Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.78) [2019] NSWSC 1531 Hearing dates: 02 September 2019 Date of orders: 02 September 2019 Decision date: 07 November 2019 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Notice of Motion dated 2 September 2019 dismissed. Catchwords: CRIMINAL PROCEDURE – Trial – Case management – calling of witnesses – adjournment Legislation Cited: Not Applicable Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown Leonard John Warwick (Accused) Representation: Counsel: K McKay / G Christofi (Crown) I Benson (Accused) Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co File Number(s): 2015/222068 Publication restriction: Suppression order in relation to the names of the Accused's wife and daughter: see R v Warwick (No.7) [2018] NSWSC 236. Judgment 1. On 2 September 2019, after the luncheon adjournment, the lawyers for the Accused filed in court a Notice of Motion seeking various orders precluding the taking of any further witnesses and adjourning the trial for seven days. 2. The orders sought also included a list setting out the witnesses to be called in the next 14 days and more information from the Crown about the evidence to be relied upon to assist in preparation of cross examination of various witnesses. 3. In support of the Motion, the lawyers for the Accused relied on an affidavit sworn on 2 September 2019 by Elizabeth Ramsay, a partner in the legal firm of A R Conolly & Co ("the firm"). 4. The firm withdrew from acting for the Accused in January 2019. Since then, the firm has been acting on a pro bono basis for the Accused on various applications in the course of this year. On 27 August 2019, the firm filed a Notice of Appearance and have resumed acting for the Accused. 5. Having heard argument on the Motion, I made an order dismissing it. I indicated that I would give reasons for that order in due course. These are the reasons for the order made on that day. Evidence in Support of the Notice of Motion 1. In her affidavit, Ms Ramsay described the email correspondence between herself and the solicitor for the Director of Public Prosecutions ("the DPP") dated Friday, 30 August 2019. The correspondence concerned the witnesses proposed to be called by the Crown on the next day of the trial, Monday 2 September 2019. Ms Ramsay drew attention to the emails as the context for justifying her concerns about the limited timeframe that the Accused has had to prepare for cross-examination of the Crown witnesses. She said the following: "14. The Defence is concerned that the calling of witnesses notified to the Defence the working day before the witnesses are to be called severely prejudices the preparation for each witness to be cross examined 15. The Defence and its solicitors are unable to prepare the matter each day under the current timetable of preparation. Even with work each evening and early morning and over the weekend the task is not able to be achieved. …. 24. The Defence is concerned that the cross examination of witnesses in this circumstances must be inadequate and incomplete and therefore unfair to Mr Warwick." 1. At paragraph 16 of her affidavit, Ms Ramsay suggested that a timetable for the calling of witnesses had been set with an expectation of only 10 witnesses a week. 2. At paragraph 18 of her affidavit, Ms Ramsay said that there had been little or no time to "conference potential witnesses prior to them giving evidence". 3. It can be seen that the evidence was directed to the order seeking an adjournment rather than the other orders, which were consequential in effect. Submissions 1. In oral submissions, Mr Benson, a solicitor employed by the firm who is appearing for the Accused, said that in addition to what Ms Ramsay had said in her affidavit, the Accused relied on: "… the speed with which the matter has progressed [in] the last week and the timeframe in which we are being notified of the witnesses to be called, usually the next day, has led to a situation where we haven't been able to properly prepare for cross-examination of those witnesses, particularly the last three that were called before lunch; Ms Bell, Mr Bekavac and Mr Reid. I did my best with those witnesses. It was an unsatisfactory situation. A full investigation of what questions could have been put in cross-examination to them was not able to be made." 1. In the course of submissions, when Mr Benson was asked by the Court to identify what could not be explored with witnesses in cross-examination because of the inadequacy of time for preparation being relied upon, Mr Benson responded: "I think that the point is, your Honour, that we don't know what we don't know and that until a review is made … we don't know what we might find in order to be able to ask enlightened questions in cross-examination." 1. Mr Benson also submitted that the first order was necessary to enable the lawyers for the Accused to have time to arrange conferences with each Crown witness before they were called to give evidence. 2. No specific submissions were addressed to the balance of the orders which were sought in the Motion. 3. The Crown opposed any adjournment and any delay in calling witnesses. The Crown submitted that the matter should proceed. In its oral submissions, the Crown noted: 1. that a list of the witnesses remaining to be called as part of its case had been given to the firm and the Accused in December 2018; 2. the statements of the witnesses remaining to be called we pare of the Crown brief which had been served well before the trial commenced; 3. the subject matter for cross-examination of a number of witnesses to be called would be substantially the same as a number of cross‑examinations already undertaken on behalf of the Accused, and so there was no need for any lengthy adjournment to enable the Accused to be prepared any further for such witnesses; 4. it was open to the Accused, at least prior to the close of the Crown case, to later apply to recall a witness for further cross-examination if proper cause could be shown; and 5. there had already been significant adjournments of the trial to enable the Accused to be adequately prepared to meet the Crown case, and no further delay was necessary, nor appropriate. 1. The Accused did not make any submissions in reply. Discernment 1. The submissions for the Accused about the need for an adjournment were made on an incorrect assumption about a numerical limit on the witnesses to be called each week. At a time when the Accused was unrepresented, the Crown provided him with a list of the first 10 witnesses to be called. A second list with further witnesses to be called was then to be provided. However, the provision of the lists did not suggest a numerical limit nor when witnesses would be called each week. 2. In oral submissions and the affidavit, there was a failure by the Accused to identify satisfactorily why those representing the Accused were not adequately prepared to undertake cross-examination of the witnesses. This is particularly having regard to the lengthy period of time in 2018 (almost 11 months) when the firm had instructions and had undertaken extensive preparation for the defence. 3. As well, there was no identification in respect of any future witness or witnesses of any particular subject matter which had not already been the basis of cross-examination of one or more previous witnesses. It is to be noted that the cross-examination of many of the past witnesses had been conducted in a way which raised similar themes and subject matters. It is unlikely that any further preparation time is needed to explore these well-trodden paths. 4. Finally, the submission by the Accused, and those conducting the defence, "that we don't know what we don't know" is, in the context of this Motion, an unpersuasive one. The adjournment sought does not offer any hope on the available evidence, that this apparently crystallised position of an absence of knowledge will be in any way altered by the passage of time, which is to be used for preparation for future witnesses. 5. The interests of justice require the conduct of a trial in a reasonably timely and expeditious way, consistent with the trial being fair. The orders sought in this Motion substantially seek a pause in the trial to enable the Accused to have further time for preparation. In this long-running and much delayed trial, the granting of an adjournment at this time would not be in the interests of justice. 6. It is my view that no prejudice of any substance has been identified in the submissions for the Accused, which could justify the adjournment sought, or the making of any of the other orders sought. 7. No basis has been shown for the Court to make the other orders in the Motion. 8. Accordingly, for these reasons, the Notice of Motion dated 2 September 2019 was dismissed at the conclusion of submissions. Orders 1. I note that I made the following order: 1. Notice of Motion dated 2 September 2019 dismissed. ********** 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: 07 November 2019