R v Valencia (No 1) [2022] NSWSC 1602

Supreme Court New South Wales

Medium Neutral Citation: R v Valencia (No 1) [2022] NSWSC 1602 Hearing dates: 21 November 2022 Date of orders: 21 November 2022 Decision date: 23 November 2022 Jurisdiction: Common Law Before: Yehia J Decision: The application to vacate the trial date is granted Catchwords: CRIMINAL LAW – Accused charged with murder – Judge alone trial – Defence application to vacate trial date – Adjournment necessary to engage new counsel and to obtain report from forensic pathologist – Application to vacate granted Cases Cited: MS v R [2017] NSWCCA 252 Category: Procedural rulings Parties: Hector Enrique Valencia (Applicant) Rex (Respondent) Representation: Counsel: S Schaudin (Applicant) C Everson SC (Respondent)

Solicitors: James & Jaramillo Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2020/00043308

Judgment 1. The accused, Hector Enrique Valencia, is charged that, between 7 November 2020 and 14 November 2020, he did murder Kim McRae. He has pleaded not guilty. The trial was listed to commence on 21 November 2022. 2. The accused elected to be tried by judge alone. The Crown consented to that application. I made an order that the trial proceed as a judge alone trial on 14 October 2022. The proceedings came before me for a direction hearing on 20 September 2022 and 6 October 2022. On each occasion, the parties then appearing confirmed the trial was ready to proceed. The issue in the trial was then identified as excessive self-defence. 3. By email, dated 16 November 2022, at 3:00pm, the Court was notified that the accused had withdrawn his instructions from both his solicitor, Mr Ekstein, and barrister, Mr Dalton SC. The matter was listed urgently before me at 2:00pm, on 17 November 2022. Mr Dalton SC and Mr Ekstein appeared on an amicus basis. Also present by way of audio-visual link was Mr Robinson from the Legal Aid Grants Division. 4. Mr Jaramillo, solicitor, attended. On 10 November 2022, the accused contacted, or had arranged contact on his behalf with, Mr Jaramillo. On 14 November 2022, Mr Jaramillo conducted an audio-visual conference with the accused where the accused confirmed that he wanted new legal representation. At the mention, on 17 November 2022, I expressed my view that all reasonable efforts should be made to obtain alternative counsel. By Notice of Motion, filed on 18 November 2022, the accused applied to vacate the trial. On 21 November 2022, Mr Schaudin, briefed only on this application, moved on the Notice of Motion to vacate the trial. 5. The grounds for the application are as follows: 1. Firstly, Mr Jaramillo has been unsuccessful in securing alternative counsel to conduct the trial. The Public Defenders' Chambers have been contacted without success. Ms Moore, Junior Solicitor at James & Jaramillo Legal Pty Ltd, has been corresponding with 19 different chambers to obtain counsel for this matter without success. The details of those inquiries are set out in Ms Moore's affidavit evidence. 2. Secondly, and unsurprisingly, Mr Jaramillo deposes that he does not have the capacity to digest the 4795-page brief of evidence served on him in the few short days that he has had. 3. Thirdly, the Defence now wants to engage Professor Duflou, Forensic Pathologist, to provide a report that may be relevant to the issue of causation. Mr Jaramillo deposes that some of the material in the brief suggests that: "The deceased was suffering from cardiac arrhythmias at the time of his death but was not engaged with western medical treatment, preferring the eastern/holistic approach. The medical records provided suggest that the deceased was suffering from atrial fibrillation dating back at least to October 2019. It is further noted that in the material that the deceased was not keen for anticoagulation or long-term anti-arrhythmias." Professor Duflou has been contacted. He can provide a report four weeks after he receives the relevant material which includes the deceased's previous medical records.