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Supreme Court 12 July 2016

R v Medich (No 5)

[2016] NSWSC 967

HomicidePublic order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE ACCUSED CHARGED WITH MURDER RELEVANT DISCRETIONARY CONSIDERATIONS APPLICATION REFUSED ADJOURNMENT OF 2 WEEKS GRANTED

Citation: R v Medich (No 5) [2016] NSWSC 967
Court: Supreme Court of New South Wales
Date: 12 July 2016
Judge(s): Bellew J

Background

The accused faced charges of murder, soliciting to murder, and intimidation arising from the shooting death of the deceased outside his home in September 2009. The trial was listed to commence on 11 July 2016, with an estimated duration of three to four months. A trial date had originally been fixed for August 2014 but was vacated following a reserved judgment on a permanent stay application, a subsequent appeal to the Court of Criminal Appeal, and ongoing disputes about the accused's funding of his defence.

At the commencement of proceedings, counsel appeared on a limited retainer solely to apply for a six-week adjournment of the trial to 24 August 2016. The adjournment was sought on two grounds: the unavailability of particular counsel to conduct the defence, and the late disclosure by the Crown of material relevant to its principal witness.

The Crown opposed a six-week adjournment but conceded that the accused was entitled to a short adjournment to consider the recently served material.

  • Whether the trial should be adjourned for six weeks on the basis that the accused's preferred counsel were unavailable to conduct the defence at the scheduled date.
  • Whether late Crown disclosure of relevant material independently justified a six-week adjournment.
  • What weight, if any, case management considerations and the age of the matter should carry in the exercise of the adjournment discretion.

Decision

Bellew J refused the six-week adjournment but granted a two-week adjournment to 25 July 2016, accepting the Crown's concession that some time was warranted to allow the accused to consider the late-served material.

On the counsel availability ground, the court noted that the application was not supported by any affidavit evidence. No material was placed before the court to establish the actual availability of other counsel, or to explain why alternative representation could not be secured. The absence of such evidence significantly undermined the factual foundation of this limb of the application.

On the late disclosure issue, Bellew J acknowledged that the Crown's late service of material was a legitimate concern. However, he concluded that the nature of that material did not warrant anything more than the two-week adjournment, which would provide sufficient time to consider it.

The court gave considerable weight to the length of the procedural history. The deceased had been killed nearly seven years earlier, the trial had been due to proceed as far back as 2014, and there had been a series of applications and delays in the intervening period. The court found that the Crown was entitled to present its case without further delay, and that any further adjournment risked a deleterious effect on witness memory. While case management considerations alone could not dominate the discretion, they remained relevant factors in the exercise of it.

Orders Made

  • The application for a six-week adjournment was refused.
  • The trial was adjourned for two weeks to 25 July 2016.
  • A jury was empanelled and given preliminary directions, with a direction to return on 25 July 2016.
  • The matter was stood over to 25 July 2016, on the understanding that if the accused's foreshadowed appeal to the Court of Criminal Appeal was unsuccessful, the matter could be relisted before Bellew J on 24 hours' notice.

Key Takeaways

  • Refusing the adjournment, the Supreme Court emphasised that bare assertions from the Bar table, unsupported by affidavit evidence, are insufficient to establish the factual basis for a counsel availability application.
  • Where late Crown disclosure is established, the appropriate remedy is an adjournment tailored to the time genuinely needed to consider that material, not a blanket extension sought for other purposes.
  • The age of a matter and its procedural history are relevant discretionary considerations in adjournment applications, even though case management concerns cannot be the dominant factor.
  • A murder charge arising from events almost seven years earlier engaged the court's concern about the ongoing risk of delay to witness memory, which weighed against further postponement of the trial.
  • Under s 5F of the Criminal Appeal Act 1912 (NSW), an accused may appeal against a refusal of an adjournment; Bellew J anticipated that any such appeal would be expedited given the trial date was imminent.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F

Cases:
- Lee v The Queen [2014] HCA 20