R v Macdonald (3) [2016] NSWSC 1942

Supreme Court New South Wales

Medium Neutral Citation: R v Macdonald (3) [2016] NSWSC 1942 Hearing dates: 13 April 2016 Decision date: 13 April 2016 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Hearing of Motion adjourned part heard to 20 April 2016 Catchwords: PRACTICE AND PROCEDURE – Dietrich application – admission of additional documents after cross-examination – hearing adjourned to allow time for affidavit in support to establish the provenance of documents to be prepared Cases Cited: Dietrich v The Queen (1992) 177 CLR 292 Category: Procedural rulings Parties: Regina Ian Michael Macdonald (Accused) Representation: Counsel: AN Williams (Crown) DJA 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 – EX TEMPORE 1. Mr Macdonald was cross-examined in the course of his Dietrich application (so called after Dietrich v The Queen (1992) 177 CLR 292) about the non-provision of documents sought by the Director of Public Prosecutions which had been provided by him or on his behalf to the Legal Aid Commission in support of his application for Legal Aid. 2. In re-examination, Mr Mackay, who appears on Mr Macdonald's behalf, sought to tender that material, although Mr Macdonald could not say definitely that it was the material that had been provided to Legal Aid, as he had not seen it in that form. Mr Crown objected to the tender on the basis that it did not arise in re-examination and furthermore, of greater significance, that, as it had not been provided to the Crown, the Crown was not in a position where it could have used that material in cross-examining Mr Macdonald. 3. Accordingly, it was necessary to decide whether the material ought be rejected or whether it ought be admitted with leave granted to the Crown to cross-examine Mr Macdonald arising from that material. 4. It seems to me that the preferable course, having regard to the seriousness of the Dietrich application and the concern for Mr Macdonald's fair trial, and of course Mr Maitland's right to a fair trial it is, in the interests of justice, that I permit that material to be tendered. However, having regard to Mr Macdonald's evidence in re-examination, it cannot be tendered without an affidavit in support in which Mr Macdonald identifies the material as being if it be the case, the material which was provided on his behalf to the Legal Aid Commission. 5. In order to accommodate counsel presently before me, I consider that the earliest time I can resume the notice of motion is at 9.15 am next Wednesday 20 April 2016. I asked the parties whether there is anything else that can be done in the time available today. Counsel have assured me that the matter cannot proceed without the affidavit in support which is referred to above being filed. I accept that joint submission, having regard to the potential importance of the material sought to be tendered in re-examination. 6. Accordingly, the hearing of Mr Macdonald's application in his notice of motion filed on 21 January 2016 will be adjourned part heard before me to 9.15am on Wednesday 20 April 2016.