Citation: R v Nour (No 1) [2017] NSWDC 390
Court: District Court of NSW
Date: 29 June 2017
Judge(s): Neilson DCJ
Background
The accused faced two charges arising from an incident on 20 December 2014 at Bankstown: assault occasioning actual bodily harm against his de facto wife, and aggravated kidnapping of the same complainant. The matter had a lengthy procedural history spanning more than two years, including one prior vacated trial, multiple mentions, and several changes of legal representation.
The accused had been represented by Legal Aid-appointed counsel and a solicitor from Allied Lawyers at Auburn. On the morning of 28 June 2017, after the jury had already been empanelled the previous day, the accused withdrew his instructions from both his barrister and his instructing solicitor. Neither was prepared to continue acting without the accused's instructions.
By 11.40am on 28 June 2017, the accused applied for an adjournment so he could seek fresh legal representation. The adjournment application was argued over the remainder of that day and into the following morning before Neilson DCJ delivered his ruling.
Legal Issues
- Whether the court should exercise its discretion under s 40(1) of the Criminal Procedure Act 1986 to adjourn criminal proceedings after the jury had been empanelled
- How to balance the accused's right to a reasonable opportunity to prepare and present his case against the public interest in the expedition of criminal trials
- Whether the accused's self-created loss of representation amounted to sufficient justification for a further adjournment
Decision
The applicable framework: The court confirmed that granting or refusing an adjournment is a matter within the trial judge's discretion under s 40(1) of the Criminal Procedure Act 1986. The discretion requires the court to weigh both the interests of the accused and the broader interests of justice (at [1]-[2]). While procedural fairness demands that an accused have a reasonable opportunity to prepare and present his case, some limitation must be placed on the right to delay a trial for that purpose (at [2]).
The accused's conduct: The court found that the accused was the author of his own predicament. The case had been confirmed as trial-ready by experienced criminal lawyers, and at no point before the accused terminated his lawyers' retainer had the matter been flagged as unready (at [26]). The court also noted a pattern of the accused either terminating lawyers' retainers or having lawyers withdraw, and concluded there appeared to be a desire to avoid the trial proceeding (at [28]).
Prejudice to the complainant and the public interest: The court gave significant weight to the fact that over two and a half years had elapsed since the alleged offences and eighteen months since committal (at [23]). The complainant had already waited two and a half years to have her evidence heard by a jury, and a further adjournment would extend that to approximately three and a half years (at [24]). With the jury already empanelled, a further adjournment would require discharge of the jury and a new trial date approximately twelve months away (at [23]).
The complexity of the case: The court observed that the charges were not legally or factually complex, did not involve difficult issues such as identification, accounting, or medical evidence, and that the accused had demonstrated in submissions that he understood the issues and could participate in the trial process (at [29]). These findings weighed against the need for further time to obtain legal representation. The adjournment application was refused (at [29]).
Orders Made
- Application for adjournment refused
Key Takeaways
- The District Court confirmed that an adjournment application in criminal proceedings engages a discretion under s 40(1) of the Criminal Procedure Act 1986, to be exercised by reference to both the interests of the accused and the interests of justice more broadly (at [1]-[2]).
- Where an accused terminates legal representation without adequate justification on the morning of trial, the court is entitled to treat the accused as the author of their own predicament and to refuse an adjournment on that basis (at [26]).
- A strong public interest exists in the expedition of criminal trials once fixed for hearing, and that interest is reinforced by the case management provisions in the Criminal Procedure Act 1986 (at [2]).
- Refusing the adjournment, the court weighed the impact on the complainant, who had already waited two and a half years to give evidence, against the accused's unilateral decision to end his legal representation at a late stage (at [23]-[24]).
- The relative simplicity of the charges is a relevant consideration: where a case is not legally or factually complex and the accused has demonstrated an ability to understand the issues, the absence of counsel weighs less heavily in favour of an adjournment (at [29]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Mental Health (Forensic Provisions) Act 1990
Cases
- Jamal v DPP [2013] NSWCA 355
- R v Alexandroia (1995) 81 A Crim R 286
- R v Barca (19 August 1978, unreported)
- R v Cox [1960] VR 665
- Slotboom v R [2013] NSWCCA 18