Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.20) [2018] NSWSC 656 Hearing dates: 11 May 2018 Date of orders: 11 May 2018 Decision date: 11 May 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Adjourn the hearing of the trial from 14 May 2018 to 15 May 2018. (2) Fix the trial to commence on 15 May 2018, when the Court will sit to hear the Crown's opening address and any opening address which the accused wishes his lawyers to deliver. (3) The Court will then receive, as an exhibit, the whole of the original Family Court file of the proceedings between the accused and his former wife, Ms Blanchard. (4) The trial will then be adjourned to resume the commencement of evidence on Monday 9 July 2018. (5) The Court will sit as required in the period from 15 May 2018 to 9 July 2018 to hear and determine any outstanding issues that can conveniently be determined prior to the commencement of evidence. Catchwords: CRIMINAL PROCEDURE – application by accused for further adjournment of criminal trial – accused charged with a number of serious historical offences –difficulties faced by accused in consulting with lawyers whilst in custody – where new lawyers retained by accused – arrangements made by accused to retain forensic experts – where production and review of documents sought by subpoenas issued to third parties is incomplete – where accused sought a judge alone trial – where application for judge alone trial was granted – increased flexibility available in judge alone trial – consideration of the interests of justice – order made requiring Crown to deliver opening address in week fixed for trial – adjournment granted for two months before commencement of evidence Legislation Cited: Bail Act 2013 Criminal Procedure Act 1986 Cases Cited: R v Warwick (No.2) [2017] NSWSC 1225 R v Warwick (No.5) [2018] NSWSC 70 R v Warwick (No.8) [2018] NSWSC 354 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown Leonard John Warwick (Accused) Representation: Counsel: K McKay / G Christofi (Crown) A R Conolly (Accused) Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused) File Number(s): 2015/222068 Publication restriction: Not to be published until further order of the Court. Non publication order lifted on 14 February 2020. EX TEMPORE Judgment 1. On 3 March 2017 the Accused was arraigned in this Court upon an Indictment containing 24 counts. To each of those counts the Accused pleaded not guilty. The criminal conduct underlying the charges on the Indictment occurred between 1980 and 1985. 2. The details of these charges may be found in R v Warwick (No.2) [2017] NSWSC 1225. 3. The Accused was first arrested and charged on 29 July 2015. He has been in custody ever since. An application for release pursuant to the Bail Act 2013 was dismissed by this Court on 23 March 2018: R v Warwick (No.8) [2018] NSWSC 354. 4. At the time of the arraignment on 3 March 2017, the trial of the charges was fixed to commence on 19 February 2018. The trial, which was then to be heard before a jury, was anticipated to occupy a time period in the order of six months. 5. On 2 February 2018, the solicitor for the Accused, Mr Alan Conolly, filed a Notice of Motion seeking orders that the date fixed for the commencement of the trial (19 February 2018) be vacated. He also sought an order that the matter not be listed for hearing before January 2019. 6. Orders were made on 9 February 2018 vacating the trial date of 19 February 2018 and fixing the trial to commence on 14 May 2018. Other orders were made dealing with the necessity to ensure that the proceedings were ready for trial. My reasons for those orders were published on 19 February 2018 and are to be found in R v Warwick (No.5) [2018] NSWSC 70. 7. Shortly put, the trial date was vacated because I was of the view that the service by the Crown between October 2017 and February 2018 of additional statements, documents and material intended to be relied upon in evidence required that the accused have additional time to read, understand and deal with those documents. 8. I was also satisfied that such an adjournment would alleviate difficulties, which the Accused had had up to that point in time because of his incarceration in Cessnock, in consulting with his lawyers. 9. Since February 2018 the Court and the parties have been engaged upon addressing a range of pre-trial Motions. Some of these have been dealt with by the Court delivering ex tempore judgments; others have been dealt with by the Court pronouncing orders and reserving reasons, and there remains outstanding a Motion in which the accused seeks relief by way of a directed verdict of acquittal in respect of each of the counts on the Indictment, or, alternatively, an order that each of the counts on the Indictment be permanently stayed. 10. Additionally, although not the subject of a formal Notice of Motion, a hearing in advance of the commencement of evidence has been fixed to take place on 25 May 2018 with respect to an expert, Mr Robert Barnes, whom the Crown proposes to call as part of its case. Whether or not that hearing will go ahead will depend, in part, on the state of health of Mr Barnes. 