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Supreme Court 31 January 2019

R v Warwick (No.63)

[2019] NSWSC 41

Public order & justice offences
CRIME PRACTICE AND PROCEDURE WHERE RETAINER HAS BEEN TERMINATED WHERE LEAVE TO WITHDRAW WAS NOT PRESSED INTERESTS OF JUSTICE NO POINT OF GENERAL PRINCIPAL.

Citation: R v Warwick (No.63) [2019] NSWSC 41
Court: Supreme Court of New South Wales
Date: 31 January 2019
Judge(s): Garling J

Background

This decision arose on the hundredth day of a complex criminal trial. The accused's solicitor, together with his firm, had terminated their retainer the day before the resumption of hearing evidence, after 99 days of proceedings. The solicitor then appeared on a limited pro bono basis solely to argue for an adjournment.

Two orders were sought by Notice of Motion: leave for the solicitor to withdraw, and an adjournment of at least twelve weeks. The withdrawal application was ultimately not pressed. The central dispute became the length of the adjournment, with the accused seeking twelve weeks and the Crown proposing a period to 25 February 2019.

Both parties accepted that some adjournment was necessary, given the accused was now unrepresented in the middle of a part-heard trial. The court was required to determine the appropriate period and the procedural steps to follow.

Legal Issues

  • Whether the solicitor required the court's leave to withdraw from the proceedings
  • Whether an adjournment was necessary given the accused's loss of legal representation mid-trial
  • What length of adjournment was appropriate in the circumstances
  • Whether the court should refrain from fixing a new trial date until after any application for a temporary stay (under the principles in Dietrich v The Queen) had been determined
  • What procedural framework should govern any Dietrich stay application and the resumption of the trial

Decision

Issue 1: Application for leave to withdraw

The solicitor did not press the application for leave to withdraw. Garling J noted that, had it been pressed, the accused would have needed to be heard separately because his interests may not have coincided with those of his solicitor. The court also observed that it had not been adequately informed about compliance with the relevant professional obligations, including those under r 13 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015. No further consideration of the withdrawal application was therefore required (at [9]-[10]).

Issue 2: Whether an adjournment was necessary

Both parties accepted an adjournment was necessary because the accused was unrepresented and had not appointed alternative legal representation (at [12]). The court noted that lay observations about the accused's apparent depressive disorder did not constitute expert medical evidence sufficient to raise any concern about fitness to stand trial (at [15]).

Issue 3: Length of the adjournment

Garling J rejected the twelve-week adjournment sought by the accused. An almost six-month interruption to a part-heard trial, with at least one witness's evidence only partly complete, would be unacceptable. The court also noted that the accused's solicitors had not yet begun preparing submissions to the Attorneys-General and those submissions were not even in draft form, meaning there was no certainty that twelve weeks would suffice to resolve the funding question (at [20], [39]-[40]). The court also observed that the accused already had the Crown brief in electronic form for over six months and had computer access for most of each day (at [43]).

Issue 4: Fixing a trial date before the Dietrich application

The accused's fall-back position was that no trial date should be fixed until after a Dietrich temporary stay application was determined. Garling J rejected this, finding it would amount to an indefinite adjournment, contrary to the interests of the efficient administration of justice (at [34]). Instead, the court fixed the trial to resume on 11 March 2019, a period of just over five weeks, sufficient to allow documents to be provided and for the accused to prepare to conduct his own defence if the stay application failed (at [47]).

Orders Made

  • Trial adjourned to 10am on 11 March 2019
  • Directions hearing fixed for 10am on 4 March 2019, with the accused present, to address administrative and custodial matters
  • Crown to notify Corrective Services of the directions hearing and request a senior officer with relevant authority to attend
  • Any Dietrich stay motion, supporting affidavits (in admissible form), and submissions to be filed and served by 4pm on 7 February 2019, with service on the DPP and the NSW Attorney-General
  • Responding affidavits and submissions to be filed and served by 10am on 13 February 2019
  • Reply evidence to be filed by midday on 15 February 2019
  • Stay motion listed for hearing before Garling J at 10am on 18 February 2019, with one day allocated and each party limited to 2.5 hours of oral submissions
  • Hard copies of all filed documents to be provided to Garling J's chambers
  • Liberty to apply to relist on 24 hours' notice
  • Accused to attend the 18 February 2019 hearing by AVL, remanded in custody as necessary

Key Takeaways

  • Lay observations by a solicitor and their partner that an accused appeared to be suffering from a depressive disorder were insufficient to raise any question of fitness to stand trial; expert medical evidence is required before such a conclusion can be considered (at [15]).

  • Where a solicitor terminates a retainer mid-trial, a court's leave to withdraw is not automatically required, but had leave been sought, the accused would have needed to be heard separately given potentially diverging interests, and the court would have needed to be properly informed about compliance with professional conduct obligations (at [9]-[10]).

  • A Dietrich stay, if granted, operates as a temporary rather than permanent stay, limited until legal representation is arranged; the mechanism does not permanently halt proceedings (at [28]).

  • Refusing to fix any resumption date pending a Dietrich stay application amounts to an indefinite adjournment and is contrary to the efficient administration of justice (at [34]).

  • In balancing fairness to an unrepresented accused against expedition in a long-running criminal trial, the Supreme Court struck a middle path between the parties' proposed timeframes, fixing a period of just over five weeks to allow document provision, preparation, and hearing of the stay application, while making plain that if the stay application failed the trial would resume promptly (at [47]).

Legislation and Cases Referenced

Legislation
- Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015

Cases
- Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292