R v Warwick (No.64)

1. [1]

   Leonard John Warwick is presently standing trial on an Indictment containing 24 counts. Those counts are as follows:

2. [2]

   The three remaining counts on the Indictment are charged in the alternative to some of those described above. There is no need to further describe those alternative counts.

3. [3]

   Upon arraignment on 3 March 2017, the Accused pleaded not guilty to each of the counts on the Indictment. At the commencement of the trial, when re‑arraigned, the Not Guilty pleas were maintained.

Subject Matter of the Trial

1. [4]

   The Crown seeks to prove that, in the context of defended proceedings concerning the custody of their infant child, and entitlement to property, which were being conducted in the Parramatta Registry of the Family Court of Australia between the Accused and his then wife, Andrea Blanchard, the Accused was responsible for each of the seven events which can be described in the following way:

2. [5]

   The case for the Crown is a circumstantial one which calls in aid coincidence and tendency reasoning.

3. [6]

   A reasonable summary of the Crown’s case as it existed before the evidence in the trial commenced can be found in R v Warwick (No 2) [2017] NSWSC 1225. For the purposes of this judgment, these summaries are sufficient to understand the case which the Crown seeks to prove.

4. [7]

   The Accused denies any involvement in the crimes alleged. He says that he did not have any knowledge of, or experience in, the design and construction of improvised explosive devices. He denies the existence of any motive of the kind alleged by the Crown, and as well submits that the evidence has, and will disclose the existence of other people who may have carried out the crimes with which he is charged.

Outline of the Course of the Trial

1. [8]

   On 3 March 2017, shortly after the Accused was arraigned before me, and pleaded not guilty to each of the charges on the Indictment, the trial was fixed to commence on 19 February 2018. An estimate of six months was given. On 9 February 2018, for the reasons then given, the trial date was vacated and a new date of 14 May 2018 was fixed: see R v Warwick (No.5) [2018] NSWSC 70.

2. [9]

   On 11 May 2018, the Court made an order that the trial be conducted by a judge alone. This order was made at the request of the Accused and with the consent of the Crown: see R v Warwick (No.21) [2018] NSWSC 654.

3. [10]

   On 15 May 2018, the trial began when the Crown delivered its opening address. The taking of evidence was adjourned to 9 July 2018.

4. [11]

   Ultimately, the evidence commenced in the trial on 16 July 2018 and has continued since that time.

5. [12]

   The trial has occupied 103 hearing days during which 70 witnesses have been called by the Crown. The transcript to date occupies approximately 5,800 pages. 356 exhibits comprising documents, photographs, diagrams, maps and physical items have been tendered.

6. [13]

   Prior to the trial commencing, 32 days were occupied with the Court hearing pre‑trial applications, resulting in 22 separate judgments. Since the trial began, there have been a further 41 judgments dealing with a wide range of evidentiary and related rulings.

7. [14]

   So far as presently emerges from the material before the Court on this Notice of Motion, the Crown proposes to call a further 155 witnesses. However, only one of those witnesses, who is still to be called, is an expert witness. That expertise is in the field of handwriting and at present the Court has reserved a judgment as to whether that evidence will be permitted to be led.

Relevant Principles of Law

1. [15]

   The principles in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 address the right to relief by way of a temporary stay of a criminal trial where an indigent defendant is charged with a serious criminal offence and who, through no fault of his or her own, find themselves without adequate legal representation. Where a court is satisfied that in the absence of legal representation, the trial would be unfair, the court has jurisdiction to adjourn or stay proceedings until legal representation can be arranged.

2. [16]

   In State of NSW v Canellis [1994] HCA 51; (1994) 181 CLR 309, at 328, Mason CJ, Dawson, Toohey and McHugh JJ, said of the decision in Dietrich:

3. [17]

   In Attorney-General for NSW v Milat (1995) 37 NSWLR 370 at 373, the Court of Criminal Appeal (Gleeson CJ, Kirby P and Mahoney JA) in a joint judgment wrote:

4. [18]

   The common law recognises that an unrepresented accused may face disadvantages in the conduct of a trial: McInnes v R [1979] HCA 65; (1979) 143 CLR 575, at 590 per Murphy J. Nevertheless, in Australia, there is no right of an accused to be provided counsel at public expense: Dietrich at 297‑298 per Mason CJ and McHugh J; at 316 per Brennan J; at 330 per Deane J; at 343 per Dawson J; at 352 per Toohey J; at 364 per Gaudron J.

