R v Macdonald (No. 2) [2016] NSWSC 1941

Supreme Court New South Wales

Medium Neutral Citation: R v Macdonald (No. 2) [2016] NSWSC 1941 Hearing dates: 1 April 2016 Decision date: 01 April 2016 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: See paragraph [10] Catchwords: PROCEDURAL – adjournment of Dietrich application to permit accused to obtain litigation funding from public sources – short adjournment granted – no point of principle Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Cases Cited: Dietrich v The Queen (1992) 177 CLR 292 Category: Procedural rulings Parties: Regina Ian Michael Macdonald (Accused) Representation: Counsel: P Neil SC (Crown) D Mackay (Accused Macdonald) D Jordan SC (Accused Maitland)

Solicitors: Solicitor for Public Prosecutions (Crown) Bilbie Dan Solicitors (Accused Macdonald) Bob Whyburn Solicitor (Accused Maitland) File Number(s): 2015/59940

Judgment - EXTEMPORE 1. By notice of motion sent to my Associate on 31 March 2016 and filed in court today, Friday 1 April 2016, the accused Ian Macdonald seeks an order to stay these proceedings until he has sufficient financial funding to obtain legal representation for his defence, and seeks that the matter be stood over until 26 April 2016. 2. Mr Healey, who appeared on behalf of Mr Macdonald today, sought to have the notice of motion adjourned to 26 April 2016 so further attempts can be made on Mr Macdonald's behalf to obtain public funding for his defence in the criminal trial, which is listed to commence on 26 April 2016. 3. The reason the Dietrich application (Dietrich v the Queen (1992) 177 CLR 292) is somewhat in abeyance is because of continued representations made on behalf of Mr Macdonald to both the Premier and the Attorney-General for the State of New South Wales. Although many previous applications have been made and each has been rejected, Mr Dan, the solicitor instructed by Mr Macdonald, has told me he has a hope and an expectation there may still be a favourable response to Mr Macdonald's request for assistance. Whatever the force of such hope or expectation, it appears one reason for the funding having been declined to date is the findings of corruption which have been made by the Independent Commission Against Corruption (ICAC) against Mr Macdonald in respect of his conduct when he was a former Minister of the Crown. 4. There are also apparently issues, as perhaps is inevitably the case, as to from which source or public fund such moneys, if they were forthcoming, would be paid. It does not appear to me there is any real prospect that public funding will become available. However, I am not privy - nor do I want to be privy - to the inner workings of these discussions, and I am prepared to accept there is a basis for Mr Dan's hope and expectation which should incline me to adjourn the notice of motion. 5. However, having regard to the imminence of the trial, I am prepared to stand the notice of motion for the Dietrich application over only for a short period, to permit Mr Macdonald to be represented by counsel if he chooses on that day and if he needs to press the Dietrich application, all other sources of funding having been exhausted or investigated and declined. 6. Accordingly, in these circumstances, I adjourn Mr Macdonald's application for a stay of the proceeding on the grounds of Dietrich before me to 10 o'clock on Friday 8 April 2016 or such other time on that day as shall be notified to the parties. 7. An application has been made for a non-publication order pursuant to s 8 of the Court Suppression and Non-publication Orders Act 2010. I may make such an order on one or more of grounds listed in that provision. The relevant ground for present purposes is that the order is necessary to prevent prejudice to the proper administration of justice. 8. It has been put on behalf of Mr Dan, Mr Jordan SC and the Crown collectively that such an order is necessary in the present case because of the imminence of the trial and the potential for information, such as that concerning what has occurred today, to create at least the potential for prejudice in the minds of persons who may become jurors at the trial. 9. The Crown has submitted it is sufficient there be an order that there be no publication of the evidence of Mr Dan relating to the reasons funding was declined. Mr Jordan and Mr Dan collectively have suggested a general non‑publication order of what has happened today, with a carve-out as it were to permit Mr Dan to communicate with the relevant decision-makers. 10. In all the circumstances, I am satisfied it is appropriate to make a non‑publication order in respect of the evidence adduced by Mr Macdonald in support of his application including the oral evidence of Mr Dan, and that such an order is necessary to prevent prejudice to the proper administration of justice. However, that order is subject to a condition that Mr Dan, Mr Macdonald or any legal representative instructed by him is at liberty to disclose matters within the purview of the order to those persons to whom application for public funding is made.