R v Warwick (No.66)

[2019] NSWSC 317

Supreme Court

New South Wales

Medium Neutral Citation:	R v Warwick (No.66) [2019] NSWSC 317
Hearing dates:	15 March 2019
Date of orders:	15 March 2019
Decision date:	15 March 2019
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Notice of Motion filed 7 February 2019 dismissed
Catchwords:	CRIMINAL PROCEDURE – Notice of motion to stay trial until legal representation is arranged – successful application for, and grant of, legal aid – counsel briefed - notice of motion dismissed for reason that representation has been arranged
Legislation Cited:	Not Applicable
Cases Cited:	R v Warwick (No 64) [2019] NSWSC 163
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 / E Ramsay (Accused)   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused)
File Number(s):	2015/222068
Publication restriction:	Not Applicable

EX TEMPORE Judgment (T.6081)

1. On 28 February 2019, I published a judgment which considered and dealt with an application made by the Accused for a stay of the trial until he was legally represented: see R v Warwick (No.64) [2010] NSWSC 163.

2. At that time, the only formal order which was made was to adjourn the proceedings to 6 March 2019 for further directions. This period enabled the Accused with the published reasons for judgment, to make a further application for legal aid.

Grant of Legal Aid

3. On 6 March 2019, when the Court sat for further directions, Mr B Thomas, the Chief Executive of Legal Aid NSW, attended Court. He informed the Court that on 4 March 2019, a grant of legal aid had been made to the Accused on the basis that a solicitor from Legal Aid NSW would act for the Accused and a public defender (or else a barrister from the private Bar) would be briefed by that solicitor to appear for the Accused.

4. Mr E Ozen SC, and Ms S Climo of junior counsel, have appeared today for the Accused seeking an adjournment of the resumption of the trial for a lengthy period of time. That application remains undetermined at this point.

Formal Orders on Accused’s Notice of Motion

5. After some confusion about the identity of the lawyers who appeared for the Accused on the Motion, which necessitated a number of short adjournments, the Court was informed that Mr Conolly of AR Conolly & Co. continued to be instructed by the Accused with respect to the balance of the Motion. There is no need to elaborate on the details of this confusion.

6. After initially making submissions which lacked focus or apparent purpose, Mr Conolly took instructions from the Accused.

7. He submitted that the appropriate order to be made in all of the circumstances was that the Motion brought by the Accused seeking a stay ought to be dismissed. This was having regard to what the Court said in its judgment R v Warwick (No 64), and in light of the events that have occurred by way of a grant of legal aid enabling the Accused to be represented by senior and junior counsel.

8. This is the same submission as that made by Mr Ozen SC earlier in the proceedings.

9. The Crown does not oppose that order being made.

Conclusion

10. In my view, having regard to what has occurred with the appointment of a solicitor from Legal Aid New South Wales and the appointment of senior and junior counsel to represent the Accused, the Accused can no longer demonstrate that the Notice of Motion should be dealt with in any other way.

11. In light of what has occurred, it is appropriate that the Notice of Motion filed 7 February 2019, ought be dismissed

Order

12. I make the following order:

1. Notice of Motion filed 7 February 2019 dismissed.

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