NSW Supreme Court Adjourning Trial Date Due to Late Legal Changes

The court adjourned the trial date of a criminal case due to late changes in legal representation and the service of extensive new evidence without explanation. The court ruled that such reasons were insufficient to vacate the trial date unless it was in the interests of justice.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] (No.5) [2018] NSWSC 70 Hearing dates: 5, 6 and 8 February 2018 Date of orders: 09 February 2018 Decision date: 19 February 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Trial date of 19 February 2018 vacated. (2) New trial date fixed for 14 May 2018. Catchwords: CRIMINAL – Procedure – Application to vacate trial date – late change of lawyers insufficient reason – late service of extensive [NAME] material without explanation – interests of justice Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Family Law Act 1975 (Cth) Cases Cited: R v Alexandroiao (1995) 81 A Crim R R v De [NAME] [2016] NSWSC 499 R v [NAME] (No.2) [2017] NSWSC 1225 R v [NAME] (No.3) [2017] NSWSC 1836 R v [NAME] (No.4) [2018] NSWSC 69 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The [NAME] ([NAME]) Representation: Counsel: [redacted] A [NAME] QC / [NAME] ([NAME])

Solicitors: [redacted] [NAME] ([NAME]) File Number(s): 2015/222068 Publication restriction: Not to be published until after return of verdict by Jury or further order of the Court. Non-publication order lifted on 14 February 2020.

Judgment 1. [NAME] was arraigned in this Court on 3 March 2017 upon an Indictment which contained 24 counts. To each of these counts [NAME] ("[NAME]") pleaded "Not Guilty".

2. The counts on the Indictment may be summarised in the following way: 1. 4 counts of murder contrary to s 18(1)(a) of the Crimes Act 1900; 2. 2 counts of exploding an explosive device which destroys or damages a building with intent to murder a named individual contrary to s 28 of the Crimes Act; 3. 1 count of placing an explosive substance into a vehicle with intent to commit murder, contrary to s 30 of the Crimes Act; 4. 1 count of maliciously placing an explosive substance near a building with intent to damage that building, contrary to s 204 of the Crimes Act, and 5. 13 counts of maliciously, via an explosion, causing grievous bodily harm to named individuals contrary to s 46 of the Crimes Act.

1. In addition to these 21 counts, there are three further counts on the Indictment which are charged in the alternative.

2. Although, as explained below, the criminal conduct underlying the charges occurred between 1980 and 1984, [NAME] was first arrested and charged on 29 July 2015. He has been in custody ever since. 3. [NAME] was arraigned on 3 March 2017, the trial, which was anticipated to take about six months, was fixed to commence on 19 February 2018. Other orders were also made to ensure that the proceedings would be ready for trial at that time.

4. On Friday 2 February 2018, [NAME], in his capacity as the solicitor for [NAME], filed a Notice of Motion in which the following orders were sought: 1. that the hearing listed to commence on Monday 19 February 2018 be vacated; and 2. that the matter not be listed for hearing before January 2019.

1. Because of the proximity, 2 weeks, to the commencement date of the trial, the Court fixed the Motion for urgent hearing on Monday 5 February 2018. At the conclusion of that hearing, after receiving evidence from both parties and submissions from counsel, the Court reserved judgment and indicated that judgment would be delivered orally on Thursday 8 February 2018 at midday.

2. On the evening of 5 February 2018, the Court received an application from [NAME] for leave to re-open the hearing of the proceedings to tender additional evidence. [ADDRESS] heard that application at 10am on Tuesday 6 February 2018. The application was granted, additional documents in about ten volumes were tendered, and the Court indicated that its judgment remained reserved and would be delivered as previously fixed at midday on 8 February 2018.

3. It is appropriate to note that [NAME] was in attendance by audio visual link ("AVL") at the application on 5 February 2018 but the Court was informed that because he was in the process being transported between correctional centres on 6 February 2018, it was not possible for him to be present by AVL at the hearing on 6 February 2018. [NAME] indicated that it was not necessary for [NAME] to be present for that hearing. The transfer was at the request of [NAME] and occurred after consent orders were made by the Court: see R v [NAME] (No.4) [2018] NSWSC 69.

4. On Wednesday 7 February 2018, whilst judgment was reserved, the Court was sent by email a number of further affidavits of a solicitor, [NAME], a member of the firm [NAME]. [ADDRESS] was told that [NAME] wished to rely on these in support of his application upon which the Court had reserved its judgment. Further affidavits followed on the morning of 8 February 2018.

5. When the Court sat on 8 February 2018, for the purpose of delivering its reserved judgment, senior [NAME] sought to rely upon the four affidavits which had been sworn on 7 and 8 February 2018, and to tender a further document contained in a number of volumes. As [NAME] was seeking leave to re-open his application, the Court admitted some, but not all, of the affidavit material, being evidence that could not have been obtained with reasonable diligence by the time judgment was reserved. The balance of the material which was rejected did not fall into that category. The [NAME] opposed any grant of leave to re-open the application.

6. At the conclusion of the evidence and further submissions on 8 February 2018, the Court again reserved its decision until 9.30am on Friday 9 February 2018. On that day, the Court pronounced the orders set out below, and indicated that reasons would follow:

1. The date fixed for the trial of R v [NAME] to commence, being 19 February 2018, is vacated.

2. The trial of R v [NAME] is fixed to commence on 14 May 2018.

3. In the event that the parties are able to agree upon an earlier date for the commencement of the trial, grant leave to the parties to notify the Court of that agreed date on or before 19 February 2018.

4. Order that the [NAME] serve on [NAME] on or before 12 midday 16 February 2018, the following items referred to in the statement of Det. Snr. [NAME]. [NAME] dated 6 December 2017, which consists of 68 pages: (a) the USB identified on page 16 of her statement containing electronic versions of the worksheets; and (b) paper copies reproduced in colour of each of the 43 worksheets referred to in her statement.

5. The [NAME] is to serve all further material upon which it proposes to rely as evidence in the trial by no later than 12 midday 16 February 2018.

6. Without leave first being obtained from the Court, the [NAME] is not to serve any further material which it proposes to lead as part of its case in chief against [NAME] after 12 midday on 16 February 2018.

7. Adjourn the proceedings for pre-trial hearing and directions to 10am on 19 February 2018.

8. Direct that [NAME] be present on that day by AVL.

9. Order the [NAME] and the lawyers for [NAME] to notify each other by letter or email by 12 midday 16 February 2018 of all matters including applications, notices of motion, pre-trial rulings or other pre-trial requirements which each consider it necessary for the Court to determine prior to the commencement of the trial.

10. Direct that when such notification is made, a copy of that notification is forthwith to be provided to my Chambers.

1. These are the reasons for those orders which were made on 9 February 2018.

Nature of the [NAME]

1. The [NAME] case is that in the period between March 1979 and April 1986, [NAME] and his former wife, [NAME], were engaged in strenuously contested proceedings under the Family Law Act 1975 (Cth) with respect to: 1. who should have the custody of and what access arrangements were appropriate for their baby daughter, [NAME]; 2. adjustment of property interests including, but not limited to, the matrimonial home at [ADDRESS], Casula.

1. These proceedings, although initially commenced in the [ADDRESS], were transferred to the Parramatta Registry of the Family Court of Australia in 1979.

2. It is the [NAME] case that in the period between February 1980 and July 1985, there were five discrete episodes of criminal conduct involving a high level of violence to individuals who were connected to the Family Court proceedings, and who had behaved in a way which [NAME] perceived as being contrary to his interests in those proceedings.

3. Included in this group of individuals were [NAME]'s brother, who was shot and killed in February 1980 and Justice David Opas – who was shot and killed on 23 June 1980; in 1984, Justice Gee whose house was destroyed by an explosion, causing Justice Gee to be seriously hurt; and in July 1984, Justice Watson, whose house was destroyed by a bomb which killed his wife and seriously injured him.

4. It is the [NAME] case that Justices Opas, Gee and Watson had each heard aspects of [NAME]'s Family Court proceedings and had made orders or given decisions which were contrary to [NAME]'s interests.

