Supreme Court New South Wales Medium Neutral Citation: R v Seller; R v McCarthy (No 5) [2014] NSWSC 1410 Hearing dates: 10 October 2014 Decision date: 10 October 2014 Before: Button J Decision: Adjournment granted. We will commence the discussion of legal objections on the voir dire on the Wednesday of that week at 10am. The date upon which the jury will be empanelled will be Monday 27 October 2014 at 10am. Catchwords: PRACTICE AND PROCEDURE – application for adjournment – orders of the Criminal Court of Appeal with regard to interlocutory appeals expected the working day before trial date Category: Procedural and other rulings Parties: Regina Ross Edward Seller (Accused) Patrick David McCarthy (Accused) Representation: Counsel: DJ Fagan SC (Crown) P McGuire (Crown) P Strickland SC (McCarthy) P Bruckner (McCarthy) DKL Raphael (Seller) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Hardin Law (McCarthy) Gibson Lawyers (Seller) File Number(s): 2009/237556; 2009/237509 EX TEMPORE Judgment 1. This morning I foreshadowed to the parties my proposal that the trial (which is currently listed to commence on Monday 20 October 2014) be put off with regard to empanelling until 10am on the Thursday of that week, as the earliest possible date upon which the jury could be empanelled. 2. Both counsel for the accused have submitted that that is precipitous and it would be far more logistically practical, convenient, and appropriate for all concerned if that date not be before the following Monday, that is one week after the date upon which the trial is currently listed to commence. It is said, in short, that there are approximately one and a half days' worth of objections and legal matters that need to be resolved by me conveniently before a jury is empanelled, and that that process will include a short voir dire. 3. It is also said that this matter has two unusual aspects. 4. The first is that a hearing in the Court of Criminal Appeal with regard to the interlocutory judgment that I gave some weeks ago will be heard on the Friday preceding Monday 20 October 2014, and it is possible that the Court of Criminal Appeal will not pronounce its orders until it rises at 4pm on that day. If the Crown is successful that will mean that Mr Tang will become a significant Crown witness; if defence counsel are successful, it will mean that the Crown will call an entirely separate witness as an alternative to Mr Tang. 5. In short, an unusual aspect of the trial is that it is possible that, at the rising of the Court on the preceding Friday, it will only be then that an important aspect of the trial is resolved. And that is quite apart from, as I understand it, the appeals that are proposed to be made on behalf of the accused against my orders dismissing an application for a permanent stay and other matters. 6. Secondly, it is clear that, as a matter of logistics, the third report of the alternative witness will not be available until the middle of that week. In other words, it is possible that the proposed determination of objections on the Wednesday of that week could be commencing with each of the counsel for the accused having only just received that report, or indeed not having received it at all. 7. To be clear, my original proposal was that all parties could have two clear days out of court that week to reflect upon the way forward after having received the orders of the Court of Criminal Appeal. It was also my proposal that empanelment at 10am on Thursday would be the earliest possible empanelment date; in other words, that date would not be set in stone. 8. I have reflected on the alternative position as to the possibility of empanelment, at the earliest, on the Friday morning. But I accept that for defence counsel (and indeed the Crown) to go from a hard-fought hearing in the Court of Criminal Appeal on the Friday, to only a weekend and two days' reflection on the way forward as a result; to thereafter engaging in a no doubt hard-fought legal argument for one and a half days; and then perhaps immediately be called upon to open to a jury on the Friday morning is, on reflection, unduly onerous and perhaps as well not in the interests of any of the parties or indeed the Court. 9. I should also record that the Crown has submitted that in truth the difficulties are not as great as one might think. Having said that, Mr Fagan SC has not vigorously opposed what Mr Strickland SC and Mr Raphael of counsel have said. 10. On reflection, with some reluctance I think it is appropriate for me to say today that we will commence the discussion of legal objections on the voir dire on the Wednesday of that week at 10am. The date upon which the jury will be empanelled will be Monday 27 October 2014 at 10am. To be clear, I do not regard that as a contingent date. 11. It is also the case that I expect counsel to comb through the entire brief and to determine each and every objection that will arise in the course of the trial, to the extent reasonably practical, and place them before me on the Wednesday. 12. In other words, it is my expectation that the trial will be minimally interrupted, because all potential objections and legal matters will have been the subject of our discussions commencing on that Wednesday. 13. Finally, if it be the case that that discussion takes more than one and a half days, indeed if it takes up the whole of the Friday, nevertheless we will proceed to empanel on the Monday. ********** 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: 20 April 2016