R v Rogerson; R v McNamara (No 14) [2015] NSWSC 1157

Supreme Court New South Wales

Medium Neutral Citation: R v Rogerson; R v McNamara (No 14) [2015] NSWSC 1157 Hearing dates: 14 August 2015 Date of orders: 14 August 2015 Decision date: 14 August 2015 Jurisdiction: Common Law Before: Bellew J Decision: See paragraph [30] Catchwords: CRIMINAL LAW – Where counsel for accused given leave to withdraw from proceedings – Where accused left without counsel as a consequence – Necessity to vacate trial date – Referral of conduct of counsel to the Registrar with a direction that advice be obtained as to whether there has been a contempt of Court Legislation Cited: Supreme Court Rules Category: Procedural and other rulings Parties: Regina – Crown Roger Caleb Rogerson - Accused Glen Patrick McNamara – Accused Representation: Counsel: Mr C Maxwell QC - Crown Mr G Thomas – Accused Rogerson Mr G E Smith SC and Mr P Lange – Accused McNamara

Solicitors: Director of Public Prosecutions - Crown Katsoolis and Co – Accused Rogerson Kings Law Group – Accused McNamara File Number(s): 2014/157408, 2014/156921 Publication restriction: Nil

Judgment – EX TEMPORE (REVISED) 1. These proceedings first came before me in April of this year. During the months of May and June, and as it turned out, into the month of July, I heard and determined a number of pre-trial applications which had been made by one or other of the parties. During the week of 13 July, it became apparent that there had been an increase in the number of applications which were to be brought on behalf of the accused McNamara, about which little or no notice had previously been given. As a consequence of the necessity to deal with those matters, it became necessary for me to put back the original trial date from 20 July 2015 until 27 July 2015. Even at that latter point there were pre-trial applications which remained to be determined. Nevertheless, the trial was in a position to commence. 2. A jury of 15 persons was empanelled on 27 July and the Crown proceeded with his opening address which concluded the following day, July 28. Unfortunately, immediately following the conclusion of an opening address by Mr Waterstreet of counsel who then appeared for the accused McNamara, the jury was discharged. The reasons leading to my decision to discharge the jury on that occasion were, and remain, suppressed. The reason they were, and remain, suppressed, is because I have formed the view that to publicise them may have an adverse effect on the right of one of the accused to a fair trial. 3. Following the discharge of the jury, I set about resolving the remaining pre-trial applications which were outstanding. I was then informed that further issues had arisen which would require determination before any trial could start. A new trial date of 18 August 2015 was then set. Specific arrangements were made by the Sheriff, at my request, for the assembling and the processing of a large number of jury panels in advance of the trial date. That step was taken so as to ensure, as far as I possibly could, that the trial would commence without any further interruption on 18 August. 4. By 11 August, a week before the proposed trial date, I had delivered a total of 13 judgments in relation to various pre-trial applications. On the information which was then available to me there was one, or at the most two, further matters which required determination. With a week remaining before the trial date, there was obviously ample time for those matters to be dealt with so that the trial could commence as scheduled. 5. On the morning of 11 August 2015 evidence was placed before me in the form of an affidavit of Mr Katsoolis, the solicitor for the accused Rogerson, which annexed a photograph which had been published on an "Instagram" account which, on the face of it, was held in the name of Mr Waterstreet. The photograph was one of Mr Waterstreet and another person whose identity has not been made known to me. The photograph appears to have been taken in the street just outside the immediate precincts of the court. The photograph bore a caption. I have come to the view that the terms of the caption cannot be published. Once again, the reason I have come to that view is because I am satisfied that to publish it may adversely affect the right of one of the accused to a fair trial. 6. When that evidence was placed before me I stood the proceedings down to allow Mr Waterstreet to consider his position, and to take such advice as he considered was necessary. Mr Waterstreet informed me at the time that he was not responsible for posting the photograph. 7. When the matter resumed before me later that day two further affidavits were filed in court. The first was an affidavit from the Crown's instructing solicitor, Mr Prince, who deposed to the fact that prior to the resumption of the proceedings on that day he had accessed the social media platform known as Twitter. Mr Prince stated that having done so, he performed a search under the name of Mr Waterstreet. He was then directed to an account which was entitled "@CCWaterstreet". Mr Prince annexed what he referred to as a "screen shot" which was taken at the time of conducting the search. The screen shot depicted a post to that Twitter account which had been made early on the morning of 7 August 2015. The post repeated the caption to which I earlier referred. Contained within the post was what appeared to be a link to the Instagram account which carried the photograph to which I have already referred (as well as the caption). Accordingly, on the evidence before me the caption in question appeared to have been published on not one, but two social media outlets. 8. A second affidavit was then filed in court by Mr Thomas of counsel who appears on behalf of the accused Rogerson. That affidavit was sworn by a member of the support staff of Mr Thomas' instructing solicitor, Mr Katsoolis. That staff member had also conducted searches of social media accounts which appeared to be held in the name of Mr Waterstreet. The staff member deposed to the fact that by 11.08am on the morning of 11 August the photograph and the caption which had appeared on the Instagram account had apparently been removed. The staff member also deposed to the fact that from her own experience, accounts of this nature could only be accessed and operated by a person who had knowledge of the relevant user name and password. 