R v Sigalla [2016] NSWSC 465

Supreme Court New South Wales

Medium Neutral Citation: R v Sigalla [2016] NSWSC 465 Hearing dates: 8 April 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Common Law - Criminal Before: Wilson J Decision: The Notice of Motion is dismissed. Catchwords: CRIMINAL LAW – procedure – application to vacate trial date – accused unrepresented – insufficient funds to secure services of counsel – trial date previously vacated - duty and obligations of a trial judge to ensure an unrepresented accused receives a fair trial - trial date confirmed Legislation Cited: Criminal Procedure Act 1986 (NSW) Category: Procedural and other rulings Parties: Regina Andrew John Sigalla (Accused) Representation: Counsel: Ms McDonald SC with Ms S Callan (Crown) Mr Sigalla (Accused)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2013/001511552013/00355116 Publication restriction: Publication restricted to the parties until a verdict is returned.

EX TEMPORE Judgment 1. By Notice of Motion filed in the registry on 7 April 2016, Andrew Sigalla, who is the accused in these proceedings, asks the Court to vacate his impending trial date, currently listed at the end of May with a four-week estimate, and instead fix a new trial date on a date after September 2016. 2. In support of the Motion Mr Sigalla has read his own affidavit of 6 April 2016. Although the affidavit was admitted without objection the Crown has noted that it does not concede, and indeed, takes issue with much of the content of the affidavit. I have read the affidavit material with that qualification in mind. 3. In his affidavit Mr Sigalla deposes to the history of an investigation into his professional businesses and conduct which has occurred since about 2009. Mr Sigalla attributes ASIC as waging a campaign against him, and it is no doubt, at least in part, that with which the Crown takes issue. He has set out in his affidavit a history of the court proceedings in which he has been involved, connected with company dealings, and it is, to some extent, the court proceedings that he relies upon in support of his application to vacate his trial. 4. At this stage Mr Sigalla is unrepresented. It is his intention to brief Senior Counsel, and Mr Robberds of Senior Counsel has been in the matter previously, although he is not now instructed and is not able to accept the brief until Mr Sigalla has access to the means to secure his services. Mr Sigalla's position is that he will have the means to secure the services of Senior Counsel in a relatively short period, because of an action in which he has been engaged, and a costs order made in his favour. He has advised me from the bar table this morning that the costs order is now with Registrar Ng, although it appears that there has not yet been a commencement of assessment of the costs due to be paid to Mr Sigalla. 5. It is Mr Sigalla's position that he would be unable to receive a fair trial were he to appear without the benefit of legal representation. He points to the complexity of a prosecution of this nature, it being a prosecution for fraud, and his own inability to act for himself given his lack of any legal training or experience in the conduct of a criminal proceeding. 6. Mr Sigalla's contention is that, if given some further short period of time, that is, until a date after September of this year, he will be able to fund his own defence and be able to appear represented before the court at trial. He contends, and I don't think anyone would take issue with this particular aspect of his case, that he would be better able to represent himself if he had the assistance of legal representatives. 7. Ms McDonald of Senior Counsel, who appears for the Crown, opposes the accused's application to vacate the trial date. Tendered to the Court on behalf of the Crown is a volume of material, none of it fresh, but it assembles a volume of documentary material which has already been before the court relevant to applications to vacate proceedings in this matter. 8. There has already been a trial date fixed in this matter. A trial date was fixed for 1 February of this year, and vacated. As that might indicate, the matter is not without some history. 9. The charges relate to events which are alleged to have occurred between 2006 and 2009. The matter first came before this Court in February of 2015, into the arraignments list, and it remained in the arraignments list until September of 2015. There were issues at that early stage with the accused's representation and his readiness to proceed. Ultimately Johnson J fixed a trial date for 1 February 2016, and it was anticipated that Mr Robberds of Senior Counsel would be available to assist Mr Sigalla. That turned out not to be the case, and Mr Sigalla made an application to Johnson J for the vacation of the February trial date. 10. In his affidavit filed in support of that application, an affidavit of 2 November 2015, Mr Sigalla set out for the court the potential income source that he expected to have available to him, including the costs judgment which was referred to this morning. It was Mr Sigalla's contention then that, although he would not be in a position to fund his representation for a February trial date, he would certainly be in position to do so for a trial date in May, and a trial date in May was specifically selected, his Honour having granted the application, because that was a date which suited the accused and upon which counsel he intended to brief would be available. 11. His Honour heard the application to vacate the February trial date on 6 November 2015. It was Mr Sigalla's contention on that occasion that he only needed a short delay in proceedings, and specifically, only to May to be in a position to proceed. Although the transcript is perhaps suggestive of his Honour's reluctance to grant the application, his Honour was ultimately persuaded to do so, on the accused's firm affirmation that he would not require any further delay in the trial proceedings and that he fully understood that there would be no further adjournments. Indeed the transcript tendered by the Crown, and which, in any event, forms part of the Court's record, has some exchanges between his Honour and the accused in which his Honour made it very plain, that were the February trial date vacated, there would be no further adjournments. The accused, as reflected in the transcript of those 6 November 2015 proceedings, was equally clear in his acknowledgment that the trial would proceed in May, and would do so whether Mr Sigalla had representation or not, and that he was content with his Honour's indications that the May trial would proceed. 