5. [19]

   Instead, the question of legal representation is framed according to the imperative right of an accused to have a fair trial, or perhaps more accurately expressed as “… a right not to be tried unfairly …”: Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 at 29 per Mason CJ; 56 per Deane J; 72 per Toohey J; 75 per Gaudron J; Dietrich at 299 per Mason CJ and McHugh J.

6. [20]

   Speaking generally, in order to obtain a stay of a criminal trial, the accused has the onus to prove:

   1. (1)

      that he or she is indigent;

   2. (2)

      that he or she is unable to obtain legal representation;

   3. (3)

      that to proceed without representation would render the trial of a serious criminal offence unfair; and

   4. (4)

      that he or she has not conducted themselves in a way which has unreasonably brought about any of these circumstances.

7. [21]

   These general statements require some elaboration but in the application of the authorities discussed below, it is necessary to keep in mind the following overarching contextual considerations:

8. [22]

   Ordinarily, where a person charged with an indictable offence is indigent and unrepresented, they will be denied a fair trial: Dietrich at 337 per Deane J. These assumptions arise from the adversarial nature of a criminal trial, the complicated and obscure nature of criminal laws and rules governing evidence and the forensic contest that takes place between parties: Dietrich at 370 per Gaudron J.

The Accused has been Charged with a Serious Offence

1. [23]

   The judgments in Dietrich, did not attempt to formulate any definition of what constitutes a serious offence. Nevertheless, in this matter, the Crown does not dispute that the Accused faces charges of a very serious nature. Self‑evidently, this is so.

2. [24]

   Proceedings for a non-serious offence before a judge alone are among the circumstances where a criminal trial without legal representation can be deemed “…relevantly fair…”: Dietrich at 416 per Deane J. Lack of representation, in and of itself, in such a circumstance, does not result in an unfair trial.

The Accused has Established that he or she is “Indigent”

1. [25]

   An Accused is regarded as indigent when the value of their assets and income fall “…well short…” of what is required to conduct a trial: R v Macdonald (No 4) [2016] NSWSC 486 at [95]. In order to be regarded as indigent, it should not be considered necessary for a person to charge their home to pay their legal expenses in a criminal trial: R v Joyce [2003] NSWCCA 280 at [23] per Shaw J.

2. [26]

   Further, it is expected that an Accused will demonstrate they have been refused Legal Aid and other pro bono assistance: Craig v State of SA [1995] HCA 58; (1995) 184 CLR 163.

3. [27]

   Any effort by the accused to establish that he or she is indigent will be undermined if full financial disclosure is not forthcoming: Macdonald (No.4) at [104] and [111].

The Conduct of the Accused was not Unreasonable

1. [28]

   The question of fault, a term which is used interchangeably with unreasonable conduct, arises in cases such as Philopos v R [2008] NSWCCA 66 where the accused’s past conduct with his various legal representatives compelled the court to conclude that it was unlikely that the accused could give instructions that would enable any lawyer to appear for him. In that case, an adjournment was refused.

2. [29]

   In Milat, the accused was found to be at fault where he attempted to frustrate the trial process by rejecting offers of financial assistance. The court ruled that a grant by Legal Aid NSW was sufficient to ensure the trial was not unfair. The court is not in a position to set a “…reasonable rate of remuneration…” for an accused’s legal representation: Milat at 380.

3. [30]

   Every case needs to be examined in the light of its own particular circumstances. Not every instance of misbehaviour, improvidence or other fault on the part of the accused must automatically preclude an entitlement to a stay: Craig at [21].

The Accused is Without Legal Representation

1. [31]

   There have been instances where a represented accused has made a successful Dietrich application. In R v Chaouk; Attorney-General for the State Of Victoria (Intervener) and Others [2013] VSCA 99; (2013) 40 VR 356, the provision of a solicitor to assist counsel for only two and a half days of a two and a half week trial was deemed inadequate and the accused’s application for a stay was upheld.