5. The fifth episode is one where the [NAME] alleges that on 21 July 1985, [NAME] placed a bomb at the Kingdom Hall of the Jehovah's Witnesses at Casula, which exploded whilst members of one of the Jehovah's Witnesses congregations was holding a meeting at that Hall. It is the [NAME] case that members of that particular congregation had assisted [NAME] to move to a location on the mid-north coast of New South Wales with her daughter, the address of which was concealed from [NAME]. The [NAME] case is that [NAME] made enquiries of one or more members of the congregation to obtain the address of his wife and daughter - which those congregation members declined to provide. When the bomb exploded at the Kingdom Hall, one person was killed and 13 people were seriously injured.

6. There are two further episodes of criminal conduct relied on by the [NAME] in the indictment. The first is an incident in February 1985, when a bomb was found in a vehicle parked outside a house at Northmead which, the [NAME] alleges, was previously the home of the solicitor who acted for [NAME] in the Family Court proceedings and who was at that time engaged in attempting to enforce Family Court orders that would have had the effect of depriving [NAME] of the former matrimonial home in which he was then living.

7. The second of these two episodes is an event in April 1984, when a bomb was placed outside, but adjacent to a support pillar of, the multi-storey building which then housed the Parramatta Registry of the Family Court of Australia. That bomb exploded and damaged the building.

8. These seven episodes are linked by the [NAME] as relating to proceedings in the Parramatta Registry of the Family Court of Australia, by reason of the identity of the targets. It is the [NAME] case that these offences are linked, that they were all perpetrated by the same person, and that they did not occur as a matter of coincidence.

9. The [NAME]'s case includes evidence that investigators have, through their enquiries, eliminated any other likely suspect for the commission of these offences. The [NAME] says that by application of various rational search criteria to the files of litigants engaged in contested litigation at the Parramatta Registry of the Family Court during the relevant period, and by reference to other facts, matters and circumstances, it can eliminate any other individual as being a likely perpetrator of these crimes.

10. As well, the [NAME] case forensically links [NAME] to the Kingdom Hall, by the presence of bloodstains containing his DNA apparently from a break-in one week before the bomb exploded.

11. The [NAME]'s case includes it leading the evidence in relation to each of the seven episodes of criminality as being evidence not only in respect of that episode, but in respect of each other episode on the basis that the jury would be persuaded that it is unlikely that these events occurred coincidentally. [ADDRESS] has permitted this to occur: R v [NAME] (No.2) [2017] NSWSC 1225.

12. The [NAME] case is very largely a circumstantial one that points to a range of facts and circumstances. The [NAME] will submit to the jury that it ought to conclude that the perpetrator of each of these offences and each of the discrete episodes was [NAME].

Case of [NAME] 1. [NAME] has entered pleas of not guilty to each of the charges on the indictment.

2. Through his counsel, [NAME] has made it plain that he denies that he was in any way involved in the criminal conduct outlined in the seven episodes which make up the [NAME] case. He denies that he had any of the knowledge or technical skills necessary to carry out these crimes, particularly those involving the use of the different kinds of explosives used, and the particular methods of detonation. 3. [NAME] requires the [NAME] to prove each of the seven episodes of criminal conduct, his counsel indicated to the Court that [NAME] does not dispute that the seven episodes of criminal conduct occurred nor that the facts, if proved, would constitute the offences alleged. However, in so informing the Court of that position, counsel made it plain that [NAME] knew nothing of, and was not involved in any way with, the offences. 4. [NAME] has not served an alibi notice, and does not rely on any alibi evidence. Nor has [NAME] given notice of any intention to adduce evidence of substantial mental impairment.

Accordingly, the Court can proceed on the basis that neither of these matters will form any part of the trial.

5. The determination of the application for adjournment proceeds on the basis that [NAME] is entitled to the presumption of innocence with respect to each of the counts on the indictment.

Chronology Since the Arrest of [NAME]

1. It is now appropriate to set out the chronology of events in the [ADDRESS] and in this Court since [NAME] was arrested. 2. [NAME] was arrested on 29 July 2015, and charged with each of the offences upon which he is now indicted. The arrest occurred 35 years after the occurrence of the first charge in the Indictment, and 30 years after the occurrence of the last charge in the Indictment.

3. On the day following his arrest, 30 July 2015, [NAME] was brought before the [ADDRESS] where he was remanded in custody. Bail was not applied for, and it was formally refused. [NAME] has remained in custody at all times since then.

4. Although, on 30 November 2015, a release application seeking bail for [NAME] was filed in the [ADDRESS], when it was listed on 14 January 2016 for hearing, it did not proceed. That application has not been pursued. A release application filed in this Court during 2017 has not been pursued.

5. It is unclear precisely when the [NAME] brief was completed served. In many of the exhibits provided to the Court, the Police Brief, as directed to be served by the [ADDRESS], seems to have been served in September 2015, in both paper and electronic form. The police Brief, I am satisfied, was paginated, accompanied by a comprehensive index and was ordered by rational categories. By no later than 23 August 2016, when counsel briefed for [NAME], filed a 27 page submission in the [ADDRESS] in support of an application pursuant to s 91 of the Criminal Procedure Act 1986, that [NAME] be permitted to cross-examine two specified witnesses as part of the committal proceedings, he must have read the brief and had a reasonable understanding of the [NAME] case otherwise he could not have made the submissions which he did.

6. That submission included the following as an outline of the substantial reasons why the two identified witnesses should be required to attend for cross-examination: "The [NAME] case is circumstantial. It is based upon the assertion that [NAME] was motivated to attack persons he perceived as constituting a threat to his relationship with his daughter [NAME] and that the primary focus of his attack was the Family Court and, in particular, the Family Court judges dealing with his case. The police investigation of other possible suspects (the Joint Federal and State Bomb Task Force ('[NAME]')) identified 1651 possible suspects, being family law litigants whose matters had been dealt with by the three judges who were targeted, Judge Opas, Judge Gee and Judge Watson. Of these 1651 possible suspects, the [NAME] shows that 97 were selected for investigation and that from these, 15 were identified as possible suspects. Of these 15, 12 were the enclosed, leaving [NAME] and two other persons as potential suspects. The process of identification of a pool of suspects (here 1651), together with the process applied to refine that pool down to three and then the process of elimination of everyone but [NAME], is of fundamental importance to the [NAME] case. The existence of other potential suspects provides a reasonable exculpatory explanation which provides an answer to the [NAME]'s circumstantial case against [NAME]. In the absence of that circumstantial case there is no direct evidence linking [NAME] to the offences. The process of identification and, importantly of elimination of other possible suspects is opaque. [NAME], of the [NAME], provide the evidence in relation to the identification and elimination of these other possible suspects who were involved in family court litigation during the period 1976 to 1984 and are in the appropriate position to clarifying the process, so that [NAME] is aware of the precise case against him and he can be assured of a fair trial." (sic)

1. That application was granted and on 6 September 2016, a direction was made for the two witnesses to attend a committal hearing. 2. [ADDRESS] fixed a two week period commencing 5 December 2016, for the committal hearing.

3. On 5 December 2016, the two identified witnesses attended and were cross‑examined in the presence of [NAME], by his counsel.

4. As is apparent from the submissions of [NAME]'s counsel set out above, the subject matter of the cross-examination was the elimination exercise upon which the investigating police had embarked, and the detail of the process by which it was undertaken.

5. At the conclusion of the examination of the witnesses on 5 December 2016, the [NAME] was ordered to file written submissions with respect to the issue of whether the evidence up which it relied was sufficient to warrant the committal of [NAME] to stand trial by the following Wednesday, 7 December 2016. The matter was listed for determination on 14 December 2016.

6. On 9 December 2016, submissions prepared by [NAME], were provided to the [ADDRESS]. These submissions replied to the [NAME] submissions and dealt with the question posed for the Magistrate as to whether [NAME] ought be committed for trial.

7. Annexed to the submissions was a detailed chronology referring to various parts of the [NAME] brief by page number and reference, including the noting of inadequacies in the evidence. In particular, the submissions emphasised the lack of physical evidence from the crime scenes linked with [NAME], and the circumstantial nature of the proceedings.

8. On 14 December 2016, for the reasons which were delivered on that day, the presiding Magistrate committed [NAME] to stand trial in the Supreme Court.

9. The matter was first mentioned in the Supreme Court on 10 February 2017 before the arraignments Judge, and was stood over to 3 March 2017, before me. By that time, I had been appointed to preside over the trial. [NAME] was arraigned before me and entered pleas of "Not Guilty" to each count on the Indictment.

