PHILLIP YISRAEL v DISTRICT COURT OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 29 January 1996 [1996] NSWCA 572 Priestley JA. In this matter I had looked at the file earlier and noticed that it was listed last year some time, and then circumstances, it would seem, were put to the court at that time for the granting of an adjournment. It was stood out of the list and was listed for tomorrow. Mr Yisrael had problems with counsel on the earlier occasion. I understand the pro bono service run by the Bar resulted in his having Mr Vincent briefed, who had reached the stage of preparing written submissions which were prepared last December, I think, in good time, and was available for the hearing tomorrow until he was taken ill last week. His being taken ill has made it impossible for him to appear tomorrow. This means that if the case were to proceed tomorrow, other counsel would have to be briefed. From what Mr Nock, who appears for Mr Yisrael this afternoon for the purpose of making an application for adjournment of tomorrow's proceedings, has told me, I gather it would have been possible for the pro bono service to brief somebody today to appear in the appeal tomorrow. Mr Yisrael's instructions to Mr Nock, however, are that he is concerned that anybody briefed today would not be able to be in a positionby tomorrow morning to put the case fully and completely. As I indicated a little earlier, I do not agree with that view of this case. I do see that it is a view which it is not unreasonable for Mr Yisrael as a layman to have. It is not his fault that his counsel has become ill. It is not unreasonable for him to want counsel to have more time to prepare than would be possible if preparation began now, even although I do not agree that it is necessary for tomorrow's matter to be adjourned in order to have counsel properly ready to present the appeal tomorrow. The Director of Public Prosecutions does not oppose the application. The only reason for hesitating in granting the application is that granting it will mean that the time set aside for this matter tomorrow will now be lost to other litigants. In the circumstances, however, I think it is appropriate for the matter to be stood out of tomorrow's list, and I make that order. In view of the congestion of the court's list and the desire of a great many other litigants to be heard in their appeals as soon as possible, it seems unlikely that a hearing of this matter will be obtained this year. However, from my look at the papers this would be a short appeal, Mr Nock, would it not, a couple of hours? NOCK: I cannot even assist your Honour in that respect. I have not seen the papers and have not made any enquiry into any more than just the basic type of appeal it was. HIS HONOUR: What was your estimate? LANGLEY: That was the estimate we gave to the Registrar. We felt it would be very short. We felt that it was a short point being raised. 2 UNREPORTED JUDGMENTS HIS HONOUR: There seem to be two points, from what I can make out; there is the right to silence point, and whether or not that was waived, classing that as one point, and the Craig point, which has arisen since the decision of the High Court in August last year. LANGLEY: That is correct, your Honour, both of which we believe would be dealt with shortly. HIS HONOUR: It may be that it can go into some list of short appeals at some time but I cannot predict what will happen to it. It will simply have to go back into the list to be called over before the Registrar at some point. The only order I make today is: stood out of tomorrow's list, and the costs of today's application and tomorrow will be reserved for the court which finally disposes of the matter. NOCK: There was one matter where I hope I did not mislead you. We did not make any further enquiries after we received instructions from Mr Yisrael not to brief fresh counsel; so as far as whether there were counsel available today or not, we literally do not know because we were not instructed to do that. HIS HONOUR: I leave that to be included in the reasons that are published. T only add to it that, taking into account what you say, I would still have assumed that it would have been possible to get somebody on a pro bono basis today. Orders accordingly.