2. [32]

   Although the Court cannot entertain questions as to the seniority and relevant degree of experience of the lawyers representing an accused, questions of competence are not entirely irrelevant to the application of the Dietrich principle. If the only representation available to an accused is manifestly inadequate, it would be appropriate to regard the accused as being, for practical purposes, unrepresented: Milat at 375.

There are no Exceptional Circumstances which would Prevent the Making of a Stay Order

1. [33]

   There are some circumstances that may place an applicant outside of the range of considerations referred to in Dietrich including where the applicant is able to express and understand the case so as to remove the chance of a miscarriage of justice: Potier v R [2015] NSWCCA 130. For example, if the applicant is legally trained: Cummings v R (1994) 12 SR (WA) 172.

2. [34]

   As well, there can be circumstances where a Dietrich application will be unsuccessful even when legal representation has been withdrawn and an applicant is without the requisite knowledge. This can arise if the court determines that the same difficulties would emerge as with the previous advisors, because the accused is not willing or able to give different or additional instructions: Philopos v R [2008] NSWCCA 66.

3. [35]

   With these principles in mind, it is necessary to turn to the facts which I have determined to exist, and which are relevant to the issues posed on the Motion. These issues of fact relate to whether the accused is indigent, whether he is without legal representation due to any unreasonable conduct on his part, and whether the dealings of the Accused in respect to an application for legal aid, and allowing it to lapse, constitutes unreasonable conduct on the part of the Accused.

4. [36]

   Ultimately, the Court needs to consider the exercise of the discretionary power which it has to order a stay.

Suppression Order

1. [37]

   In R v Warwick (No.7) [2018] NSWSC 236, for the reasons I then gave, I made orders which suppressed the names of the family members of the Accused. To comply with those orders, and without meaning any disrespect to the members of the family of the Accused, I will refer to the Accused’s wife and daughter in this judgment by those descriptions rather than by their names.

Factual Context: Legal Representation

1. [38]

   It is convenient to commence with the facts disclosed by the evidence about the legal representation of the Accused.

2. [39]

   The Accused was arrested on 29 July 2015. He was first visited by Mr Eidan Havas, a solicitor, on 14 August 2015. This visit was arranged at the request of the Accused to his cellmate who had retained Mr Havas to appear for him. The Accused was again visited by Mr Havas on 27 August 2015. The Accused retained Mr Havas to act for him. Mr Havas initially operated under the corporate name of Havas Legal Pty Ltd t/as as Eidan Havas & Associates Lawyers and later, having entered a partnership, operated under the corporate name Havas & Dib Pty Limited. There is no need to differentiate between the particular corporate structures in which Mr Havas operated.

3. [40]

   After his second visit, according to the records of the Department of Corrective Services, Mr Havas visited the Accused on a further eight occasions during 2015. Those records do not elaborate on the length of each visit, nor the particular facilities in which these visits occurred.

4. [41]

   On 10 September 2015, on his visit to see the Accused, Mr Havas was accompanied by Mr Richard Thomas, a barrister who was subsequently retained to appear for the Accused. Mr Thomas was a barrister at the time whose principal place of practice was in Canberra and who from time to time appeared in criminal trials.

5. [42]

   In 2016, whilst the matter was in the Local Court, Mr Havas visited the Accused on five separate occasions. On three of those occasions, Mr Havas was accompanied by Mr Thomas. Mr Thomas of counsel visited without Mr Havas on one occasion. An employed associate of Mr Havas also visited on one occasion.

6. [43]

   As noted in R v Warwick (No.5) 2018 NSWSC 70 at [36]-[45], considerable legal work was carried out by Mr Thomas during 2016, including:

7. [44]

   No complaint seems to have been made by the Accused about his interactions with lawyers until 11 December 2016, when he told his daughter that he had not seen his lawyer “… in months …”.