10. In the course of the directions hearing conducted on that day, [NAME], informed the Court that he had had the opportunity of familiarising himself with all of the material that had been served up until then, and that he had held a brief from the start of the committal proceedings. [NAME] informed the Court that he had been provided with a large volume of material in the matter, totalling approximately 100 volumes, but that he understood that not all of that material would be contained within the [NAME] brief, or else would be tendered in evidence.

11. He informed the Court that his client totally denied any involvement in the seven criminal episodes alleged, but that there would be no dispute with respect to the [NAME] case insofar as it alleged and sought to prove that the events had happened. By way of example, [NAME] informed the Court that it would not be in issue that Justice Opas had been murdered by being shot on the date and at the time and in the circumstances outlined in the [NAME] case. However, the issue was that his client was not involved at all.

12. He also informed the Court that there would be a real issue about whether, as the [NAME] alleged, his client had knowledge of explosives, welding and other skills necessary to have undertaken the conduct alleged against him. 13. [ADDRESS] enquired of the parties as to what issues were likely to arise and which could be dealt with by pre-trial determination. [ADDRESS] was informed that there would be a question about tendency and coincidence evidence, that there would be a question with respect to whether the [NAME] could rely upon the evidence of people who were dead or were no longer available to give evidence and, if so, what the content of that evidence would be, and finally, that [NAME] would wish to contest the joinder of all counts in the Indictment together, and the holding of a single trial with respect to all counts on the Indictment. He sought a separation of the counts on the indictment.

14. A further discussion took place about the fixing of a trial date on the basis that the Indictment remained as presented by the [NAME]. The [NAME] and [NAME] agreed that realistically, having regard to the need to determine pre-trial matters, that the earliest the proceedings could be listed for trial in respect of all counts, was 2018. [ADDRESS] fixed the trial to commence on 19 February 2018. [ADDRESS] reserved any question with respect to a commencement date for the trial in the event that any of the counts on the Indictment were separated. 15. [ADDRESS] then made orders for the further progress of the matter. The [NAME] was ordered to file and serve all relevant documents for both the pre‑trial hearing and a Notice pursuant to s 142 of the Criminal Procedure Act by 23 June 2017. [NAME] was ordered to file and serve all documents, including written submissions, relating to the pre-trial matters and a Notice of [NAME] case pursuant to s 143 of the Criminal Procedure Act before 28 July 2017. [ADDRESS] fixed oral argument to take place in relation to all pre‑trial issues in the week commencing 14 August 2017. In the events which occurred, at the request of the parties, the hearing in respect of the pre-trial issues occurred in the week commencing 21 August 2017. Both parties were granted liberty to apply to the Court on two days' notice in the event that any further orders were required.

16. On 23 June 2017, the [NAME] filed and served coincidence and tendency Notices together a significant volume of material including [NAME] case statements in relation to each of the seven separate events, and a summary of the Family Court proceedings together with written submissions. The [NAME] also served Notices seeking to rely on the statements of unavailable witnesses. 17. [NAME] served written submissions objecting to the admissibility of the tendency and coincidence evidence on 3 August 2017. Those submissions opposed the grant of leave to the [NAME] to rely upon the evidence identified in their Notices as either coincidence or tendency evidence, submitted that leave should not be granted to the [NAME] to adduce evidence of the kind identified in its notices pursuant to s 65 of the Evidence Act 1995, and s 285 of the Criminal Procedure Act, and further submitted that the Indictment should be severed into seven separate indictments each relating separately to the counts arising from each of the seven episodes.

18. On 21 August 2017, oral submissions took place on the question of the tendency and coincidence Notices and on the severance application. The submissions concluded in the course of that day and judgment was reserved. On 23 August 2017, oral submissions took place with respect to the evidence to be given by witnesses who were no longer available. Some significant measure of agreement had been reached between the parties with respect to that evidence, and the Court was called upon to give (and did give) rulings with respect to particular statements and reports upon which agreement could not be reached: see R v [NAME] (No.3) [2017] NSWSC 1836.

19. At the conclusion of oral submissions on that issue, the Court embarked upon a general consideration of the steps to be taken to ensure that the trial would be ready to proceed on 19 February 2018, subject to any decision which might be made by the Court with respect to the tendency and coincidence evidence, and the separation of the counts on the Indictment.

20. A direction was also given with respect to the service of a Notice and Summary of Evidence proposed to be adduced by the [NAME] with respect to all relevant Family Court proceedings.

21. On 14 September 2017, the solicitors for [NAME] filed [NAME] response pursuant to s 143 of the Criminal Procedure Act. Insofar as it is relevant to the present application, it noted that [NAME] of counsel had accepted the brief over a year before the Notice. It recorded that [NAME] did not intend to adduce evidence in support of an alibi nor did he intend to adduce evidence of substantial mental impairment.

22. In relation to [NAME] witnesses, it recorded the following: "At this time, [NAME] has engaged the services of two [NAME] witnesses. It has not yet been decided if [NAME] will lead any [NAME] evidence, however, if this is the case, [NAME] will serve any such reports on the prosecution in good time before the commencement of the trial. [NAME] has engaged a [NAME], and ballistics and explosives (IED) [NAME]."

1. With respect to the accuracy of transcripts of prior proceedings, the Notice read: "[NAME] does dispute the accuracy of the transcript of the Coroner's inquest into the death of [NAME], subject to the usual direction being given to the jury at trial."

1. The Notice also indicated that [NAME] did not dispute the authenticity of any disclosed documentary evidence or any exhibit proposed to be led in evidence at the trial.

2. On 6 October 2017, the judgment in R v [NAME] (No.2) was delivered. For the reasons there given, the Court gave leave to the [NAME] to lead the evidence described in its Notices as coincidence and tendency evidence. It rejected [NAME]'s application for separate trials of the counts on the Indictment.

3. At the time of delivery of judgment, the Court made an order that publication of the judgment be restricted until after the return of the verdict by the jury or further order of the Court. Like orders have been made with respect to each other interlocutory judgment in these proceedings, including this judgment.

4. On 13 October 2017, in accordance with the orders previously made, the [NAME] filed and served summaries of evidence, including summaries of the relevant Family Court proceedings, summaries of the records of [NAME]'s roster as a fireman, summaries of items located during search warrants, summaries of interviews provided by [NAME] and, as well, a proposed Agreed Statement of Facts in relation to injuries suffered by victims of the last occurrence, the bombing of the Kingdom Hall.

5. On 15 November 2017, the [NAME] served on [NAME]'s solicitor and counsel, a copy of the list of witnesses it proposed to call at the hearing in the order it was anticipated they would be called. Since that time, on a number of occasions of which the most recent was 6 February 2018, that list has been updated by the [NAME]. Included on that list were the names of witnesses who had died since their statements were taken, but whose statements the [NAME] intended to rely upon.

6. According to the evidence of [NAME], between 2015 and a date in approximately mid-October 2017, a firm of solicitors, [NAME], had acted for [NAME]. It seems that from about the middle or else late in October, [NAME] ceased to act for [NAME].

7. On 24 November 2017, at the directions hearing fixed for that day, [NAME] appeared. [NAME] was present by AVL. He was at that stage at Cessnock Correctional Centre.

8. It is appropriate to note that in the course of previous hearings, [NAME]'s attendance had been secured by AVL in accordance with a request made by his counsel. [ADDRESS] was informed that [NAME] preferred to be present at these hearings by AVL rather than in person.

