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Supreme Court 3 July 2019

R v Munshizada; R v Danishyar; R v Baines (No 2)

[2019] NSWSC 834

Homicide
CRIMINAL PROCEDURE APPLICATION TO VACATE TRIAL DATE

Citation: R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834
Court: Supreme Court of New South Wales
Date: 3 July 2019
Judge(s): Fagan J

Background

Three accused faced a joint trial on two counts of murder, relating to deaths in September and November 2016. They had been in continuous custody since their arrest in November 2016. The trial was listed to commence on 8 July 2019 with a Crown estimate of four months.

The case had a lengthy pre-trial history, including joinder disputes, coincidence evidence arguments, and a separate trial of a key witness who was himself charged with one of the murders. Those interlocutory proceedings significantly disrupted the timetable and delayed the preparation of trial counsel.

On the eve of the trial date, all three accused applied to vacate the listing on the ground that they had been unable to secure legal representation for the trial. Their solicitors held the briefs but were not in a position to conduct the trial themselves given its length and complexity.

  • Whether the trial date should be vacated on the basis that the accused had been unable to engage counsel to represent them at trial
  • Whether proceeding without legal representation in a serious criminal trial of this nature would render the trial unfair, engaging the principles in Dietrich v The Queen (1992) 177 CLR 292
  • Whether the inability to brief counsel arose from circumstances that were genuine and not the fault of the accused

Decision

Fagan J was satisfied that all three accused had genuinely been unable to engage counsel for the trial and that it was not feasible for their solicitors to conduct the defence themselves. The court accepted that this was not a situation of the accused's own making, distinguishing it from cases where a failure to secure representation results from the accused's own delay or indifference.

Applying Dietrich v The Queen, Fagan J held that proceeding unrepresented in a trial of this seriousness and complexity would be unfair to the accused. The majority in Dietrich had confirmed that adjournment is the appropriate remedy in all but exceptional cases where an accused charged with a serious offence cannot obtain representation. This was not such an exceptional case.

The court identified the underlying structural problem as a breakdown in the economic relationship between Legal Aid NSW and the private Bar. Solicitors had not sought to engage Legal Aid counsel at an earlier stage, partly because the accused had privately funded the pre-trial applications in order to retain preferred counsel unwilling to appear at Legal Aid rates. When Legal Aid briefing was eventually required for the trial itself, no counsel was available at those rates on the timeframe available.

Fagan J made pointed observations about the systemic consequences of this dysfunction. The adjournment wasted the time of the trial judge, court staff, a specially summoned jury panel, the Crown legal team, and multiple police witnesses. The accused would remain on remand for approximately another eight months, bringing their total pre-trial custody to around three and a half years. Other matters in the criminal list were displaced as a result.

Orders Made

  • The trial listed for 8 July 2019 was vacated.
  • The accused were directed to appear before the list judge on 12 July 2019 for the purpose of refixing the trial in 2020.

Key Takeaways

  • Dietrich v The Queen requires that, where an accused charged with a serious offence cannot obtain legal representation through no fault of their own, adjournment is the appropriate remedy except in truly exceptional cases. Fagan J applied that principle here without qualification.
  • The Supreme Court found that the failure to brief Legal Aid counsel at an early stage, combined with the decision to privately fund interlocutory proceedings using counsel unwilling to appear on Legal Aid rates, contributed materially to the representational crisis at trial.
  • A systemic dysfunction was identified between Legal Aid NSW and the private Bar regarding fees for long, complex criminal trials. Fagan J noted that potential remedies include increasing Legal Aid rates, expanding the public defender service, or prioritising public defenders for matters that are difficult to place with the private Bar.
  • The waste generated by a late vacation of a four-month trial is substantial: reserved judicial time, a jury panel, Crown counsel, and police witnesses are all committed and then lost. Fagan J observed that the public interest in prompt resolution of serious criminal charges was significantly frustrated.
  • Even the Crown submitted it would be disadvantaged by proceeding against unrepresented accused in a matter of this complexity, underscoring that competent defence representation serves the interests of procedural efficiency as well as fairness.

Legislation and Cases Referenced

Cases:
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- R v Munshizada (No 1) [2019] NSWSC 293

Legislation:
No specific legislation was cited in the decision text provided.