8. [45]

   After the Accused’s committal for trial, and up to October 2017, Mr Havas visited on seven occasions. On three of those occasions he was accompanied by Mr Thomas. On one of those occasions he was also accompanied by Mr T.D.F. Hughes of counsel, whom Mr Havas retained as a second counsel for the Accused. On another occassion when Mr Havas visited the Accused without Mr Thomas, he took with him another barrister, Mr William Tuckey. Additionally, Mr Thomas visited on two separate occasions. On the same day as one of those occasions, 14 October 2017, the Accused was also visited by a Mr Ellie Sirrie, a solicitor who was then working for Mr Havas. Again, the Corrective Services records do not specify the length of any visits or whether in fact the Accused spoke with his lawyers.

9. [46]

   According to his daughter, the Accused expressed some dissatisfaction to her during 2017 about Mr Havas not visiting him or keeping him informed about his case. However, as specific dates are not noted by the daughter, it is hard to draw any conclusions about the overall relationship between Mr Havas and the Accused up until 24 November 2017, when Mr Havas sought leave to withdraw.

10. [47]

    The Accused did not seem to make any comment to his daughter which was adverse to his relationship with Mr Thomas. The satisfactory nature of the relationship in October 2017 between the Accused and Mr Thomas seems to be corroborated by the fact that the Accused confirmed to Mr Thomas that he wished him to appear at his trial fixed to commence in February 2018. A Costs Agreement signed on 30 October 2017 by the Accused supports this conclusion.

11. [48]

    As well, an exchange of text messages between Mr Thomas and the daughter, as are set out in her affidavit of 17 February 2019, does not suggest any dissatisfaction on the part of the Accused with Mr Thomas.

12. [49]

    According to the Memorandum of Fees issued by Mr Havas, the following is a short summary of what occurred on 14 October 2017, when Mr Sirrie visited the Accused:

13. [50]

    The daughter gave an account of the circumstances surrounding the termination of the retainer of Mr Havas. She said:

14. [51]

    Her evidence also records a confirmatory conversation with an employee of Mr Havas, noting that their instructions had been withdrawn. The balance of the daughter’s evidence satisfies me that the withdrawal of instructions occurred after the visit by Mr Sirrie to the Accused on 14 October 2017, and related only to Mr Havas and not to Mr Thomas.

15. [52]

    The records of the Department of Corrective Services note that Mr Thomas also visited Cessnock Correctional Centre on 14 October 2017. Although Mr Thomas billed the Accused for a prison visit on 31 October 2017, I am satisfied that Mr Thomas made an error as to the date of his visit to Cessnock and that, in fact, he was there on 30 October 2017, which is the date written on a Costs Agreement signed by the Accused. That date accords with the evidence of the daughter and a contemporaneous text message.

16. [53]

    At a pre-trial hearing which took place on 24 November 2017, both Mr Havas and Mr Thomas appeared. Mr Havas addressed the Court and informed the Court that he was seeking leave to withdraw. At a later point in the exchange the following was said to the Court from the bar table:

17. [54]

    This account given to the Court by Mr Havas seems to be the same in substance as that given by the daughter. Mr Havas was pressing for funds which the Accused was unwilling to make available because he was dissatisfied with the service and advice from Mr Havas.

18. [55]

    On no account before the Court, was any reason given to Mr Havas about the Accused’s concerns with his service (or lack thereof). The Accused told his daughter, she then terminated the retainer formally (probably after 14 October 2017) and Mr Havas accepted the termination.

19. [56]

    After the exchange recorded above in [53] concluded and Mr Havas had left the Court, the Court was informed that Mr Thomas had been briefed directly by the Accused. Mr Thomas informed the Court that he did not anticipate that the Accused would be appointing another solicitor, although he was hopeful of obtaining some assistance to support him in his appearances for Mr Warwick. Mr Thomas assured the Court that the Accused would be ready for the trial to commence in February 2018.

20. [57]

    As I have earlier noted, this termination did not apply to Mr Thomas. In a phone call which occurred shortly after the retainer of Mr Havas was terminated, Mr Thomas informed the daughter that he could act for the Accused directly without a solicitor. The retainer of Mr Thomas to act as counsel was recorded in a Costs Agreement signed 30 October 2017. That retainer was later confirmed by the daughter with Mr Thomas, at her father's direction. That direction included transferring an agreed sum of money for Mr Thomas’ brief fee for the entirety of the trial.