9. On 24 November 2017, [NAME] appeared and mentioned the matter on behalf of a junior counsel, [NAME]. [NAME] sought the Court's leave to withdraw from the matter, and indicated that [NAME] also sought such leave. 10. [ADDRESS] was informed by [NAME] that, so far as he was aware, [NAME] of counsel was briefed directly in relation to the matter. The following exchange took place between [NAME] and the Court: "His Honour: … [NAME] seeks to be excused from appearing or being retained in the matter. I haven't asked for any detail of that at the moment, and none is supplied presently, but the issue will be, if I were to grant leave, subject to whatever difficulties exist, do you anticipate that that would impact upon the commencement of the hearing of the trial next year? [NAME]: No your Honour. The difficulty I have at the moment is the immediate one of obtaining instructions and getting through to [NAME]. … His Honour: So, if I granted [NAME] leave to withdraw, do you anticipate that [NAME] would appoint another a solicitor? [NAME]: At this stage, no your Honour, but I am hopeful that I will obtain some support along those lines, yes your Honour. His Honour: Thank you. [NAME], has [NAME] terminated your retainer? [NAME]: The basis of my seeking leave to withdraw, and if I can be quite candid, is [NAME] is not eligible for legal aid due to properties that he owns. I have been seeking the sale of a property in [NAME]'s name, a rental property, for some time. As your Honour can appreciate, my 143 notice was unable to be completed due to the fact that I needed to instruct experts and I needed funding. I am now at the point where I had retained [NAME] and, of course, for an extended period of time … And there has been no progress in relation to the execution of the documents relevant for the sale of the house and, as your Honour can appreciate, settlement does take, I think, about 6 weeks from memory and I am unwilling to continue to act in this matter unfunded and without … … His Honour: So he has terminated your retainer and you have accepted that? [NAME]: Yes." 1. [NAME] nor [NAME] sought to correct any statement made by [NAME] in the course of this exchange. On the basis of what I had been told by both [NAME] and [NAME], and without opposition from the [NAME], I granted leave to [NAME] to withdraw as the solicitor for [NAME]. In my view, there was no need to grant leave to [NAME] to withdraw because he did not hold a brief, [NAME] having withdrawn it.

2. Extensive discussion then ensued between counsel and the Bench with respect to the preparations being made, the purpose of which was to ensure that the trial was ready to commence on 19 February 2018.

3. One of the issues which was raised on 24 November 2017 by the [NAME], was a statement in the Notice under s 143 of [NAME] case which suggested that all facts, matters and circumstances relied upon by the prosecution were in issue.

4. An exchange took place with respect to that. It was in the following terms: "His Honour: I don't understand that you don't require the [NAME] to prove that these events occurred. Your statement was that, as you then understood it, you would not be taking issue with the fact that the events occurred, but the [NAME] has to prove them. [NAME]: That's right, precisely your Honour. His Honour: The proposition for which you are contending is that [NAME] did not carry out these acts and was not involved criminally in any way with the crimes which, undoubtedly, occurred. [NAME]: Perfectly correct your Honour. His Honour: It seems to me, if I may say, and it is not a matter for me, but it seems to me beyond doubt – that a series of crimes occurred. The issue is whether your client is responsible for it. [NAME]: Absolutely your Honour. His Honour: That doesn't mean that all of the witnesses called to prove those crimes go without cross-examination, but it does mean, I think, that you accept that you will not put to the jury that a crime of the kind that the [NAME] relies upon did not happen."

1. Further discussion elicited the fact that [NAME] may wish to explore some of the details of the facts led from witnesses called by the [NAME], but not to put that the crimes as alleged by the [NAME] did not occur.

2. Further discussion ensued with respect to the ability of counsel to take instructions from [NAME] with respect to the various summaries and documents which had been served by the [NAME], particularly in light of the fact that [NAME] was situated at Cessnock Correctional Centre.

3. In the course of that discussion, [NAME] raised a query in the following terms: "[NAME]: The question of me having documents pertaining to this trial, where am I going to put them, what privacy have I got and what security have I got to ensure they are not interfered with? … [NAME]: Well, I won't accept any documents at all unless I have privacy and security and the ability to study them, OK. I won't accept them." 1. [NAME], in light of his commitments and capacity to take instructions from his client, sought an extension of the time within which [NAME] was to respond to the [NAME]'s summaries until 12 January 2018. That extension was granted, and the proceedings were fixed for a final directions hearing on 2 February 2018. The purpose of that final directions hearing was to ensure that all outstanding issues had been addressed prior to the commencement of the trial.

2. At that time, [NAME] foreshadowed a formal application being made on 2 February 2018 with respect to an existing issue regarding the non‑publication of previous judgments of the Court and the proceedings which preceded those judgments. [ADDRESS] indicated that any such application would be dealt with on 2 February 2018. It also indicated that it would need to be made formally and supported by an affidavit.

3. At the conclusion of the hearing, the Court directed the parties that if any further applications were to be brought with respect to the proceedings they were to be formulated in a notice of motion which was to be served by 12 January 2018, and that any such motion would be heard on 2 February 2018.

The Adjournment Application 1. Just after 6pm on 1 February 2018, the Court received, by email, a copy of an affidavit of [NAME]. A reading of that affidavit suggested that an application for an adjournment of the trial would be made at the directions hearing on the following day.

2. On 2 February 2018, an oral application, supported by evidence, was made for an adjournment. Senior counsel, Mr A [NAME] QC was briefed by [NAME] to make the adjournment application. [NAME] appeared as junior counsel.

3. An outline of the course of the adjournment application has previously been set out at [6]-[12] above. It is necessary now to draw attention to some parts of the evidence of particular significance.

4. On 5 February 2018, in support of the application, a number of affidavits of [NAME] were read upon which he was cross‑examined. As well, the [NAME] relied upon an affidavit of [NAME]. She was not required for cross-examination. 5. [NAME]'s affidavit and oral evidence revealed the following: 1. he was first contacted about his willingness to accept instructions from [NAME] on either 23 or 24 January 2018. He met with [NAME] of counsel between 26 and 28 January 2018. On 30 January 2018 he received instructions from [NAME] to act for him in relation to an application for an adjournment of the trial and, if successful, a subsequent application for bail; 2. although he was instructed to act for [NAME] on the trial, he was not prepared to act for [NAME] on the trial unless the trial date was vacated and he had the time required to read all of the material which had been served, undertake investigations, retain experts and receive instructions as to [NAME]'s defence. It was apparent from the terms of the Motion that [NAME] regarded one year as the appropriate period; 3. that [NAME] remained engaged as junior counsel; 4. [NAME] was not familiar with what had been done by [NAME] during the committal hearing, in particular with the submissions which had been filed and served with the [ADDRESS]; 5. he is unaware of the detail of what had occurred during the pre-trial hearings in the Supreme Court (including the proceedings dealing with the tendency and coincidence notices), including whether [NAME] had been present during any of the pre-trial hearings; 6. he had only read briefly through the Notice of Prosecution case served in June 2017; and 7. his knowledge of the proceedings is "mainly concerned about the fact that we've been presented with evidence far too late and the issue of what hasn't been done".

1. In his evidence, there was no reference to, or indication that [NAME] was aware of, [NAME]'s position with respect to the [NAME] case, of which the Court had been informed by [NAME]. Nor did [NAME] articulate with any specificity, any issues which he thought were likely to be raised at the trial by [NAME], even if such issues were only provisionally formulated, on the basis of such knowledge as he then had.

2. In his affidavit, [NAME] drew attention to matters relating to the service of the [NAME] brief, to which it will be necessary to return, his belief that the [NAME] had not undertaken appropriate preparation, and that the custodial arrangements with respect to access to [NAME] after he had been moved to Cessnock Correctional Facility in October 2017 had made it difficult to have conferences with [NAME] and to communicate with him. In addition, he drew attention to some matters with respect to the health of [NAME] and the lack of family support for [NAME] whilst he was incarcerated in Cessnock. [NAME] also said that his understanding was that [NAME] had not read the [NAME] brief, and that he did not have access to a computer to enable an electronic version of the brief to be read. He had not been given a paper copy of the brief.

3. It is convenient to note here that leave was granted by the Court on 2 February 2018, to file a Notice of Motion and serve it on the Commissioner for Corrective Services, by which [NAME] sought orders with respect to being returned to a correctional facility in Sydney. On 5 February 2018, the Court was informed that agreement had been reached between the solicitors for [NAME] and the Commissioner for Corrective Services for such a transfer to take place. [ADDRESS] was further informed on 6 February 2018, that [NAME] was being transferred from Cessnock to the Metropolitan Remand and Reception Centre at Silverwater on that day. As it has turned out, the transfer did not occur on 6 February 2015, but it had been completed by 8 February 2018. 4. [NAME]'s evidence by way of an estimate was that it would take four weeks for [NAME] to read the [NAME] brief if he was able to review the material every day, that it would take him four weeks to review the evidence in the [NAME] brief with [NAME] and to obtain instructions from him with respect to it. He said it would require at least eight weeks for "investigations to be carried out by the solicitors … in relation to the documents and history within the [NAME] brief". Those possible investigations were not otherwise particularised. 5. [NAME] then said that [NAME] would require three months to identify experts, qualify them and confer with them. He said this: "The experts who should be retained are in the areas of pathology, including in relation to bodies submerged in water, blood (including groupings), DNA analysis, ballistics, explosives, particularly in relation to IEDs, weapons, identification of ropes, identification of bricks, fingerprints, voice identification, handwriting and Identikit identification."