9. In the light of that additional affidavit material, and in the light of what I had been told by Mr Waterstreet earlier that morning as to who may or may not have been responsible for posting the photograph and caption, I gave Mr Waterstreet a further opportunity to consider his position and to seek such advice as he thought appropriate. I then adjourned the proceedings until the following day, 12 August 2015. 10. When the proceedings resumed before me on 12 August 2015, Mr Game SC appeared on Mr Waterstreet's behalf. Mr Game informed me that he had given Mr Waterstreet certain advice. Whilst Mr Game did not (as one would expect) divulge the details of that advice, he informed me that the essence of it was that he had told Mr Waterstreet that he must return the brief. Mr Game then made a formal application on Mr Waterstreet's behalf for leave to withdraw from the proceedings. In doing so, Mr Game pointed out that although he was making that application as a matter of formality, it was really a situation where he had advised Mr Waterstreet that he simply could not continue to appear. To the extent that it remained a matter for me, I granted Mr Waterstreet leave to withdraw. I indicated at that time that I would provide reasons at some later stage. The circumstances in which I granted that application, and the reasons for it, will now be obvious. 11. As a consequence of all of those matters, the accused McNamara found himself in a position where, although he retained the same solicitor, he was not represented by counsel. In those circumstances, on the application of his solicitor, I adjourned the proceedings until today so as to allow his solicitor to make inquiries as to the availability of other counsel who could be retained in the matter. 12. When the proceedings resumed before me this morning, Mr Smith SC announced his appearance on behalf of the accused Mr McNamara together with Mr Lange of counsel. Mr Smith indicated that whilst he was in a position to accept the brief, his current commitments were such that he could not appear in the matter this year. He indicated that some discussions had taken place between the parties about a proposed trial date in March of 2016. I will return to that issue in a moment. 13. All of these matters raise the obvious question of what is to now happen with this trial. Although he did not formally make application for the trial date to be vacated, that was the effect of Mr Smith's stated position. 14. The Crown, albeit with obvious reluctance, accepted the reality that there were difficulties in the trial proceeding. The Crown's position, in essence, was that questions of immediate availability aside, it would take new counsel some weeks to just read the material, let alone be in a position to take instructions. The Crown's position, as I understood it, was that in those circumstances, and bearing in mind the present estimate of the trial of three months, the matter could not proceed this year. Inherent in the Crown's submissions was an acceptance of the fact that if the trial were to start at some stage later this year it would inevitably run into the Christmas/New Year period which necessarily created difficulties in terms of the availability of jury panels and the like. 15. Mr Thomas however, took a different view. He vigorously opposed any application to vacate the trial and expressed his opposition to any proposal that the trial commence in 2016. In support of that position Mr Thomas made a number of submissions. 16. Firstly, he pointed out (and it is uncontroversial) that the accused McNamara is in receipt of a grant of Legal Aid. He submitted that the relevant protocols which apply in relation to grants of Legal Aid are such that Mr McNamara is not in a position to retain, as it were, counsel of his choice, but must accept such counsel who might be available. Mr Thomas submitted, based upon enquiries that he had made, that there were other members of the Bar of suitable experience who were in a position to accept the brief and to start virtually immediately. 17. Secondly, Mr Thomas submitted that there was no evidence that any enquiry had been made with the Public Defender's office as to the availability of counsel. He pointed out that such enquiry was part of the relevant protocol. I should say that in response to that submission, Mr Smith tendered correspondence received by his instructing Solicitor from the Public Defender's office makes it abundantly clear that no Public Defender is presently available to accept the brief. 18. Thirdly, Mr Thomas made a number of submissions regarding the history of the current proceedings. He submitted in effect, that there had been other conduct on the part of Mr Waterstreet which was, to paraphrase what was said, less than satisfactory. Mr Thomas went so far as to submit that such conduct on the part of Mr Waterstreet must have been as a consequence of specific instructions provided by Mr McNamara. I should make it very clear that I do not regard any of the circumstances which have arisen to be the personal responsibility of Mr McNamara. Mr McNamara finds himself in his present position due to circumstances which, in my view, are not of his making. 19. Mr Thomas also submitted that having reviewed the matter, he had revised his position as to the estimated length of the trial and had concluded that the appropriate estimate was eight weeks. He submitted that having made his own inquiries into the availability of counsel other than Mr Smith, someone could be retained in sufficient time to read the material, obtain instructions, start the trial in two weeks, and thus have it completed this year. 20. I do not doubt that Mr Thomas made the inquiries to which he referred. I also do not doubt that there could possibly be other counsel in a position to accept the brief. However in my view, the suggestion that competent counsel of appropriate experience could read the volume of material which has been amassed in this case and obtain instructions so as to be ready to commence a trial in two weeks, is simply unrealistic. In my view the amount of material, both in terms of the brief itself as well as material produced on subpoena, would take at least three to four weeks to read and digest. It would only be at that time that counsel would be in a position to properly and sensibly take instructions from Mr McNamara. Whilst I obviously have some insight into Mr McNamara's case, I am certainly not in a position to determine for how long, and on how many occasions, he would need to speak to newly retained counsel in order to provide his instructions. 