R v Nour (No 3) [2017] NSWDC 392

District Court New South Wales

Medium Neutral Citation: R v Nour (No 3) [2017] NSWDC 392 Hearing dates: 26 – 30 June, 3 – 4, 10 July 2017 Date of orders: 10 July 2017 Decision date: 10 July 2017 Jurisdiction: Criminal Before: Neilson DCJ Decision: Adjournment granted Catchwords: CRIME – PRACTICE AND PROCEDURE – Second application for adjournment – Consideration of Legal Aid Commission Act 1979, s57 Legislation Cited: Criminal Procedure Act 1986 Legal Aid Commission Act 1979 Cases Cited: Dietrich v The Queen [1999] HCA 57; (1992) 177 CLR 292 McInnes v The Queen [1979] HCA 65; (1979) 149 CLR 575 Category: Procedural and other rulings Parties: Regina (Crown) Michael Nour (Accused) Representation: Counsel: Mr M Breeze (Crown) Mr D Brezniak (Accused)

Solicitors: Solicitors for the Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2015/2089 Publication restriction: Nil

Judgment 1. HIS HONOUR: This is a further application for an adjournment by the accused. The application has been made on his behalf by Mr Brezniak of counsel who draws to my attention two significant facts of which I was unaware until this morning, that is, that the Legal Aid Commission of New South Wales had lodged with them an application for a review or appeal from the decision of the Legal Aid Commission to cancel the accused's grant of Legal Aid. The formal application to the review panel is part of exhibit 10 10. The written documents supporting that application are part of exhibit 9 9. 2. Section 57 of the Legal Aid Commission Act 1979 provides this: "Where it appears to a court or tribunal, on any information before it: (a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with s 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with s 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal it bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit." 1. The accused has complied with par (a)(i) of the section. There are two questions before me, whether the application is bona fide and not intended to improperly delay the conduct of these proceedings and, secondly, whether there are any special circumstances that ought prevent me from granting an adjournment to the accused so that he can pursue his application to the Legal Aid Review Committee. I have been advised that applications to the Legal Aid Review Committee made during the course of a trial can be dealt with expeditiously, that is overnight, but it is clear that the application was received by the Legal Aid Commission on 6 July 2017 and it is now 10 July 2017 and the application has not yet been considered. Even if it were considered overnight and granted, further time must be allowed for any new lawyers to digest the trial materials and to take instructions and to get themselves into position to continue this trial. 2. There are a number of dicta which inform me as to the manner in which I ought approach the task before me. In McInnes v The Queen [1979] HCA 65; (1979) 143 CLR 575, Barwick CJ said at [7]: "However, on the assumption that the judge was in error in the exercise of his judgment in refusing an adjournment, it is necessary to consider whether such a refusal itself amounted to or brought about a miscarriage of justice: cf. s. 689 (1) of the Criminal Code of Western Australia. In order to answer that question, it is necessary to look at the facts of the case as they may be taken to have been accepted by the jury and ask the question whether, to use one formula, any reasonable jury properly instructed must have convicted the accused on that material or, as it was put by Sir Wilfred Fullagar, did the accused really lose a chance of acquittal by the course of events of which he complains. Of course, there may be some cases in which it may be concluded that had counsel conducted the defence the jury may have been less likely to have believed the case made by the prosecutrix but I cannot think that this is such a case. As I have said, the material against the applicant was very strong indeed. His endeavour to explain away the incriminating physical facts by the suggestion of earlier consensual intercourse lacks credibiliity. It depends only on his own statement and his failure to endeavour to obtain admissions of his assertion from the prosecutrix, so far from being explicable by inexperience, is to my mind eloquent of the lack of truth in the assertion." In the same case Mason J came to a different view as to what the trial judge ought to have done. At [8] of his reasons his Honour said this: "In defence of the trial judge I should repeat what Burt C.J. said in the Court of Criminal Appeal: " in this case many of the facts now appearing to us were not known to the trial judge as no doubt they would have been if counsel having decided not to act had appeared before his Honour and explained the circumstances to him." But the fact remains that the adjournment should have been granted; the applicant should not have been forced on with very little opportunity given to him to prepare personally the conduct of his defence." However, at [12] of his reasons, Mason J pointed out that it had not been shown in that case that there was a possibility that injustice had resulted and therefore he would dismiss the application, which was the majority decision of the High Court of Australia. 