21. [58]

    To ensure readiness for trial, the proceedings were fixed for a further pre-trial hearing on 2 February 2018. According to the records of the Department of Corrective Services, Mr Alan Conolly and his partner, Ms Elizabeth Ramsay, who constituted the firm AR Conolly & Co, together with counsel for the Accused, Mr Thomas, visited the Accused on 30 January 2018. It seems to be at about that time that the Accused appointed Mr Conolly and his firm to be his lawyers. Mr Thomas continued to be retained.

22. [59]

    There is no evidence before the Court on this Motion explaining in any detail how Mr Conolly was retained, the initial terms of that retainer, or why Mr Conolly was chosen. However, it must have been well known to the Accused, his daughter and, I infer, Mr Conolly and Ms Ramsay, what the extent of the assets of the Accused were which could be made available for legal costs. On the evidence, after the payment of Mr Thomas’ retainer of $80,000 and the costs of the committal, the Accused had an amount which did not exceed $850,000 on the assumption that his Casula property sold for $800,000.

23. [60]

    Mr Conolly and Ms Ramsay continued to act for the Accused from February 2018 up to 28 January 2019. With the exception of a number of specific occasions, which can be presently put to one side, they have appeared in the role of both solicitor and advocate for Accused from time to time. Mr Thomas appeared in Court for the Accused during the hearing of a release application under the Bail Act 2013 on 7 March 2018, 16 March 2018 and 20 March 2018. Judgment was on that application was delivered on 23 March 2017: R v Warwick (No.8) [2018] NSWSC 354.

24. [61]

    As that judgment records in [3], the original trial date of 19 February 2018 had been vacated and the Court had, on 9 February 2018, fixed a new trial date of 14 May 2018.

25. [62]

    Shortly after the time that R v Warwick (No.8) was delivered, the Court was informed that Mr Thomas was no longer retained as counsel for the Accused. There is no evidence as to the circumstances of the termination of the retainer. The evidence does not detail who undertook the termination or why it was thought necessary. It was within the power of the Accused to adduce evidence as to all that occurred. The fact that there is no evidence suggests that any such evidence would not have assisted his case on the Motion. Particularly is this so in circumstances where other evidence suggests that Mr Thomas was well informed about the trial and the issues and had a strategy for the defence of the Accused.

26. [63]

    The daughter of the Accused records a conversation with the Accused which is said to have taken place after the committal. The date or time of the conversation is not otherwise identified. In the conversation, the Accused is said to have expressed his feeling that he was unhappy with how Mr Thomas ran the committal, including that it took only two days. Having regard to the subject matter of the discussion, and all that occurred between December 2016 and 30 October 2017 when the costs agreement with Mr Thomas was signed, including the pre-trial arguments in this Court, I am satisfied that this conversation occurred prior to the arraignment of the Accused in March 2017, and that the Accused’s concern about the way in which the committal was conducted did not impact at all on his entry into a retainer with Mr Thomas. It follows that this conversation had nothing to do with the termination of Mr Thomas’ retainer.

27. [64]

    The Accused’s daughter also gave evidence of a remark made to her by Mr Conolly, seemingly in late March 2018, to the effect that Mr Thomas had “without warning” sent all of his boxes of files back to AR Conolly & Co. This tends to suggest that Mr Thomas terminated the retainer. In the absence of evidence from either Mr Thomas or Mr Conolly about these events, I am unable to place any weight on this remark. I am not prepared to find that Mr Thomas terminated the retainer.

28. [65]

    However, without more, I am not able to conclude, despite inadequate material coming from the Accused, that the termination of the retainer of Mr Thomas was unreasonable conduct by, or at the direction of, the Accused. Even if it was unreasonable, the passage of time since then and the events which have occurred during the trial, mean that it has no real significance to the determination which the Court is now obliged to make.