21. I should also say, without any intending any disrespect to Mr Thomas, that the suggestion that this trial could be completed in a period of eight weeks would seem equally unrealistic. The Crown has already indicated on a previous occasion when the estimate was being discussed that the Crown case alone was expected to take five to six weeks. The suggestion that cases for two accused, together with addresses and a summing-up from me, could be completed within a two week period is, as I have said, unrealistic. 22. In all of the circumstances, and whilst I am mindful, obviously, of the position in which the accused Rogerson finds himself as a consequence of what has arisen, I am left with no alternative other than to vacate the trial date of 18 August 2015. For all of the reasons I have outlined the practical effect of taking that course is that this trial will not be able to commence until 2016. However, I make it clear that as matters presently stand, I would not be minded to leave it until March to commence it. Subject to hearing from the parties, it would be my intention to list the matter to commence on the first day of the new term at the end of January in 2016. 23. To say that the vacation of this trial is unfortunate would be a gross understatement. I have no doubt that, if given a proper choice in the matter, both accused would wish this trial to commence. However, for all of the reasons I have given, recent events render that impossible. It would not be fair to Mr McNamara to force him to proceed without counsel. That would be the effect of forcing the trial to commence. It would be particularly unfair to place Mr McNamara that position when the circumstances which have led to it are, as I have said, not of his making. 24. I am also mindful that the vacation of this trial comes at considerable public expense. I have already made reference to the specific arrangements which were put in place for the marshalling and processing of jury panels. The time and the expense devoted to that have largely been wasted. There is also a further burden placed on Legal Aid funding because of the necessity to retain new counsel. All of those factors have weighed heavily on my mind. The decision I have reached is not one that I have taken lightly but for all of the reasons I have given, I am left with no practical alternative. 25. In reaching that conclusion, there are some other things that need to be made clear. The first, is that the vacation of the trial date is not the fault of the Court, nor is it reflective of a fault in the administration of criminal justice in this State. It will be evident that since April of this year this Court has done its best to deal with pre-trial matters as quickly and efficiently as possible, so as to ensure that the trial could proceed without interruption. Regrettably, despite the Court's efforts in that regard, that has not been possible. 26. It should also be made clear that there is no fault on the part of the Crown for the circumstances which have arisen. Equally, it should be made clear that there is no fault on the part of either of the accused personally. No fault lies at the feet of counsel or the solicitor for the accused Rogerson, nor at the feet of the solicitor (or recently retained counsel) for the accused McNamara. I have no doubt that all of those parties would wish this matter to proceed if it were possible. Unfortunately, it is not. 27. I have previously noted that earlier this week I acceded to an application made on behalf of Mr Waterstreet to allow him to withdraw from the proceedings. After I had made that order, the Crown submitted that in all of the circumstances I should refer the evidence which had been placed before me to the Registrar of the Court for consideration of the question of whether or not proceedings for contempt of Court should be brought against Mr Waterstreet. When the Crown raised that issue, Mr Waterstreet was not present and he was not represented, Mr Game's retainer at that stage being limited to making the application for leave with withdraw. Accordingly, in those circumstances, I directed the Registrar to inform Mr Waterstreet of the Crown's position, and I stood the matter over until today for the purposes of hearing any further submissions that were sought to be made by either party. 28. In the intervening period, my Associate received correspondence from Mr Game SC. Without going into detail, Mr Game indicated that he agreed that the appropriate course to take was to make an order that the matter be referred to the Registrar in the terms that I have outlined. I should make it clear that in agreeing to that course, Mr Game was not conceding that any contempt had in fact occurred. 29. The Crown properly pointed out that despite the agreement which had been reached by the parties in relation to that issue, the referral to the Registrar remained a matter for me. However, in light of the evidence which was placed before me, that is the course I propose to take. 30. Accordingly, for all of those reasons, I make the following orders: 1. The trial date of 18 August 2015 is vacated. 2. The proceedings are listed for further directions before me at 9.15am on Monday 14 September 2015 at which time neither accused will be required to be in attendance. 3. Pursuant to part 55 rule 11(6) of the Supreme Court Rules, I refer the question of a possible contempt of Court by Mr Charles Waterstreet, Barrister, to the Registrar of the Common Law Division of the Supreme Court of New South Wales. 4. In accordance with Part 55 rule 11(6), I direct the Registrar: 1. to take advice from the Crown Solicitor for New South Wales as to whether proceedings for contempt of Court should be taken against Mr Waterstreet in respect of the matter that I have identified; 2. to act in accordance with such advice as is received from the Crown Solicitor; and 3. to inform the Attorney General for the State of New South Wales of that matter. 1. Any party has liberty to restore the proceedings to the list on 24 hrs notice by contacting my Associate. 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. Decision last updated: 14 August 2015