11. Shortly before delivering this judgment, upon the election of the Accused, which was agreed to by the Director of Public Prosecutions, I have ordered that the trial be conducted by Judge alone. It is unnecessary to speculate as to the reasons behind that application on the part of the Accused, or on the part of the Director of Public Prosecutions in agreeing to that order. 12. However, one thing is plain, which is that as a consequence of the order, the Court has a degree of flexibility in the management of the hearing of the trial, which does not exist when the Court is engaged upon a trial with a jury. As might ordinarily be expected, the process of the taking of evidence in front of a Judge alone is likely to occupy less court time than it would with a jury. 13. The effect of that is that whilst the Crown's estimate that the trial is likely to last for about six months has not changed, the Court can accommodate an adjournment of the proceedings from 14 May without any undue concern as to the consequences upon jury members of an extended period of time engaged in the trial or dealing with applications by jury members to be excused because of arrangements which have been made by them over the holiday period in Australia over Christmas and the New Year. 14. The Accused has submitted that for many reasons, which are said to be both understandable and justified, he is not ready to commence the trial on 14 May 2018. He further submitted that, given that the process of production of documents under subpoena is incomplete, he ought not be expected to embark upon a trial while that production and investigations arising from the documents which have been, or are to be produced, are still incomplete. 15. The Accused also informs the Court that arrangements have been made to retain four experts to assist in the defence of the charges, and who may assist in the cross-examination of any Crown expert. He identifies four areas of expertise, namely, voice analysis, blood and DNA analysis, explosives analysis and ballistics analysis. In the course of the pre-trial debate I was informed that it was anticipated that the explosives expert report would be available by 21 May 2018. It was for that reason that the examination of Mr Barnes was fixed on 25 May 2018. 16. The Crown quite properly does not insist upon the trial commencing on 14 May 2018 and continuing in the usual way, but resists an adjournment of the trial for any significant period of time. Although in the Notice of Motion seeking a vacation of the hearing date, the Accused sought that the trial not commence before February 2019, in oral submissions Mr Conolly, for the Accused, did not press firmly for that order, recognising that it was in his client's interest and the public interest to have as early a start to the trial as was reasonably possible. 17. A further issue arose about whether, if the trial was to be vacated from 14 May 2018, it would be appropriate and of assistance to the Court and the parties if the Crown was called upon to open the Crown case and tender a large exhibit, being the file of the Family Court proceedings between the Accused and his former wife, Ms Blanchard, and then for any adjournment to be granted before the commencement of the calling of evidence. 18. By approaching the case in that way, the Court and the Accused would have a full description by the Crown of the case which it seeks to make against the accused. This would be undoubtedly of assistance to the Court in its preparation for the evidence, and to the accused in his preparation of the trial. 19. The Accused submitted that such a course would not be appropriate in part because the Accused would not be ready at the conclusion of such opening address by the Crown to make his opening address, as is permitted by s 159 of the Criminal Procedure Act 1986. Such an opening address is limited by the legislation to matters disclosed in the prosecutor's opening address, being those matters that are in dispute and those that are not in dispute. By that I mean the ordinary convention is that counsel for an Accused identifies matters that are in dispute or else not in dispute, so that the jury or the judge in a trial by Judge alone are seized of what the matters are likely to be in issue. As well, it provides an outline of matters to be raised by the Accused. Such an opening address is not ordinarily a lengthy one and is not intended to supplant or in any way replace the full opening which an accused is entitled to give in the event that evidence will be called in the case for the defence. 20. The decision on this application, ultimately, is one which requires the Court to determine what is in the interests of justice. Clearly the interests of the Accused in having a fair trial are a matter of significant importance. As well, the fact that the Accused, who has not yet been convicted of any offence and is presumed by the law to be innocent of the offences charged, is presently in custody and has been in custody now for a significant period of time (approaching three years) is a relevant consideration. It is clearly in the interests of the Accused for any period in custody prior to trial to be kept to a minimum, because if he is acquitted of these charges, then the time he has spent in custody ought not be for a moment longer than is necessary. 