R v Macdonald; R v Maitland (No 3) [2022] NSWSC 1209

Supreme Court New South Wales

Medium Neutral Citation: R v Macdonald; R v Maitland (No 3) [2022] NSWSC 1209 Hearing dates: 5 September 2022 Date of orders: 5 September 2022 Decision date: 05 September 2022 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: Matter adjourned until 6 September 2022. Catchwords: CRIMINAL PROCEDURE – trial – adjournment – accused in custody – additional time required with client – application granted Category: Procedural rulings Parties: Regina (Crown) Ian Michael Macdonald (Accused) John William Maitland (Accused) Representation: Counsel: P Hogan (Crown) R Rajalingam (Macdonald)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Michael Bowe Solicitors (Macdonald) J W Maitland (self-represented) File Number(s): 2015/59990; 2015/59940 Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED) 1. HIS HONOUR: The Court proposes to grant the application brought on behalf of Mr Macdonald for an adjournment of this matter until tomorrow. The circumstances leading to the application for the adjournment are set out in the affidavit of Mr Macdonald's solicitor, Mr Michael Bowe, dated 2 September 2022. In short, the affidavit confirms a history, of which I have previously been apprised, involving significant difficulties in the accused Mr Macdonald's representatives having access to Mr Macdonald in order to obtain instructions. It is neither necessary nor appropriate at this stage to seek to explore the reasons for those difficulties. It suffices to say that it appears to have been a combination of matters, including difficulties arising as a result of the COVID-19 pandemic. 2. The net effect of the difficulties is that despite the efforts of Mr Macdonald's solicitor and counsel, they have been unable to participate in a conference with Mr Macdonald up until 1 September 2022. On that date, a phone conference took place. Even then, there were technical issues with the audio line from the gaol at which Mr Macdonald was housed, the Metropolitan Reception and Remand Centre. Given those difficulties attempts were made to book a further conference with Mr Macdonald for the next day. However, that was unsuccessful due to the unavailability of suitable facilities. 3. It hardly needs to be said that in circumstances where an accused faces a trial, particularly a trial of any complexity, it is necessary in order for a fair trial to take place that the accused is able to provide proper instructions to his or her representatives. Despite the efforts of the legal representatives in this case, that has not yet occurred, at least to any reasonable degree. 4. In those circumstances, I regard it as appropriate that the matter be adjourned to enable the representatives to have additional time with their client. 5. In coming to this view, I am also mindful of the fact that ultimately it may well be, and indeed it sounds likely, that there will be some additional efficiency as a result of the delay. I come to that conclusion having been informed that discussions with Mr Macdonald may result in a reduction, and indeed a significant reduction, in the number of witnesses required to be called in the trial. 6. Thus, whilst it is regrettable that the matter is not able to proceed on the day upon which it has been fixed there is certainly, on balance, an advantage to the delay in circumstances where it will reduce the time for trial. 7. For those reasons, it is appropriate that the trial of this matter be adjourned until tomorrow, that is 6 September 2022.