1. The Crown stresses the duty upon me to consider not only the interests of the accused but also the interests of the Crown and, in particular, the complainant in a case of the current nature and that ultimately the decision must be in the interests of justice having regard to the interests of each of the principal parties to the litigation. I accept that and in essence I cited the relevant authorities to that extent when making my decision on the accused's first application for adjournment on 29 June last. 2. The accused laid emphasis on dicta in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. Mason CJ and McHugh J delivered a joint judgment. Their Honours said this at [12]: "The advantages of representation by counsel are even more clear today than they were in the nineteenth century. It is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious. Lord Devlin stressed the importance of representation by counsel when he wrote: 'Indeed, where there is no legal representation, and save in the exceptional case of the skilled litigant, the adversary system, whether or not it remains in theory, in practice breaks down.' An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown. The hallowed response that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a "helping hand" to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems. As Sutherland J. stated in Powell v. Alabama, when delivering the judgment of the United States Supreme Court: 'But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.'" Later their Honours said this at [31]: "A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained. While, in some jurisdictions, judges once had the power to direct the appointment of counsel for indigent accused, this power has been largely overtaken by the development of comprehensive legal aid schemes in all States and, as such, trial judges now cannot be asked to appoint counsel in order that a trial can proceed. However, even in those cases where the accused has been refused legal assistance and has unsuccessfully exercised his or her rights to review of that refusal, it is possible, perhaps probable, that the decision of a Legal Aid Commission would be reconsidered if a trial judge ordered that the trial be adjourned or stayed pending representation being found for the accused. In the absence of more extensive factual, statistical and economic material than was furnished by the parties, it is difficult for this Court to assess the full practical implications which will flow from the procedure of adjourning a criminal trial, on such occasions as may be necessary, to enable an unrepresented indigent person accused of a serious offence to be represented by counsel at public expense." Deane J (as he then was) said this at [8], [13] and [16]: "8. Clearly enough, circumstances can arise in which a refusal of a trial judge to grant an adjournment of a trial by reason of lack of legal representation has the consequence that the whole trial miscarries. If authority is needed for that confined proposition, it is abundant. Beyond that, the judgments of the common law courts are discordant in that the approach adopted in intermediate appellate courts in this country, Canada and, to a lesser extent, the United Kingdom is in conflict with the approach which has prevailed in the final appellate courts of the United States, Ireland and India. … 13. An accused is brought involuntarily to the field in which he is required to answer a charge of serious crime. Against him, the prosecution has available all the resources of government. If an ordinary accused lacks the means to secure legal representation for himself and such legal representation is not available from any other source, he will, almost inevitably, be brought to face a trial process for which he will be insufficiently prepared and with which he will be unable effectively to cope. In such a case, the adversarial process is unbalanced and inappropriate and the likelihood is that, regardless of the efforts of the trial judge, the forms and formalities of legal procedures will conceal the substance of oppression. … 16. It follows from the foregoing that, as a general proposition and in the absence of exceptional circumstances, a trial of an indigent person accused of serious crime will be unfair if, by reason of lack of means and the unavailability of other assistance, he is denied legal representation. There was nothing exceptional in the circumstances of the present case which would preclude the applicability of that general proposition. That being so, the applicant has not had a fair trial. His conviction and sentence of imprisonment without such a trial necessarily constituted a miscarriage of