29. [66]

    During the course of April and May 2018, the daughter was informed by either or both Mr Conolly and Ms Ramsay that they had made attempts to identify a barrister who would be available to appear for the Accused. No evidence of the details of the attempts at that time was provided to the Court.

30. [67]

    According to the evidence of the daughter, the Accused entered into a Costs Disclosure and Costs Agreement with AR Conolly & Co on 11 May 2018. This was the last business day before the trial was scheduled to begin. There is no evidence of any earlier costs agreement with AR Conolly & Co.

31. [68]

    The Costs Agreement entered into with Mr Thomas provided for an hourly rate of $400, but he had agreed on a fixed rate for the entirety of the trial on and from 31 October 2017 of $80,000. By contrast, the hourly rate which would be charged in accordance with the Costs Agreement entered into by the Accused with AR Conolly & Co was as follows:

32. [69]

    This agreement noted that it was separate from the agreement which the Accused had entered into with Mr Richard Thomas. It can be readily observed that there is a significant difference in the hourly rate to be charged by Mr Conolly ($770) and that of Mr Thomas, an experienced trial barrister ($400), which I would expect was a matter carefully explained to the Accused by Ms Ramsay. However, there are many reasons why a client may wish to retain a particular lawyer, or law firm, in addition to the issue of the rates being charged for the provision of legal services. The evidence does not enable any firm conclusions to be drawn about the reasons of the Accused for retaining Mr Conolly and his firm.

33. [70]

    There is no positive evidence that the Accused sought or obtained any independent legal advice before entering into this Costs Agreement. The Costs Agreement was signed by the Accused and by Ms Ramsay for AR Conolly & Co. The records of the Department of Corrective Services show that on 11 May 2018, Ms Ramsay visited the Accused at Silverwater. Those records do not disclose any legal visit by anybody other than Mr Conolly, Ms Ramsay or Mr Thomas during the whole of 2018. The daughter, who deposed to the fact that she did a significant amount of work assisting her father with the arrangements in preparation for the trial, does not say that she was aware of any other lawyer who visited the Accused to give him advice about this agreement. She did not herself seek any legal advice about the Agreement. I conclude that prior to entering into the Costs Agreement with AR Conolly & Co, the Accused did not receive the benefit of any independent legal advice.

34. [71]

    Whatever be the reason for, or the wisdom of, the Accused entering into the Costs Agreement with AR Conolly & Co, particularly when viewed from the perspective of the facts presently available, it cannot be said that it was unreasonable of him in May 2018 to have decided that he should continue to retain AR Conolly & Co to act for him. After all, by that stage, the commencement of the trial was only a few days away, and considerable pre‑trial work had been undertaken by AR Conolly & Co.

35. [72]

    According to the evidence, for the period 21 February 2018 to 31 July 2018, AR Conolly & Co raised tax invoices addressed to the Accused which totalled $2,328,091.16. It appears that those invoices were not generated until after the Costs Agreement was signed on 11 May 2018. In respect of those invoices, the Accused has paid to AR Conolly & Co a total of $751,914.21. A total of $1,576,176.95 remains outstanding in respect of these invoices for fees.

36. [73]

    An application for legal aid was made in September 2018. It will be discussed in detail later in this judgment. An unsuccessful judicial review application was the subject of a judgment delivered by Fullerton J on 12 December 2018: Warwick v Legal Commission of NSW [2018] NSWSC 1920.

37. [74]

    On 11 December 2018, Mr Conolly filed a Notice of Motion in Court in which he sought a number of orders, one of which was that he be granted leave to withdraw from his representation of the Accused in the trial. He did not seek to proceed with that order at that time. The evidence now before the Court includes a series of emails sent in identical terms by Mr Conolly on 10 December 2018 to the clerks of three sets of barristers’ chambers in Sydney. That email sought the availability of any counsel to take over the defence of the Accused without fee, on a pro bono basis, for the whole or part of the balance of the trial which had an estimate of six to nine months. Unsurprisingly, no positive reply was received.