1. It was not stated, nor was it in any way articulated, what matters those [NAME] witnesses would be asked to address, nor to what issue any such evidence would go. Rather, the assertion was a generalised one, seemingly touching on all possible areas of expertise which formed a part of the [NAME] case. 2. [NAME] also pointed to the fact that in his view, a proper defence of the proceedings required "a competent legal team, including at least two counsel".

3. Finally, [NAME] made clear that he would not be able or willing to act in [NAME] of the charges for [NAME] "… on the basis of the current state of preparation of [NAME]". He also referred to the ongoing service of material by the [NAME]. It is appropriate to now consider that matter.

[NAME] Service of Documents 1. The Notice of the prosecution case in compliance with s 142 of the Criminal Procedure Act was ordered to be served by 30 June 2017.

2. Section 142 of the Criminal Procedure Act is in the following form: "142 Prosecution's Notice (1) For the purposes of section 141 (1) (a), the prosecution's notice is to contain the following: (a) a copy of the indictment, (b) a statement of facts, (c) a copy of a statement of each witness whose evidence [NAME] proposes to adduce at the trial, (c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement that [NAME] intends to adduce at the trial, (d) a copy of each document, evidence of the contents of which [NAME] proposes to adduce at the trial, (e) if [NAME] proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary, (f) a copy of any exhibit that [NAME] proposes to adduce at the trial, (g) a copy of any chart or explanatory material that [NAME] proposes to adduce at the trial, (h) if any [NAME] is proposed to be called at the trial by [NAME], a copy of each report by the witness that is relevant to the case, (i) a copy of any information, document or other thing provided by law enforcement officers to [NAME], or otherwise in the possession of [NAME], that would reasonably be regarded as relevant to the prosecution case or [NAME] case, and that has not otherwise been disclosed to the [NAME], (j) a list identifying: (i) any information, document or other thing of which [NAME] is aware and that would reasonably be regarded as being of relevance to the case but that is not in [NAME]'s possession and is not in the [NAME]'s possession, and (ii) the place at which [NAME] believes the information, document or other thing is situated, (k) a copy of any information in the possession of [NAME] that is relevant to the reliability or credibility of a prosecution witness, (l) a copy of any information, document or other thing in the possession of [NAME] that would reasonably be regarded as adverse to the credit or credibility of the [NAME], (m) a list identifying the statements of those witnesses who are proposed to be called at the trial by [NAME]. (2) The regulations may make provision for or with respect to the form and content of a statement of facts for the purposes of this section. (3) In this section, 'law enforcement officer' means a police officer, or an officer of one of the following agencies: (a) the Law Enforcement Conduct Commission, (b) the New South Wales Crime Commission, (c) the Independent Commission Against Corruption.

1. As can be seen, the Court's order requiring the [NAME] to serve a Notice in accordance with s 142, required the [NAME] to serve a statement of each witness whose evidence was to be adduced at the trial. A sensible application of this requirement, in this case, meant that the [NAME] did not have to serve again any of the statements which were contained in the 2015 Police Brief. The same would apply to experts reports which had been included in that earlier Brief. However, what was required was that by the end of June 2017, the [NAME] was to have served at least a list of the earlier witness statements which it intended to adduce at trial, together with all additional statements and [NAME] reports which the [NAME] intended to adduce in evidence.

2. As part of its notice, the Office of the Director of Public Prosecutions said: (d) … all statements and documents proposed to be relied upon at this time by the prosecution have been served as part of the Brief of Evidence. The Brief index (Annexure "C") itemises material comprising the Brief of Evidence served to date."

1. The Notice also said that "all [NAME] statements have been served as part of the Brief of Evidence". It further said with respect to the witnesses proposed to be called at trial, this: "A copy of the list of witness statements is attached to this Notice (Annexure "E"). Please note that this Witness List is subject to review and additional witnesses may need to be called."

1. The list of witnesses attached as Annexure E nominated 118 people, in alphabetical order, divided into two categories – namely police witnesses and civilian witnesses.

2. The Brief Index referred to as Annexure "C" consisted of 26 pages, arranged in a logical manner. The evidentiary material relevant to each episode was listed by reference to that episode - the episodes were listed chronologically; then came the entirety of the Family Court file relating to [NAME] and [NAME]. The Brief also contained, by identified category, various other documents which the [NAME] proposed to tender. It included 30 documents described as "Witness Statements that relate across multiple incidents". Each of the documents in the Brief were paginated.

3. Finally, the Index, which appears to be similar to that served by the Police in September 2015 during the committal proceedings, was supplemented by the addition of four more statements, each of which was served in June 2017 and the last of which was served on 22 June 2017. It appears that one of those statements was of an [NAME], who had previously provided a statement.

4. The Notice of Prosecution case also required the [NAME] to serve a Statement of Facts. The [NAME] did so by serving [NAME] case statements in respect of each of the episodes of criminal conduct and also a [NAME] case statement describing evidence that related to multiple matters.

5. Of relevance in this last [NAME] case statement were the following paragraphs: "24. In 1984 Police asked the Family Court to provide them with the Court files for all defended matters heard at Parramatta between January 1976 and 4 July 1984, where the matter had been heard by any of Justices Opas, Gee or Watson. In response to this request, they were provided with about 1,600 files. A team of police officers reviewed each of these files in detail, a process which commenced in November 1984 and concluded in October 1985.

25. A summary of the Court proceedings in relation to each of the files was created. The summary included the nature of the dispute, the various orders made and when they were made, the conduct of the litigants and other matters. Criteria were established whereby matters would be identified for further investigation, or be eliminated from requiring further investigation. These criteria included, for example, whether either party had threatened violence towards the family court or its judges, and whether either party had a background in military services, explosives or welding.

26. By following this process, the police actively investigated hundreds of potential suspects. At the end of the year-long process, the police eliminated every suspect except three from the investigation …"

1. The [NAME] case statement identifies [NAME] and two other named individuals as the remaining suspects. The statement goes on to describe the police investigations with respect the other two named suspects, and the facts surrounding their potential involvement. It is the [NAME] case that these two individuals can be eliminated as suspects for the crimes with which [NAME] is charged.

2. It is to be recalled that two of the significant participants in the "elimination exercise" undertaken by the police in 1986, namely Messrs. [NAME] and [NAME], were the subject of the application made by [NAME] pursuant to s 91 of the Criminal Procedure Act during the committal for leave to cross‑examine those former officers.

3. The evidence shows that since June 2017 a number of documents have been served. Some, but not all, of these documents have been served by way of ongoing disclosure by the [NAME] of material consistently with a [NAME]'s obligations, others are statements by existing witnesses formally adopting documents and statements previously provided, and some are new. [NAME] reports have been obtained and served. As well, at the request of [NAME] of counsel, the [NAME] has provided him with further copies of documents which had previously been served.

4. According to material put before the Court by the [NAME] on this adjournment application, all of the material upon which it proposes to rely has now been provided with the exception of a statement which may possibly become available as a result of further enquiries presently being made by police with respect to obtaining a sample of human hair that can be used for the purpose of mitochondrial DNA analysis. This further [NAME] evidence does not seek to implicate [NAME] but, rather, seeks to identify whether another possible suspect in the murder of Justice Opas can be excluded as being the source of the hair. When and if such a report may appear is quite unknown.

5. Some, but not all, of the additional material has been tendered to the Court for the purpose of this application.

6. According to the [NAME]'s evidence which I accept as accurate, since 14 November 2017, it has served on [NAME] a total of 43 statements which had not previously been served, three [NAME] reports or statements and 23 new documents or groups of documents 7. Three of the statements deserve some additional attention. Each relates to the elimination process engaged in by the police investigators in 2017. The author of two of the statements is [NAME], the other statement is that of [NAME]. The three statements address the process undertaken by police in 2017 of elimination of other individuals who are possible suspects implicated for the offences involving Family Court judges and the Family Court building. Supporting material for these statements, namely the Family Court files for various of the individuals named, were also served. That supporting material was contained in about 10 volumes of material. Five of those volumes contained unpaginated bundles of copies of various Family Court files for named individuals.

