R v Valencia (No 1)

1. [1]

   The accused, Hector Enrique Valencia, is charged that, between 7 November 2020 and 14 November 2020, he did murder Kim McRae. He has pleaded not guilty. The trial was listed to commence on 21 November 2022.

2. [2]

   The accused elected to be tried by judge alone. The Crown consented to that application. I made an order that the trial proceed as a judge alone trial on 14 October 2022. The proceedings came before me for a direction hearing on 20 September 2022 and 6 October 2022. On each occasion, the parties then appearing confirmed the trial was ready to proceed. The issue in the trial was then identified as excessive self-defence.

3. [3]

   By email, dated 16 November 2022, at 3:00pm, the Court was notified that the accused had withdrawn his instructions from both his solicitor, Mr Ekstein, and barrister, Mr Dalton SC. The matter was listed urgently before me at 2:00pm, on 17 November 2022. Mr Dalton SC and Mr Ekstein appeared on an amicus basis. Also present by way of audio-visual link was Mr Robinson from the Legal Aid Grants Division.

4. [4]

   Mr Jaramillo, solicitor, attended. On 10 November 2022, the accused contacted, or had arranged contact on his behalf with, Mr Jaramillo. On 14 November 2022, Mr Jaramillo conducted an audio-visual conference with the accused where the accused confirmed that he wanted new legal representation. At the mention, on 17 November 2022, I expressed my view that all reasonable efforts should be made to obtain alternative counsel. By Notice of Motion, filed on 18 November 2022, the accused applied to vacate the trial. On 21 November 2022, Mr Schaudin, briefed only on this application, moved on the Notice of Motion to vacate the trial.

5. [5]

   The grounds for the application are as follows:

   1. (1)

      Firstly, Mr Jaramillo has been unsuccessful in securing alternative counsel to conduct the trial. The Public Defenders' Chambers have been contacted without success. Ms Moore, Junior Solicitor at James & Jaramillo Legal Pty Ltd, has been corresponding with 19 different chambers to obtain counsel for this matter without success. The details of those inquiries are set out in Ms Moore's affidavit evidence.

   2. (2)

      Secondly, and unsurprisingly, Mr Jaramillo deposes that he does not have the capacity to digest the 4795-page brief of evidence served on him in the few short days that he has had.

   3. (3)

      Thirdly, the Defence now wants to engage Professor Duflou, Forensic Pathologist, to provide a report that may be relevant to the issue of causation. Mr Jaramillo deposes that some of the material in the brief suggests that:

The Crown’s Position

1. [6]

   The Crown neither opposes nor consents to the application. In respect of the Crown's position, I make two observations:

   1. (1)

      Firstly, the Crown also wants an opportunity to engage another Forensic Pathologist. It appears that the Pathologist initially engaged undertook the autopsy under supervision and, given the issue of causation was not previously raised, a further report will be required, this time from Dr Cala.

   2. (2)

      Secondly, the Crown has brought to my attention the case of MS v R [2017] NSWCCA 252 (“MS”), where the Court of Criminal Appeal emphasised the right of an accused to a fair trial and the disadvantages faced by an accused who is confronted with conducting his or her own defence.

Determination of the Application

1. [7]

   I have expressed some concern about delaying the trial. The accused has been in custody since February 2020. The deceased's family and the community have an interest in securing some finality to the proceedings. There is a strong public interest that a criminal trial, once fixed for hearing, upon the basis that the parties are ready to proceed, does proceed. I am also conscious that a last-minute application to vacate a trial may have a likely adverse effect on witnesses in the trial. However, I have formed the view that the trial should be vacated. In making this determination, I have had regard to the decision in MS. The Court said, at [14] and [15]:

2. [8]

   The difficulty in proceeding with the accused unrepresented is compounded by the fact that this is a judge alone trial. In the decision of MS, the Court referred to the importance of a court eliminating or reducing the disadvantages faced by an accused who is self-represented. The Court said:

3. [9]

   It would be difficult and, in my view, inappropriate for me, as the tribunal of fact, to advise the accused about issues or procedural matters in the trial. This is particularly so given that the issues in this trial may involve complex expert evidence relating to the issue of causation.

4. [10]

   Accordingly, it is with some reluctance that I grant the application and vacate the trial. I will list this trial to commence before me on 6 February 2023.