justice. It remains to be considered whether the case is one in which the proviso contained in s. 568(1) of the Crimes Act 1958 Vic can be applied for the reason that it appears that "no substantial miscarriage of justice has actually occurred" (emphasis added). In my view, it is not." In essence, a trial of the current nature ought only proceed without the accused being represented in exceptional circumstances. The statutory test of course is not "exceptional circumstances" but "special circumstances" which I take to be a less demanding test. 1. Nevertheless, there are a number of considerations. The first is the accused's mental health. Exhibit 3 3 is a series of reports of Dr Jeremy O'Dea, a forensic psychiatrist, who interviewed the accused on 22 February and 18 June 2015 and then saw the accused fortnightly until 23 October 2015. Dr O'Dea may have seen the accused beyond that time but I am not provided with any treatment reports beyond that time. In his history, Dr O'Dea canvassed the accused's psychiatric history. The accused told the doctor that he was diagnosed with schizophrenia whilst he was in custody in 2013 and was then prescribed anti-psychotic medication. However he later saw Dr Yolanda Lucire, who diagnosed akathisia which Dr O'Dea tells me in his reports is a recognised side effect of anti-psychotic medication, Dr Lucire offering the view that the accused had been misdiagnosed with schizophrenia. Later the accused came under the care of a practitioner described to me as Dr Attia Soliman, who treated the accused with a number of psychotropic medications including an anti-psychotic medication Zyprexa, a proprietary name for the drug otherwise known as Olanzapine. The same history tells me that the accused was reviewed by Dr Olav Nielssen in early 2011 and that Dr Nielssen diagnosed probable chronic schizophrenic illness and a substance abuse disorder, in particular the misuse of benzodiazepine medication. 2. The provisional diagnosis made by Dr O'Dea in February 2015 was a schizophrenic illness complicated by substance use disorder and at least an antisocial personality. He recommended treatment with anti psychotic medication, clearly treatment for the schizophrenic illness. Eventually such treatment was provided to the accused who, after such treatment, improved leading Dr O'Dea to the diagnosis of a schizophrenic illness complicated by substance use disorder and an antisocial personality. In a report of 4 November 2015, Dr O'Dea maintained those diagnoses. 3. If the accused has an antisocial personality, that is something with which he was born and which will not go away. If he has developed a psychotic illness such as schizophrenia it will not go away but its symptoms will be masked by treatment. If the accused had that condition in November 2015 it seems likely that he continues to suffer that condition, but I do not know whether it is currently under adequate control or not. The important point to bear in mind is that the accused's thought processes, his cognition, could well be affected by his schizophrenic illness. 4. The report of Dr O'Dea also told me about the accused's education. He was expelled from two high schools before leaving Birrong High School in year 10, but did not obtain his school certificate because he did not complete the appropriate number of days of education. He then sought to obtain an apprenticeship as a panel beater and spray painter, but was expelled from TAFE. His employment history before it was interrupted by his addiction to illicit drugs was essentially working as a labourer in panel beating shops. The inference, therefore, is the accused is not well educated and would find the process of defending himself in Court far from easy, in fact, he would find it daunting. 5. The accused was given the weekend of 1 and 2 July 2017 to prepare questions to be directed to the complainant, his former de facto wife. He had been advised by me on the afternoon of Thursday 29 June that he would need to prepare such a list. When he came to Court on 3 July 2017 he had not prepared such a list. I delayed the cross-examination of the complainant until today. Arrangements were made to call other evidence on 3 July 2015 and also for other evidence to be called on Tuesday, 4 July, but on 4 July, the accused appeared to be unwell by his presentation in the dock and he protested that he was unable to cope either mentally and/or physically with the demands of representing himself at Court. Eventually ambulance officers were called, but they were unable to find anything amiss with the accused's body, at least, when he was interviewed outside of the Court precincts which was clearly after I had adjourned the matter until today, the Court being unable to sit between 5 and 7 July because of a longstanding commitment by me to attend the Biannual conference of the District Court Judges of Australia and New Zealand, at one stage which I was required to represent the Chief Judge. 