Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 7) [2019] NSWSC 1916
Court: Supreme Court of NSW
Date: 9 August 2019
Judge: Fullerton J
Background
Three co-accused faced a joint trial on a common law conspiracy charge. The prosecution alleged that between September 2007 and January 2009, a former Minister for Primary Industries and Mineral Resources agreed with two other men to wilfully misconduct himself in connection with the granting of a coal exploration licence, for the improper purpose of benefiting the other accused and their family members or associates.
The trial had a chequered pre-trial history. An earlier conviction of one accused on separate charges had been overturned; extensive pre-trial hearings reduced the Crown brief substantially; and successive trial dates had been vacated. By the time of this judgment, the trial was listed to commence on 12 August 2019, with an estimate of 23 weeks.
Two of the three accused applied by notices of motion for a temporary stay. One, a serving prisoner managing type 2 diabetes, sought a stay until his anticipated parole release in February 2020. The other, who had recently undergone abdominal surgery and whose entire legal team had withdrawn without prior notice, sought a stay on both medical grounds and on the ground that he needed additional time to prepare to represent himself.
Legal Issues
- Whether the ill health of each accused rendered proceeding with the trial on the listed date unfair, warranting a temporary stay.
- Whether a serving prisoner's custodial circumstances and health management needs would prevent him from fairly participating in a lengthy trial.
- Whether the unrepresented accused's medical condition, in particular his gastrointestinal complaints, made commencement of trial on the listed date unfair.
- Whether the unrepresented accused required additional time to prepare for self-representation, and if so, how much.
Decision
Issue 1: Temporary stay on medical grounds for the accused in custody
Fullerton J rejected the application for a stay until parole release. The Commissioner of Corrective Services provided detailed information confirming that the accused would be housed in a single cell at a metropolitan facility, transported to court daily by a dedicated medical escort, and would have his insulin administered and blood sugar levels monitored by Justice Health adjacent to his accommodation. Adequate arrangements were also confirmed for him to bring dietary items to court. The court was not satisfied that, with those arrangements and the court's ongoing jurisdiction to manage his health needs during trial, proceeding would render the trial unfair (at [53]-[54]). The court acknowledged genuine concerns about the risk of deteriorating diabetic stability and cognitive fatigue expressed by the treating forensic psychiatrist, but considered those concerns might dissipate after a period of adjustment to the new regime (at [50]-[51]).
Issue 2: Temporary stay on medical grounds for the unrepresented accused
The unrepresented accused's application focused on faecal urgency and incontinence arising from excessive self-administered laxative use following hernia surgery. The Crown's expert gastroenterologist gave evidence that reducing the intake of laxatives, under medical supervision over two to three weeks, would resolve the urgency. The accused accepted that advice and agreed to seek his general practitioner's assistance with a monitored reduction (at [65]). A subsequent report confirmed he had done so. The court was satisfied that adequate public toilet facilities existed along his public transport route to court and that arrangements could be made with the Sheriff to reassign nearby facilities at the court complex (at [69]). The application to delay the trial for the accused to pursue an experimental Faecal Microbiota Transplantation program was rejected, as the treatment's efficacy was unestablished, the accused had not even begun the candidacy assessment process, and 37 other patients preceded him (at [68]).
Issue 3: Temporary stay to allow preparation for self-representation
The court accepted that some additional time was warranted, but not the four months sought. The accused had been on notice since at least April 2019 that his pro bono counsel could not continue beyond September 2019, and the court found he should have been preparing for self-representation since at least the time his notice of motion was filed in early July 2019 (at [72]). He had also been encouraged repeatedly by the court to continue preparing on the basis the trial would proceed. Critically, the court found that the accused possessed intimate familiarity with the Crown case, having been represented during extensive ICAC public hearings between 2011 and 2013 on the same subject matter, and having received substantial legal advice and assistance throughout the criminal proceedings since his 2015 charge (at [73], [85]). The Crown brief, case statement, and witness contact details had all been delivered to him (at [78]-[80]). The public interest in maintaining momentum for serious allegations against two former Members of Parliament, after a lengthy pre-trial process, weighed against a longer adjournment (at [83]). The court allowed seven weeks from 8 August 2019, relisting the trial to commence on 30 September 2019 (at [83]-[84]).
Orders Made
- The notices of motion filed on 21 June 2019 and 4 July 2019 are dismissed.
- The unrepresented accused's application for a temporary stay to allow trial preparation is granted in part.
- The trial date of 12 August 2019 is vacated.
- The trial is relisted to commence on 30 September 2019.
Key Takeaways
- A temporary stay of a criminal trial requires more than evidence that an accused has medical conditions that may affect optimal participation; the court must be satisfied the trial would actually be unfair if it proceeded (at [54]).
- Where custodial authorities can make adequate and specific arrangements to manage a serving prisoner's medical needs during trial, those arrangements may be sufficient to defeat a stay application based on health grounds, even where treating experts have expressed concern about deterioration (at [53]-[54]).
- In assessing the adequacy of preparation time for an unrepresented accused, a court may take into account that accused's pre-existing familiarity with the Crown case, the length and quality of prior legal representation, and the evidence already delivered to that person (at [73], [85]).
- An accused who knows months in advance that legal representation is likely to end cannot obtain a lengthy stay by pointing to unpreparedness for self-representation, particularly where the court has repeatedly urged ongoing preparation (at [72]).
- The public interest in maintaining the momentum of a complex trial involving serious allegations of misconduct in public office is a legitimate factor weighing against granting an extended adjournment (at [83]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
Cases
- Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
- Macdonald v R; Maitland v R [2016] NSWCCA 306
- Maitland v R; Macdonald v R [2019] NSWCCA 32
- R v Moses Obeid; R v Macdonald; R v Edward Obeid (No 4) [2019] NSWSC 1286)