21. There is also the public interest. It is in the interests of the public for criminal trials to take place as quickly as possible, so that any question about the guilt or innocence of any individual is determined speedily. I do not, by making that remark, suggest that there is in this jurisdiction any legal right of an accused to a speedy trial. But nevertheless there is clearly a public interest in having any accused person brought to trial as quickly as is possible. 22. There are particular features of this case which also weigh heavily in favour of holding a trial as soon as is reasonably possible. Without describing each of those it is sufficient to note that the events, the subject of the trial, occurred over 30 years ago and up to 37 years ago. Witnesses to those events are not young. Their memories will have been affected by the passage of time and it is important that their evidence be taken as quickly as is possible. 23. Where then do the interests of justice lie? On the one hand, the lawyers for the Accused tell the Court in a variety of ways that they are not yet ready for trial; on the other, the trial first came to this Court in March 2017. It has already been fixed for hearing in February 2018 and again in May 2018. Clearly enough, the trial cannot be continually adjourned until some indefinite time in the future. On one hand, there is a public interest in having a trial as soon as possible, and in ensuring that any period of time that the accused spends in pre‑trial custody should be kept to a minimum; on the other hand, the accused is entitled to the benefit of expert reports and adequate preparation so as to ensure a fair trial. 24. In reaching a conclusion about the Motion seeking a vacation of the trial date, there is a need to balance all of those competing interests. Any balance of those interests necessarily does not prefer one interest completely over the other. The Court has to take into account each of the competing interests and find what seems to it to be an appropriate resolution. 25. I should firstly say I am of the opinion that whatever period is allowed for the adjournment it would be appropriate to commence the trial and call upon the Crown to open the Crown case and tender the Family Court file on the day fixed for trial, or at least during the first week of that period. There is a clear and distinct benefit to the Court and to the Accused in having the Crown outline its case and to indicate how it intends to prove the case and the relevance of various parts of the evidence which it proposes to call. In my view, that course will assist the Court and the Accused in any further preparations for the trial. The Accused will have the option of responding immediately with an opening or deferring that option until the commencement of the taking of evidence. In that way, the Accused will not be prejudiced by being required to deliver an opening address immediately. 26. To the extent, as the Accused has submitted, that there may be adverse publicity by not countering by such opening address then I would permit the accused, if he wishes through his lawyer, to make a short opening address informing the Court of his position, which as I understand it, and without seeking in any way to diminish it, is that whilst these offences may have taken place he was in no way responsible for them. His case is that he did not possess the expertise necessary to carry out these offences and so was not capable of undertaking them. Ultimately, the Accused anticipates that the evidence will show there are other people who are far more likely to have committed the offences than him. As well, the Accused does not accept that the Crown will be able to prove the motive which it seeks to rely on, as providing the reason for the Accused committing the offences. 27. The question then becomes: what period of time is appropriate? In my view, it will be appropriate to adjourn the taking of evidence from when it would ordinarily have started consequent upon the trial commencing on 14 May 2018, so as to commence the taking of evidence on Monday 9 July 2018. That is to say, an adjournment of about two months between the Crown's opening and the taking of evidence. During that time, if required, and if the Motion for a permanent stay is pressed, the Court will have sufficient time to consider and deal with that Motion, and any other matters appropriate for a ruling. 28. Accordingly, I make the following orders: 1. I adjourn the hearing of the trial from 14 May 2018 to 15 May 2018. 2. I fix the trial to commence on 15 May 2018, when the Court will sit to hear the Crown's opening address and any opening address which the accused wishes his lawyers to deliver. 3. The Court will then receive, as an exhibit, the whole of the original Family Court file of the proceedings between the accused and his former wife, Ms Blanchard. 4. The trial will then be adjourned to resume the commencement of evidence on Monday 9 July 2018. 5. The Court will sit as required in the period from 15 May 2018 to 9 July 2018 to hear and determine any outstanding issues that can conveniently be determined prior to the commencement of evidence. ********** Amendments 18 February 2020 - Non publication order lifted on 14 February 2020. 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: 18 February 2020