Citation: R v Macdonald; R v Maitland (No 3) [2022] NSWSC 1209
Court: Supreme Court of New South Wales
Date: 5 September 2022
Judge(s): Dhanji J
Background
The accused, Mr Macdonald, was in custody awaiting trial on what the judgment describes as a matter of some complexity. His legal representatives had experienced significant ongoing difficulties in obtaining instructions from him prior to trial.
Those difficulties included disruptions caused by the COVID-19 pandemic and problems with audio facilities at the Metropolitan Reception and Remand Centre, where Mr Macdonald was held. A phone conference on 1 September 2022 was hampered by technical issues, and a follow-up conference the next day could not proceed due to unavailability of suitable facilities at the gaol.
With the trial about to commence, Mr Macdonald's solicitor, Mr Michael Bowe, filed an affidavit dated 2 September 2022 explaining the access difficulties. His legal team applied for a short adjournment to allow them to confer properly with their client before the trial began.
Legal Issues
- Whether the trial should be adjourned to allow the accused's legal representatives sufficient time to obtain instructions from their client, in circumstances where access had been repeatedly frustrated.
Decision
Dhanji J granted the adjournment, adjourning the trial to the following day, 6 September 2022. His Honour accepted that, despite genuine efforts by Mr Macdonald's solicitor and counsel, no adequate conference with the accused had yet taken place. The court noted that a fair trial requires an accused to be able to give proper instructions to his or her representatives, and that this basic requirement had not been met.
His Honour also took into account a practical benefit flowing from the delay. Discussions with Mr Macdonald were likely to result in a significant reduction in the number of witnesses required at trial, meaning the short adjournment was expected to produce efficiency gains that would shorten the overall proceedings.
Balancing the regret at losing a day of hearing time against those likely efficiency gains, and the fundamental requirement of a fair trial, the court concluded the adjournment was clearly appropriate.
Orders Made
- The trial was adjourned to 6 September 2022.
Key Takeaways
- The Supreme Court confirmed that an accused person's ability to give proper instructions to legal representatives is a prerequisite for a fair trial, particularly in complex matters.
- Where repeated access difficulties, including those caused by COVID-19 and gaol infrastructure constraints, have prevented adequate legal consultation, a short adjournment to remedy that deficit is appropriate.
- Practical considerations, such as the prospect of a significantly reduced witness list following a proper conference, can weigh in favour of granting an adjournment even where a hearing date is lost.
- The court did not examine the underlying reasons for the access difficulties in detail, treating it as sufficient that the difficulties were established and that the accused's right to adequate legal consultation had not yet been met.
Legislation and Cases Referenced
Legislation: None cited.
Cases: None cited.