12. The current application to vacate the trial is made essentially on an identical basis to the application made in November. That is, that the funds Mr Sigalla expects have not yet appeared, that he expects them in a relatively short period of time, and seeks only a delay of some months. 13. The difficulty with the current application is the fact that it is almost a mirror image of the application made in November 2015. It seems that the funds due to come to Mr Sigalla are still somewhat nebulous in terms of a date upon which they may actually be available, and although Mr Sigalla has clearly made some attempts to secure loan moneys and other funds to pay for his defence, it is not entirely certain on the evidence tendered in support of the motion that funds, and sufficient funds, will be available in anything like a reasonable period of time. 14. One can readily foresee a situation where, if the current trial date is vacated and a fresh trial date fixed, the Court would be faced with precisely the same application in a number of months time. 15. In determining an application for an adjournment, and particularly where that application is for a vacation of a trial date already fixed for the hearing of criminal proceedings, the Court has to have regard to the interests of the litigants, and that means both parties before the Court, and also to the utilisation of court resources and the interests of justice more widely. 16. Currently there is a trial date fixed for the end of May. Some four weeks of court time have been set aside, with jury panels to be called for the commencement of the hearing of the trial. If the trial date is vacated it is, I think, axiomatic that no criminal trial would be available to be ready between now and that May date to be freshly listed and, accordingly, that would be four weeks of the court's time which could not be utilised to hear a criminal trial. Other litigants, who no doubt would have preferred an earlier trial date, are at a disadvantage if litigants who have a trial date and vacate it needlessly take up court time in that regard. 17. Of course Mr Sigalla, as he has pointed out in submissions, is not here litigating civil proceedings. He is here as an accused in a criminal trial, and as he has noted, if there is an outcome adverse to him his liberty is at stake. That is a far more significant outcome for any person to face than a civil judgment against them, and accordingly, the Court must give clear consideration to his interests in conducting any trial. 18. As I have indicated, it is, I think, without question a truism that an accused person is better able to conduct his or her case in a criminal trial with the advantage of legal representation, but ultimately what the court has to ensure is not that an accused person gets the best possible trial they could have, but that they receive a fair trial. 19. An accused person is entitled to appear for him or herself, and the Criminal Procedure Act 1986 (NSW) recognises that in specific provisions which provide for an accused to conduct his or her own defence. 20. The trial judge hearing a trial involving an unrepresented accused also has an additional layer of obligation to that accused, to ensure that the trial is a fair one. That may mean giving an accused information and assistance that would not be provided to an accused person who was represented by counsel. That is the obligation and the duty of the trial judge, to give the accused as much assistance as is necessary for him or her to understand the proceedings and to be in a position to participate meaningfully in them, even in terms of framing questions, or giving assistance as to what is necessary to tender evidence and put that evidence before a jury in a comprehensible fashion. 21. That duty and those obligations, being as they are, I am satisfied that, whilst it would be more difficult for Mr Sigalla to appear without counsel, his right to a fair trial can, and will be, safe guarded if he is to appear unrepresented. 22. Were the Court to vacate the trial date at the end of May, whilst the accused has asked for an adjournment of proceedings only until a period after September, the state of this Court's list is such that it is very unlikely that a trial date could be fixed before 2017. That would mean that these proceedings have been delayed for a very considerable period, and it is the obligation of the Court to ensure that proceedings of this nature are dealt with expeditiously, and certainly as expeditiously as is possible to ensure fairness to the parties. 23. Whilst Mr Sigalla queries what prejudice there can be to the Crown in any further delay in the trial proceedings, there is always prejudice in a criminal trial when the proceedings are delayed. The recollections of witnesses tends to become rather vaguer than it may have been closer to the date of events, and proceedings become that much more difficult because of the lapse in time and the delay to the proceedings. 24. Criminal proceedings, in particular, must always be dealt with as quickly as is possible, consistent with the interests of justice and fairness to the parties. 25. Whilst I accept fully Mr Sigalla's distress at the prospect that he may have to appear for himself, I am not satisfied that a delay until September will necessarily mean that he will have representation. The likelihood of the finances becoming available in a discrete period of time are sufficiently nebulous that I cannot have confidence that he would be in any better position were this second trial date to be vacated. 26. I am not satisfied that the accused will be unable to receive a fair trial. I have referred to the duty and the obligations of the trial judge in ensuring that he does receive a fair trial, and I am content that that duty and those obligations are such that a fair trial will be provided to the accused, whether he has the benefit of legal representation or not. 27. Accordingly, I propose to dismiss the notice of motion.