven years, while not determinative, formed part of the Court's balancing of considerations against any adjournment of the trial.
  • A failure to respond to a notice under s 192 of the Evidence Act 1995 (NSW), served more than a year earlier to agree on uncontested matters, drew adverse comment from the Court and prompted a directions order requiring a response.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 141, 142, 143
- Evidence Act 1995 (NSW), s 192
- Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases cited: None identified in the judgment.