8. When the proceedings were relisted on 6 February 2018, [NAME] tendered 15 volumes of paper which had been received in December 2017 and which, speaking generally, largely consisted of copies of Family Court files. Two of those volumes relate to documents from [NAME]'s Family Court file. A perusal of those indicates by reference to the footer, that they were part of the police brief at the committal and served in September 2015. Three of the volumes relate to proceedings in the Family Court involving a [NAME], who was identified by police in the course of their early investigations as a possible suspect.

9. Two volumes relate to an individual variously named as [NAME] or Abdoo. Those volumes are referred to in one of the statements of [NAME] and contain running sheets, interview documents with [NAME] and details of his Family Court proceedings. According to the statement of [NAME], and the attachments, [NAME] was eliminated as a suspect after considerable investigation, in part because he did not, in the course of his Family Court proceedings, come before Justice Opas. As well, information received that he had attended the funeral of Justice Watson's wife was thoroughly investigated and found to be untrue.

10. The final two volumes contain a statement of [NAME] who has undertaken investigations to answer three questions by reference to documents in the possession of police. The statement represents a follow up to work which was done at the time of the investigations in 1986 by the then [NAME] and the material in his statement from 2016 with respect to the analysis he undertook to eliminate litigants in the Family Court as possible suspects. The questions which [NAME] sought to answer were these: 1. which litigants at the Parramatta Family Court had their matter heard before or adjudicated by all three Justices: Justice Opas, Justice Gee and Justice Watson; 2. of these litigants, how many were represented by Ledlin Watts & Associates Solicitors in Family Court proceedings at the Parramatta Family Court between the years 1980 to 1985; and 3. for those litigants whose matters were heard or adjudicated at the Parramatta Family Court before Justices Opas, Gee and Watson, and involving representation by Ledlin Watts & Associates Solicitors, who are the involved parties. 1. [NAME] noted that the relevant proceedings were those regarded as defended or contested proceedings.

2. I have carefully read the statement, and taken notice of the extensive annexures. In particular, the methodology of elimination, and how [NAME] went about her task, has been explained in considerable detail. Although no particular submission was directed to this statement and the annexures to it, it is appropriate to notice some features of it. The first is that [NAME] seems to have set about, doing afresh, that which was done in 1986. The second is that her statement which consists of 68 pages (not including annexures or attachments) contains a description of the steps by which she undertook her elimination exercise. Critical to those steps was the creation of 43 separate worksheets. It was through the use of these worksheets that [NAME] eliminated individuals who did not meet her search criteria.

3. Although the statement notes that the 43 worksheets are contained on a USB memory stick, it does not seem that that USB memory stick, or any paper copies of the worksheets, were included in the material served by the [NAME] on [NAME].

4. Whilst it is possible to follow the process that [NAME] undertook, which appears to be logical, from the description that she has given, it is not possible without those worksheets to be able to satisfy oneself that the work she has done produces the result for which she contends.

5. No explanation was provided by the [NAME] as to the absence, either in electronic or paper form, of the worksheets which seem to me to form an integral part of the process undertaken by [NAME]. As well, no explanation was provided by the [NAME] as to when it was that it was decided to undertake this elimination exercise, and why it was necessary.

Accordingly, there was no explanation proffered which attempted to explain or justify the later service of the material, other than that it was served promptly by the [NAME] once it had been given to it by investigating police.

6. One further document to which attention was drawn in the context of the elimination process undertaken by police investigators, is the amended [NAME] case statement entitled "Evidence that relates to multiple matters". In particular, that document relates to one of the eliminated suspects, [NAME]. Two annexures to the amended [NAME] case statement have been added. One contained a summary of evidence and information gathered by police and referrable to [NAME] and consisting of 47 pages, and the other consisting of 17 pages was a convenient table setting our chronologically the details of the Family Court proceedings involving [NAME]. Three volumes of documents constituted [NAME]'s Family Court proceedings and proceedings involving charges of contempt against him which were provided in December 2017, appear to support the contents of the table and summary description.

7. Of the statements provided by the [NAME], many can properly be regarded as being of a routine or formal nature. By that I mean a number of the statements simply adopt as accurate various running sheet entries in police investigation records, or adopt as accurate transcripts of interviews undertaken with various witnesses, or else provide a logical overview for various parts of the investigation, the details of which have previously been disclosed.

8. Doing the best I can, without the assistance of any specific submissions from [NAME], it appears that there are 12 of the statements served and three [NAME] reports served, which can be properly regarded as entirely new material. I include in this the statements of [NAME] and [NAME].

9. In the balance of the statements, there is very little material which, upon my assessment, would constitute new or unexpected material. It is not material which seems to me to require a great deal of time to be spent in the preparation of the proceedings in order to understand the statements and assimilate them into the existing brief. There are other statements which, whilst new, may be regarded as providing some clearer and more chronological explanation of detail previously provided.

10. For example, the [NAME] has served a statement from Justice Gary Watts (as his Honour now is), who was the solicitor for [NAME] in the Family Court proceedings involving [NAME]. A careful reading of that statement indicates that what has occurred is that the police have obtained a comprehensive overview statement from Justice Watts in a chronological way setting out all of the detail of the Family Court proceedings by reference to documents which had previously been provided and by reference to specific page numbers in the police brief of evidence.

11. No specific submission was addressed with respect to this document, but it hard to see in the context of all that has previously occurred that any significant prejudice arises from this comprehensive statement which pulls together a large amount of material from identified existing sources, in a comprehensive and chronological fashion which is in fact easier to read and understand than the earlier material.

12. The [NAME] also tendered a list providing an Order of Witnesses for trial current as at 30 January 2018. This order of witnesses comprises 248 witnesses whom it is anticipated will give evidence, or else in respect of which evidence will be adduced, in the order in which it is intended to call them. Of that number, 22 are deceased and, accordingly, the [NAME] will seek to rely upon statements previously given. As well, a number of witnesses are listed on multiple occasions – that is because they give evidence relating to more than one episode of criminal conduct, and it is convenient for the [NAME] to call them to give their evidence in part as the chronology of each episode unfolds so as to enable the jury to more readily follow the evidence in respect of each episode. When called more than once, these individuals are numbered as "new witnesses". From correspondence, it appears that [NAME], as [NAME], has indicated to the [NAME] that he does not want to cross-examine a number, approaching 40, of these witnesses. That number may increase upon further consideration of the evidence.

13. However, even allowing for these matters, the Order of Witnesses demonstrates that the [NAME] now proposes to call many more witnesses than were referred to in its Notice served on [NAME] in June 2017.

Submissions of the [NAME]

1. The [NAME] opposed the application. It submitted that [NAME] had not established any proper basis for an adjournment of twelve months, and that it would be contrary to the interests of justice for the trial to be adjourned for such a lengthy period.

2. In support of this submission, the [NAME] pointed to the content of the pre-trial proceedings in this Court as demonstrating that, contrary to [NAME]'s evidence, the case for [NAME] was properly prepared by counsel who had a thorough and comprehensive knowledge of the brief, and there was no reason for the Court to accept that the additional material served by the [NAME] could not be assimilated by counsel prior to the commencement of the trial. As well, the [NAME] relied upon the summaries of evidence which it had provided as being of significant assistance to [NAME] in understanding the [NAME] case thereby enabling an easier preparation of his defence. The [NAME] put, in a very general way, that the additional material which had been served since November 2017, was largely served to tidy up some "loose ends" and was more formal than substantive. To the extent that the statements were substantive, the [NAME] seemed to suggest that the contents would not be unmanageable for [NAME].

Submissions of [NAME]

1. The submissions of [NAME] in support of the application for adjournment were encapsulated in the following broad statement in [NAME]'s affidavit: "From my experience as a lawyer of 52 years, there is no prospect of [NAME] having a fair trial due to the conditions in which he has been held, the failure to provide facilities in which he could read and understand the [NAME] brief and provide instructions and participate in his defence and to provide instructions for investigations to be undertaken and experts retained to provide opinion and to participate in [NAME] of the charges before the Court."

