R v Beattie [2015] NSWSC 394

Supreme Court New South Wales

Medium Neutral Citation: R v Beattie [2015] NSWSC 394 Hearing dates: 17 February 2015 Decision date: 17 February 2015 Jurisdiction: Common Law - Criminal Before: Button J Decision: (1) The notice of motion of the accused of 16 February 2015 is dismissed on the basis that it is no longer pressed. (2) The trial date of 2 March 2015 is confirmed. (3) The jury panel will not be called before 3 March 2015. Catchwords: CRIMINAL LAW – procedure – application to vacate trial date – counsel unavailable – toxicologist and forensic pathologist had not been qualified for defence – trial date confirmed Category: Procedural and other rulings Parties: Regina Matthew Beattie Representation: Counsel: M Barr (Crown)

Solicitors: Office of the Director of Public Prosecutions (Crown) Robert Kaufmann Criminal Lawyer (Accused) File Number(s): 2013/205981

Judgment 1. By way of a notice of motion of 16 February 2015, the solicitor for the accused sought to have the trial date of 2 March 2015 vacated. An affidavit in support of that motion, sworn to by the solicitor for the accused on the same date, explained the basis and the background of that application. 2. The matter came before me for the usual pre-trial mention that I conduct in all pending trials yesterday. The agent of the solicitor for the accused then appeared and filed that motion and affidavit in Court. Because of the urgency of the matter, I had the matter listed before me at 9.30 this morning, and also ensured that the accused could be present. 3. I received helpful oral submissions from the solicitor for the accused explaining the background in more detail. As well as that, the Crown Prosecutor explained, having read an affidavit of his instructing solicitor, that the Crown position in a nutshell is that the trial should proceed, subject to the Crown's interests not being prejudiced. 4. It became clear that the basis of the motion was three matters. First, that at this stage no counsel has been briefed, and that preferred counsel, who has had some involvement in the matter over many months, appears to be unavailable. 5. Secondly, that the trial could well give rise to an issue of the effects of intoxication on the accused, in particular with regard to the formation of one of the requisite mental elements for the offence of murder, and no toxicologist has been qualified. 6. Thirdly, it was explained that there could well be an issue about medical causation, and so far no forensic pathologist or physician has been qualified. 7. In discussions between Bench and Bar table, it came to be the joint position that, although difficult, it would be possible (if it be the case that preferred counsel is truly unavailable, and enquiries will be made in that regard urgently) to obtain either a silk or a senior junior, experienced in criminal law, and sufficiently qualified to conduct a murder trial within the time remaining. 8. It also became the view of the solicitor for the accused that again, although difficult, he would be able to obtain a report from a forensic pathologist or physician with regard to the question of medical causation. That would especially be the case if, first, the Crown assisted in that regard; and, secondly, if I were open to ordering short service of any subpoenas with regard to medical records of the deceased. I expressed my readiness to do so in appropriate circumstances, and the Crown Prosecutor made it clear that, of course, his office would do everything it could to assist the solicitor for the accused in finding the appropriate expert. 9. The third and final question again was accepted as having been resolved, in that the affidavit of the instructing solicitor of the Crown Prosecutor has made it clear that her own enquiries reveal that two toxicologists, who are appropriately qualified, are available to provide a report in time for the trial. The solicitor for the accused is content with the proposition that he could qualify one and, if necessary, the Crown would qualify the other. 10. It was after that discussion, and after he had had a chance to confer with his client confidentially, using the courtroom as an informal AVL conference room, that the solicitor for the accused indicated that the motion was no longer pressed. 11. For those reasons I do not think I need to set out the chronology of the matter. Nor do I need to say anything about the importance of it being appreciated by the profession that, when a murder allegation is listed for trial, in my view unless something exceptional occurs it will proceed on that trial date. 12. I accept that the resolution of this matter that has been reached today will undoubtedly place urgency and pressure upon the solicitor for the accused over the next two weeks. But it is common in the weeks leading up to important litigation for one to be busy and pressured. 13. As well as that, the solicitor for the accused has been involved in the matter for some months. He is an accredited specialist in this area and, of course, he is a member of the Legal Aid Serious Crime Panel, and experienced in criminal law as a result. I am respectfully confident that, working diligently, the solicitor for the accused will be able to have the matter ready for trial, and to represent the interests of the accused quite appropriately. I think the same may be said of the Crown Prosecutor, who is an experienced member of the Bar, and a specialist in criminal law of longstanding. 14. For abundant caution, in light of the fact that counsel will be briefed very shortly, and he or she may identify legal issues that were not identified yesterday and that should be determined before the jury is empanelled, I think it appropriate that the trial date's listing for the Monday be confirmed, but that the jury panel be called not before Tuesday 3 March 2015. 15. In light of the motion not having been pressed, I simply make the following orders: 1. The notice of motion of the accused of 16 February 2015 is dismissed on the basis that it is no longer pressed. 2. The trial date of 2 March 2015 is confirmed. 3. The jury panel will not be called before 3 March 2015.