6. When the matter came on today, the accused, by Mr Brezniak, made the application that I am now dealing with. I do not understand that in the interim, that is between last Tuesday and today he had written out questions that he could give to a representative to cross-examine the complainant in what is a prescribed sexual offence. There was debate about his doing so last Monday and the accused told me that he was able to write down topics which would be the subject of the cross-examination that he needed to prepare, but he had been unable to write the questions down in any meaningful order, but there was no discussion between him and me at that time as to whether the questions could be in proper form. However, it would be up to the representative appointed by the Court to put the questions into proper form, if they were not put in proper form by the accused himself. 7. When the accused did cross-examine, two of the Crown witnesses, both employees of Coles at Wattle Grove, about their dealings with the complainant when she sought refuge at the Coles Supermarket at Wattle Grove on 3 January 2015, the day of the accused's arrest, the accused based his cross-examination largely on statements prepared by each of the witnesses that had been provided to him by the Crown. However, the accused did obtain concessions from each of the witnesses which assisted his case. Equally, he adduced evidence from them in cross-examination which had not been adduced from them by the Crown and which did not advance the accused's case at all, in fact, were inimical to him. 8. When the complainant gave her evidence-in-chief, she volunteered that the accused's behaviour was sometimes affected by his drug taking. That was not part of the Crown's case. When I asked the Crown what needed to be done, the Crown suggested that either that evidence be ignored and hope that it departed from the jury's consideration or that I instruct the jury to disregard it completely and, in accordance with the principles upon which jury trials are conducted, I would have to assume and proceed on the basis that the jury would abide by that direction. The accused did not make an application for the jury to be discharged, but he may not have been aware of that right and I certainly did not tell him that he could make such an application. I am sure that if I had he probably would have, but in the exercise of my discretion I believe that telling the jury to disregard the evidence was a proper way to proceed. However, I readily acknowledge that if the accused had been represented by counsel, counsel may well have made such an application. 9. Returning to the statutory considerations, I accept that the application to the Legal Aid Review Committee is bona fide, that is made in good faith and I do not accept that it is neither frivolous nor vexatious. It is hardly frivolous to seek to be legally represented at a criminal trial where the main charge offered is of aggravated kidnapping, where the maximum penalty for which is 20 years' imprisonment. The application is not vexatious because I am completely unaware, and there was no evidence of, any earlier application to the Legal Aid Review Committee for the restoration of Legal Aid or further a further grant of Legal Aid. 10. The next question is whether the application is made to delay improperly the conduct of the proceedings, correcting the parliamentary draftsman who has decided to split an infinitive with an adverb as appears in s 57(b). It is clear to me that prior to my commencing hearing certain pre-trial matters that the parties were seeking to shorten the matter, to reach some consensus. However, when the pre-trial applications commenced, they were pursued vigorously, professionally and, as submitted by Mr Crown, passionately by Mr Roff on behalf of the accused. Whenever he was appearing for the accused, he so appeared to act. However, it became clear that the parties had reached some form of accommodation on Tuesday 27 June, the day on which I insisted that a jury be empanelled so that pools of jurors were not retained here at the Court house awaiting the decision whether the trial was to proceed or not. However, after the jury was empanelled on 27 June, immediately after the luncheon adjournment I was assured by counsel that they considered the matter had been successfully shortened, subject to the Crown obtaining instructions from a Deputy Director of Public Prosecutions. 11. I understand that at about 1.30am on 28 June, the accused withdrew his instructions to his solicitor Mr Abbas and to his barrister Mr Roff. It may be that the accused had decided to terminate the services of Mr Roff and then Mr Abbas would not appear for him unless Mr Roff were retained. Bearing in mind what I was told by the accused and Mr Roff and Mr Abbas on Wednesday, 28 June, it appeared to me that what had happened was that the accused had lost confidence in Mr Roff because of the negotiations which had been conducted, the attempt to shorten the matter, and with what the accused may have considered to be a completely unsatisfactory set of facts to which he was asked to give his consent. For one reasons or another, the accused lost confidence in Mr Roff and withdrew his instructions. It appears not to have been contemplated by the accused that although he did not have to agree to the matter being shortened, he could have instructed Mr Roff to continue to represent him at trial. It was clear that Mr Abbas would not act for the accused unless Mr Roff were retained. 