Citation: R v Karaali (No 4) [2023] NSWSC 232
Court: Supreme Court of New South Wales
Date: 6 February 2023
Judge: Campbell J
Background
The accused faced a charge of murder and had been in custody on remand since approximately 25 February 2020, a period of almost three years at the time of this judgment. The case had a troubled procedural history, with pandemic-related disruptions causing repeated postponements, including delays caused by both the accused and the judge testing positive for COVID-19.
Jury empanelment eventually began on or about 3 August 2022, but pre-trial legal rulings made on 8 August 2022 required the defence to obtain expert evidence about telephone records, described by the court as significant to the case. The jury was discharged at that point to give the defence an opportunity to secure that evidence.
When the matter was listed to commence trial on 7 February 2023, the defence expert report had still not been obtained. A suitable expert (Dr Watt) had been identified in October 2022, a provisional quote had been received in December 2022, but the Legal Aid Commission did not grant the necessary funding until 3 February 2023, just days before the scheduled trial commencement.
Legal Issues
- Whether the trial should be adjourned to allow the defence to obtain independent expert evidence about telephone records, given the very recent grant of legal aid funding
- Whether the interests of justice warranted further delay despite the accused having already been on remand for nearly three years
Decision
Campbell J was satisfied that the defence solicitor, Ms Le, had exercised all due diligence and had gone beyond ordinary professional obligations in pursuing both the expert engagement and the legal aid funding. Despite being told by Legal Aid officers to wait for their call, she continued to pursue the matter actively, and the grant was ultimately secured only because of that persistence.
The court acknowledged the serious tension between the accused's lengthy time on remand and the necessity of allowing him a proper opportunity to obtain his own expert evidence on a significant issue in the trial. However, Campbell J concluded that the adjournment was unavoidable and was in the interests of justice, noting that the Crown did not dispute the fairness of the defence's position.
To minimise further delay, the court adopted a tight case management approach. Given that Dr Watt's agency had indicated the expert could produce a report within seven days, the court listed the matter for case management directions on 13 February 2023, with the expectation that the trial could commence by 15 February 2023.
Orders Made
- The 7 February 2023 trial commencement date was vacated
- The sheriff was directed to postpone marshalling a jury panel
- The matter was listed for case management directions before Campbell J on 13 February 2023 at 9:30am
- The trial was relisted to commence on 15 February 2023
- The accused was directed to remain in custody on remand, with orders for his personal attendance at court on 15 February 2023 (unless that date was vacated)
- The accused was excused from attendance at the 13 February 2023 mention
Key Takeaways
- Where critical expert evidence cannot be obtained before trial through no fault of the accused or their legal representatives, an adjournment to secure that evidence may be in the interests of justice, even where the accused has already been on remand for a considerable period.
- Delays in legal aid funding approval can constitute a legitimate basis for an adjournment, particularly where the defence solicitor has demonstrated sustained and diligent efforts to obtain approval.
- The Supreme Court emphasised that Crown expert evidence served late on the defence had contributed materially to the situation, giving added weight to the defence's entitlement to time to respond with its own expert opinion.
- Tight case management, rather than an open-ended adjournment, was the preferred mechanism for balancing the competing considerations of expedition and procedural fairness.
- A period of nearly three years on remand awaiting trial was characterised by the court as unsatisfactory by reference to the Court's own key performance indicators for serious criminal matters.
Legislation and Cases Referenced
Cases:
- R v Karaali (No 2) [2022] (ruling of 8 August 2022, referenced in the judgment)
- R v Karaali (ruling of 9 August 2022, referenced in the judgment)
No specific legislation was cited in the provided text of this judgment.