1. In the course of submissions, grounds which were specifically articulated were that the proceedings on behalf of [NAME] had not been properly prepared and that considerable work needed to be done so as to ensure that [NAME]'s case was ready for a trial. It was also submitted that the case was of such a size and complexity as would demand a competent legal team including senior and junior counsel. Finally, [NAME] pointed to the significant additional [NAME] material which had been served within the three months preceding the application which was required to be read and understood in the context of the issues which fell for trial.

2. It was submitted that these grounds were to be understood in the context of the custodial conditions of [NAME], including his inability to access the [NAME] brief, the limited times when his lawyers could visit him, the difficult conditions in which legal visits were held, and his custodial location outside Sydney.

3. Further, in support, not just of the need to vacate the hearing date, but also of the proposed length of adjournment, about 12 months, [NAME] deposed, as I understand it, that it would take 16 weeks, initially, for [NAME] to read the [NAME], for [NAME] to review the [NAME] with [NAME] and obtain instructions from him, and to carry out investigations in relation to the documents and history within the [NAME], during which time ongoing instructions would need to be obtained from [NAME]. After that period, [NAME]'s evidence was that [NAME] would require three months to identify experts, qualify them and confer with them. After that period, [NAME] anticipated that the [NAME] would require the opportunity to obtain its own [NAME] evidence in response. As well, [NAME] pointed out that the period proposed by him would not be able to start until the [NAME] had completed service of its Brief and, in particular, any [NAME] evidence and investigations upon which it intended to rely. It was based on this predicted time period that [NAME] sought an adjournment for a minimum of 12 months.

Discernment 1. I have considerable reservations about accepting the evidence of [NAME] in its entirety and according it full weight.

2. There are a number of reasons for this. The first is that, as [NAME] frankly conceded, he had not had the opportunity of having anything other than a superficial understanding of the [NAME] case, and was unaware of the interlocutory proceedings which had taken place including, so it seems, the issues which [NAME] had previously indicated to the Court would be the thrust of [NAME]'s case. Putting it differently, [NAME] was taking the approach that, so far as he was concerned, nothing at all had been done to understand the [NAME] case against [NAME] and for counsel to be in a position to conduct [NAME] of the case seemingly without a reasonably well informed basis for reaching that opinion 3. Secondly, the position adopted by [NAME] is directly inconsistent with assurances given to the Court by [NAME] during previous directions hearings about the state of readiness for trial. Having regard to the fact that that counsel, [NAME], continues to be instructed for [NAME], including by [NAME] on the adjournment application, there is no reason to doubt the accuracy and sincerity of counsel's assessment, nor its ongoing validity.

4. Thirdly, [NAME]'s expression of opinion was made in ignorance of the rather detailed submissions made by [NAME] of counsel during the committal, and to this Court during argument on the questions arising from tendency and coincidence notices which were previously dealt with by this Court, which submissions demonstrated that counsel had a thorough knowledge of the [NAME] case, was on top of the brief with which he had been provided, and had a clear strategy for [NAME] of his client which strategy does not seem to have changed since [NAME] was instructed.

5. Fourthly, it seems that [NAME]'s approach, which underpinned the opinion expressed by him and noted above, was that he concentrated on "… what I can see hasn't been done and what new [[NAME]] evidence has been presented".

6. Fifthly, [NAME] was unaware of whether or not his client had been present during any of the pre-trial proceedings in this Court, nor during the committal proceedings.

Accordingly, to the extent that he asserted that his client was unaware of the contents of the [NAME], that did not take into account the presence of [NAME] in court during the committal proceedings and during the pre-trial proceedings in this Court. To the extent that the adjournment application was based upon a necessity to undertake further investigations including retaining experts in the fields nominated, it is difficult to see what that exercise is intended to either address, or else produce by way of any opinion of use in the case for [NAME]. For example, any [NAME] evidence relating to identification of ropes, voice identification and handwriting, appear to be at the very periphery of the [NAME] case if they are at all relevant. What may emerge from these experts in relation to the identified issues in the [NAME] case was not addressed by [NAME]. It remains elusive.

7. In R v Alexandroiao (1995) 81 A Crim R, the Court considered the issue of whether an adjournment ought to have been granted by a trial judge. [ADDRESS] at p.291 said that the trial judge was entitled to consider whether the future proposed course "… would result in a reasonable possibility that material of substantial assistance to [NAME]'s case would be obtained if the trial were delayed in the way sought". See also R v De [NAME] [2016] NSWSC 499.

8. The evidence adduced in support of the twelve month adjournment in so far as it proposed obtaining additional [NAME] evidence did not establish that such an adjournment may (let alone would) establish any (let alone a reasonable) possibility that material of any (let alone substantial) assistance would be obtained for [NAME]'s case. This submission provided no compelling basis for the adjournment sought.

9. To the extent that [NAME] does not feel able to represent [NAME] at the trial fixed to commence on 19 February 2018, that is entirely due to the action, or perhaps more accurately, the inaction of [NAME]. If [NAME] was unhappy with the services of his first solicitor then there is no reason to suppose that he could not have terminated the retainer much earlier than he did. But there is no evidence of any discontent prior to the retainer of [NAME] being terminated by [NAME] at the latest by the end of October 2017. The basis of the termination of the retainer was said by [NAME] to be that [NAME] was not adequately funding his defence. This explanation has not been challenged. [NAME] did not at that time terminate the retainer of [NAME] of counsel.

10. However, [NAME] did nothing at all about retaining any further solicitors for a period of about three months until approximately three weeks before the trial was due to commence. No explanation was proffered as to why [NAME] did nothing during that time. There was no evidence that he had asked [NAME] to assist him to find a firm of solicitors. There was no evidence or suggestion that [NAME], notwithstanding his somewhat oblique reference to the issue in Court on 24 November 2017, had in fact asked [NAME] to instruct solicitors or additional counsel to assist him with the burden of preparing for, and presenting, [NAME]'s case at trial.

11. Nor is there any adequate explanation as to why [NAME] terminated the retainer of his previous solicitors. The only explanation provided to the Court was that the solicitors had not been funded. That explanation was provided to the Court in the presence of [NAME], and there was no demur from him. The provision of funding for his defence is a matter entirely for [NAME]. However, if he refrains from funding one firm of solicitors, and does not take steps to instruct another solicitor for some months, in the critical period leading up to the commencement of his trial, then it cannot be said that the inability of the solicitor, only recently instructed, to be ready for trial is a matter upon which the Court should place significant weight. Particularly is this so, because the essential nature of, and the size of the [NAME] case against [NAME] was known to him by mid-2016 at the time when consideration was being given by his then legal team as to which witnesses, if any, they would seek to cross-examine during the committal hearings.

12. I accept that it may be desirable for an [NAME] to have the legal representatives of their choice to act and appear for them at a trial. But that desire does not automatically mean that to ensure a fair trial the Court must always accommodate [NAME] in this respect without regard to all of other matters and circumstances.

13. A further matter upon which [NAME] relied was the late service of, and the volume of, additional material by the [NAME] at a time proximate to the commencement of the trial. There is no doubt that the volume of the material served was significant. It would take time for it to be read and absorbed by [NAME]'s counsel and any lawyer instructed for him.

14. However, an assessment of that material, in the context of the identified issues anticipated to be raised at the trial, and taking into account that only a part of that material can be properly categorized as being wholly new, necessitates a consideration of a reasonable length of time to enable competent counsel with background knowledge sufficient to appear at the trial to read and understand that material to ensure that when it is adduced in evidence, it can be properly addressed. There was no specific evidence adduced as to how long it was anticipated such a period would be. [NAME] estimated a period of four weeks for [NAME] to read the brief. No evidence was led about any estimate made by [NAME], nor was his view advanced by senior counsel from the bar table. It is a matter for the Court to make as accurate an assessment as it can. This I have done.

