New South Wales Supreme Court CITATION : R v Ngo [2001] NSWSC 887 CURRENT JURISDICTION: Common Law Divison Criminal FILE NUMBER(S) : SC 70086/98 HEARING DATE(S) : 10 October 2001 JUDGMENT DATE : 10 October 2001 PARTIES : Regina (NSW) Phuong Canh Ngo - Prisoner JUDGMENT OF : Dunford J COUNSEL : MG Tedeschi QC - Crown PJ Pearsall - Prisoner SOLICITORS : SE O'Connor - Crown LMG Solicitors & Attorneys - Prisoner CATCHWORDS : CRIMINAL LAW & PROCEDURE - Application for adjournment of sentencing proceedings - counsel unavailable DECISION : Application for adjournment refused. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL 70086/98 Dunford J Wednesday, 10 October 2001 R v Phuong Canh NGO Judgment (On application for adjournment) 1 His Honour: On Friday 29 June last the jury found the prisoner, Phuong Canh Ngo, guilty of the murder of the late John Newman MP. Two other co-accused were found not guilty. 2 Following the discharge of the jury, after discussions with counsel, next Friday 12 October 2001 was fixed for hearing of submissions on sentence. Mr Nicholson SC, who appeared for Mr Ngo throughout the trial, indicated that he was retiring from his position as Senior Public Defender and would not be available. Subsequent events have shown why that was so. I proceeded on leave that day and only returned to Chambers on Monday last, the eighth instant, and my leave was the reason for the long adjournment of the sentencing proceedings. 3 Application has now been made to adjourn the sentencing proceedings because it appears that Mr Hoenig, who appeared as counsel for one of the accused who was acquitted, has now been briefed to appear on behalf of the prisoner, Ngo, in the sentencing proceedings, but he is not available this Friday as he had prebooked a holiday, apparently prior to accepting the brief. I am informed that some six weeks ago he approached the Senior Crown Prosecutor and told him of his predicament. The Senior Crown Prosecutor told him he would not object to an adjournment but thought the matter should be dealt with fairly soon, and that remains his attitude. 4 Mr Pearsall, who appeared as junior to Mr Nicholson throughout the trial, has appeared this morning to seek the adjournment. He submits that the adjournment should be granted because he anticipates that the Crown will be submitting that this is a case for the imposition of the maximum penalty of imprisonment for life; and that therefore all arguments and submissions which can be made should be made on behalf of the prisoner, and that Mr Hoenig is an experienced advocate who, because of his appearance in the trial, has a detailed knowledge of the facts. In fact he described him as "the most experienced advocate who has knowledge of the facts". 5 I accept that the Crown may be making such a submission, that it is a most serious matter, that the prisoner's position is most serious and that he should have available to him the best available counsel. The fact of the matter is that Mr Hoenig is not available. It is not as though the refusal of the adjournment will result in the prisoner being without adequate or sufficient representation. Mr Pearsall was in the trial from its beginning as junior to Mr Nicholson. He showed, by submissions he made on interlocutory matters and by his leading and cross-examination of some witnesses, that he is an extremely competent counsel, experienced in the criminal field, and I know from the Law Almanac that he has been in practice for a significant number of years and I also know that he enjoys a high reputation in the field of criminal law. It follows that Mr Ngo will have adequate, competent representation if the adjournment is refused. 6 I am appalled that Mr Hoenig should accept a brief for a matter which had been specially fixed when he knew at the time that he would not be available. The court lists are jammed and counsel do not have the right to juggle them or attempt to juggle them to suit their own convenience. If I considered there was a risk of injustice to the prisoner by refusing the adjournment I would grant it, but I can see no such risk. 7 The application for adjournment is refused. The submissions on sentence will proceed on Friday. oOo Last Modified: 11/06/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.