12. Although the outcome of what occurred in the week commencing 26 June 2017 did delay the conduct of the proceedings and the present application will delay the conduct of the proceedings further, I am not persuaded that it was done improperly, that is, for any base motive such as mere delay. I believe that the accused does want to obtain lawyers to represent him, to present his defence. Perhaps the only problem that has occurred thus far is that the lawyers tried to shorten the matter and the accused ultimately would not consent to that course of action. Furthermore, considering the history of this matter, any further solicitor and barrister acting for Mr Nour ought not seek to shorten the matter but merely take his instructions to defend the matter and let the matter run to trial and thus there ought be no lack of confidence by Mr Nour in any legal team - and I use those word advisedly - that decide to act for him. I am told by Mr Nour, in exhibit 9 9 and also by Mr Brezniak that a solicitor has been found who will act for Mr Nour if he be granted legal aid. Therefore, the matter referred to in s 57(b) has been established. 13. The remaining question is whether there are any special circumstances that prevent the Court from granting the adjournment sought. The Crown relies heavily on the fact that this is not a "victimless" crime but essentially an aggravated from of domestic violence where there was a real "victim", the complainant, the accused's former de facto partner who claims to have been assaulted and to have suffered actual bodily harm. Indeed I understand the evidence to be led by the Crown to include evidence that the complainant suffered bilateral frontal subdural haematomata which, it could be argued, amounts to grievous bodily harm rather than merely actual bodily harm. The Crown argues that she has been distressed by the fact that these proceedings, which were initially listed for trial on 17 October 2016, were then adjourned for one week to 24 October 2016, that hearing date was vacated on 21 October 2016 on the application of the accused. A further trial date was then set commencing on 26 June, that trial date was confirmed at a callover conducted by the Chief Judge on 21 May 2017, but again an adjournment is being called for and an adjournment necessarily will require the fixing of a hearing date in 2018. Two and a half years have elapsed since the events relied upon by the Crown to found the charges against the accused. 14. Any delay is unfortunate. However, the current series of delays results not from the court's inertia but from a lack of funding, which, fortunately, is being rectified at the current time. Nevertheless, one is looking at a further hearing date in 2018 not later in the current year. The response to that is this, in essence: because this is a prescribed sexual offence, the evidence of the complainant, that is the evidence she has given in chief, has been recorded. On my reading of s 306I of the Criminal Procedure Act 1986, that evidence in chief can be replayed at a new trial provided the Crown gives written notice to the accused in accordance with the section. Insofar as the complainant's evidence may be said to be contemporaneous with the offences alleged, the contemporaneity will not be lost by an adjournment because that contemporaneity has been preserved in the recorded evidence-in-chief. That recorded evidence-in-chief can be used to refresh the complainant's memory in conference before she attends to be cross-examined on a further occasion. 15. True it is that Ms Helou and Ms Eid will have to give their evidence again, but their evidence is circumscribed, only to describe the nature of the complainant's distress and complaints on 3 July 2015 and that evidence is largely duplicated in the 0-0-0 calls which are, of course, contemporaneous records, that is, contemporaneous to 3 January 2015 and will adequately describe to any jury the complaints and perhaps oral distress of the complainant at the time she made those calls. 16. Furthermore, delay of three years or three years and six months is not an untold delay in prescribed sexual offences. There are many prescribed sexual offences where the allegation is of, for example, sexual abuse or domestic abuse carried out many many years prior to charging, in fact decades before charging in many circumstances. This clearly is a balancing exercise, but I am, not persuaded in the circumstances that there are special circumstances to prevent my granting the adjournment mandated by s 57 of the Legal Aid Commission Act 1979.