15. One of the additional reports served by the [NAME] contained the results of additional DNA testing. It is a part of the [NAME] case that a week before the bomb exploded at the Kingdom Hall of the Jehovah's Witnesses, a break-in had occurred by the person responsible for placing the bomb so as to reconnoitre the Hall. When the break-in was investigated, the police identified a number of areas of blood stains on a piece of carpet, and on some cardboard. It is the [NAME] case after DNA testing that this is the blood of [NAME]. The additional DNA testing which was done in November 2017 examined a number of other areas on the piece of carpet and the cardboard. Not all of the areas examined enabled a DNA profile to be recovered. Some did, and the DNA is said by the [NAME] to be that of [NAME]. One area which was tested revealed a mixed sample of DNA. The major component was identified as likely to be that of [NAME]. The minor component was unable to be matched to any identified or known individual. The [NAME] report was obtained within four weeks of the examination and testing being carried out. Senior [NAME] submitted that it would be of importance to [NAME] to have the opportunity to retain a [NAME] to address this additional report, because of the significance to [NAME] of there being some DNA from another person on the carpet, thereby raising a prospect of contamination of the sample, enabling an adverse conclusion to be reached about the accuracy of the entire sampling which has been undertaken.

16. Senior counsel submitted that, contrary to what had been said by the previous solicitors about having a [NAME] retained, in fact there was no report from such an [NAME]. He submitted that it would be necessary for one to be identified and retained. It is appropriate that [NAME] have such an opportunity. However, on the evidence before me where the [NAME] carried out his work in no more than four weeks, there is no reason to conclude that any period much longer than that would be necessary for [NAME]. As well, it should be noted that the [NAME]'s [NAME] will be unlikely to be called to give evidence until towards the end of the [NAME] case. A period of four to six weeks will be adequate for [NAME] to address this issue. A similar period will be adequate to address the [NAME] report of [NAME] who deals with the behaviour of, and recovery of the human skin and body after receiving one or more cuts and lacerations. Even though I have not been satisfied that the requisite test has been met with respect to all of the experts in the fields nominated as discussed above, and certainly not for the period claimed by [NAME], I am satisfied that a more limited opportunity ought to be allowed for experts in these two identified areas. 17. [NAME] relied upon the difficult conditions of incarceration as having prevented him from properly preparing for his trial. There was some, but limited, evidence of these difficulties. It appears that for a period of up to six weeks after [NAME] was first transferred to Cessnock, that [NAME] of counsel had difficulty because he was not authorised to make telephone calls to [NAME] to discuss matters over the telephone with him. As well, what was said to be operational requirements of the particular correctional centre led to arranged legal conferences being cancelled at short notice, or without forewarning. [NAME] also drew attention to the fact that his legal conferences with [NAME] had been conducted in cubicles with a pane of glass between him and his client, in circumstances where he was unable to hand any document to his client.

18. There was no evidence led with respect to any specific difficulties in the custodial conditions of [NAME] prior to his transfer to Cessnock. Clearly, [NAME] does not have possession of a paper copy of the [NAME] brief. It is not possible to know why that is so. Equally, it is not possible to know why he does not have access to an electronic version of the [NAME] brief. Arrangements can be made for individuals who are in custody to have access to computers or devices which are configured to enable inmates of correctional centres to access electronic material. No information has been provided to the Court as to what arrangements have been sought to be made, and what attitude to those requests has been shown by the relevant correctional centre staff.

19. However, I accept that since [NAME] has been incarcerated in Cessnock, there has been disrupted access to his lawyers as a product of the conditions applying there to his incarceration and to an extent limited in time to about three months, that disruption has occurred from time to time.

20. One final matter which was emphasised, particularly by senior [NAME] was that the length and complexity of the anticipated trial meant that [NAME] of [NAME] required two counsel to be briefed, and instructed by a competent legal team. According to the transcript of November 2017, [NAME] had a similar but not identical view as to what was an appropriate number and legal or forensic skill for the proper defence of [NAME]. There is no reason to think that careful consideration had not been given to the matter at an earlier time. [NAME] notice under s 143 of the Criminal Procedure Act recorded that two counsel had been briefed. The matter of the number and legal skills of the lawyers to defend [NAME] is clearly a matter which did not first arise after [NAME] was instructed to act for [NAME]. It had been an integral part of the preparation of [NAME]'s defence in the latter half of 2017. If the correct number of lawyers, with the appropriate skill level have not been retained by 2 February 2018 to appear for [NAME], no reason has been proffered as to why that is so. There is no suggestion that [NAME] was unaware of the fact that two counsel had been briefed by [NAME]. Nor is there any explanation as to why other counsel or lawyers had not been retained more promptly after [NAME] of counsel and [NAME] had their retainer terminated.

21. Whilst it may be desirable for [NAME] to have a team of lawyers to assist him in his defence, I would conclude that there was no reason why arrangements could not have been made very much earlier than the start of February 2018, and that the failure to make arrangements should not of itself and without more result in an adjournment for twelve months.

22. The granting of an adjournment, which includes the vacation of a hearing date for a long trial which had been fixed for about twelve months in all of the circumstances revealed by the evidence requires the balancing of a number of factors, many of which have already been mentioned. It is proper to keep in mind at all times that the trial of [NAME] should be fair. Other matters include the public interest generally in the finalization of charges against an [NAME], particularly in circumstances as here exist that [NAME] has been in custody for a little over 2 years and 6 months prior to his trial starting. The adjournment sought would extend that time by 12 months. There is a public interest, where as is here the case that the length of time since the events the subject of the proceedings occurred is very long, that witnesses have their evidence heard as soon as possible, and that the victims of the crime have the proceedings finalised as soon as possible. As well, There is also a public interest in having trials which have been subject to case management start on the date allocated particularly when a long trial is in prospect and the date has been fixed for a considerable period of time.

23. I have taken all of the matters into consideration. As well, I have carefully weighed the submissions of counsel. I have given particular weight to the need for [NAME] to have a fair trial. Having done so, it was clear to me that the trial could not fairly commence on the date fixed because of the late service by the [NAME] of the additional statements, documents and material. In all of the circumstances, As well, it could not fairly commence on 19 February 2018 if [NAME] was to have an opportunity to obtain [NAME] material with respect to the late served reports identified earlier. I concluded, however, that it was not in the interests of justice for an adjournment of the length proposed to be granted. I was not satisfied that such prejudice as [NAME] may suffer was sufficient to warrant such an extreme course. The fact that [NAME] had chosen to instruct new lawyers who needed that time to undertake a range of enquiries was not established by the evidence as being necessary or reasonable. The delay proposed was very lengthy with all of adverse consequences which such delay would bring.

24. However, I was satisfied that an adjournment to enable [NAME] to prepare for the trial was necessary because of the need to allow more time for the reading and consideration of the evidence served by the [NAME] within the last three months. Any such adjournment would also alleviate the prejudicial consequences to [NAME] of the difficulties which he had in having contact with his counsel whilst he was incarcerated at Cessnock.

25.

Accordingly, I was persuaded that it was in the interests of justice that the trial be refixed to commence on Monday 14 May 2018. Additional orders by way of case management were also necessary to ensure that the trial would be ready to proceed at that time.

26. Those are the reasons for the orders which were made on 9 February 2018, which were: :

3. In the event that the parties are able to agree upon an earlier date for the commencement of the trial, I grant leave to the parties to notify the Court of that agreed date on or before 19 February 2018.

4. Order that the [NAME] serve on [NAME] on or before 12 midday, 16 February 2018 the following items referred to in the statement of [NAME], dated 6 December 2017, which consists of 68 pages: 1. the USB identified on page 16 of her statement containing electronic versions of the worksheets; and 2. paper copies, reproduced in colour, of each of the 43 worksheets referred to in her statement.

1. Order the [NAME] is to serve all further material upon which it proposes to rely as evidence in the trial by no later than 12 midday on 16 February 2018.

2. Without leave first being obtained from the court, the [NAME] is not to serve any further material which it proposes to lead as part of its case in-chief against [NAME] after midday on 16 February 2018.

3. Adjourn the proceedings for pre-trial hearing and directions to 10am on 19 February 2018.

4. Direct that [NAME] be present on that that day by AVL.

5. Order the [NAME] and the lawyers for [NAME] to notify each other by letter or email by midday, 16 February 2018 of all matters, including applications, notices of motion, pre-trial rulings or other pre-trial requirements which each consider it necessary for the Court to determine prior to the commencement of the trial.

6. Direct that when such notification is made, a copy of that notification is to be provided forthwith to my chambers.

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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