38. [75]

    It also appears that a sum of $8,231.30 remains outstanding for disbursements incurred by AR Conolly & Co, which have been billed but remain unpaid. The evidence also suggests that further disbursements of approximately $6,000 have been incurred by AR Conolly & Co for taxi fares which have not been billed.

39. [76]

    No invoices have been delivered for the period from August 2018 through to and including December 2018. However, according to information given to the daughter by Igard Nikovic, the Finance Manager at AR Conolly & Co, the work in progress that has been recorded on that company's billing system for that period by at least 14 employees, and in one month 16 employees, totals $2,339,374.50.

40. [77]

    As well, the Accused has paid monies directly to experts for their advice and assistance in the sum of $40,000 and, although the amounts are not given in evidence, there are said to be further expert fees outstanding. The identity of those experts has not been disclosed to the court.

41. [78]

    A consideration of the invoices on a month-by-month basis indicates that between the time that AR Conolly & Co commenced acting for the Accused up until 30 April 2018, the sum for fees ultimately invoiced to the Accused was $976,663.75. Three matters may be noted here: first, this sum exceeded (by at least $100,000) the entirety of the funds which the Accused had available to be spent on legal fees; secondly, the trial of the Accused was yet to begin; and thirdly, there is no evidence that the Accused had entered into a costs agreement with Mr Conolly or his firm before 11 May 2018. Because not all of these invoices had been sent to the Accused by that time, the Accused may have been unaware of the amount of accumulated legal fees and that by the time he came to sign the Costs Agreement, the monies which he had earmarked as available for legal costs had been completely exhausted. However, Mr Conolly and Ms Ramsay must have been well aware of that financial position.

42. [79]

    It is possible to gain a broad understanding of the fees and obligations incurred by the Accused from the table below. It should be noted that the figures make an estimate of the split between pre-trial and trial work for the month of July 2018. The split is made by applying a proportion of the days of the month prior to the evidence commencing in the trial and those after that date:

43. [80]

    It would be easy to react to this extremely large sum for costs of a criminal proceeding (including as part of an, as yet, unfinished trial) with an expression of astonishment or even a much stronger epithet. But it is necessary to keep in mind that on the hearing of a motion such as this, the Court is not engaged in any assessment of solicitor and client legal costs, much less the setting of a reasonable rate of remuneration for the lawyers representing the Accused. The purpose of recording and setting out these costs is as part of the factual context for the Accused being unrepresented, and whether that is due to any fault or unreasonable conduct on his part.

44. [81]

    However, these amounts for legal costs are the occasion to draw attention to, and re-emphasise, the remarks of Smart J in Regina v Kay (1998) 100 A Crim R 367, where with the agreement of Gleeson CJ and Mason P, he said:

45. [82]

    Although the procedure for committal hearings has significantly changed since Kay was decided, the warning of Smart J is equally applicable to pre‑trial proceedings of any kind, whether conducted in the Local Court or else in the Supreme Court, after arraignment. Whether any attention was given to the “reasonable management of [the Accused’s] finances” in this case is not addressed in the evidence.

46. [83]

    On 29 January 2019, the first day of the resumed trial, Mr Conolly filed a Notice of Motion in which he sought an order for leave to withdraw from the proceedings. This order was not ultimately pressed. In the course of the hearing of that application, as is recorded in R v Warwick (No.63) [2019] NSWSC 41 at [3]-[5], Mr Conolly informed the Court that on behalf of the firm, Ms Ramsay visited the Accused at Silverwater on 28 January 2019, and informed him that AR Conolly & Co were terminating their retainer due to outstanding invoices.

47. [84]

    To complete the narrative with respect to legal representation, it is appropriate to add that AR Conolly & Co have remained instructed on a limited basis in respect of two matters:

48. [85]

    Some conclusions can be drawn from this narrative:

49. [86]

    The evidence does not establish, and I do not conclude that any conduct of the Accused has been unreasonable, nor that he is in any way at fault for the fact that he is now unrepresented. The Accused lost confidence with Mr Havas, but replaced him, not promptly, but within a not unreasonable time with AR Conolly & Co. Because Mr Thomas continued to be briefed until towards the end of March 2018, it may have been possible at that stage to obtain the assistance of another barrister without any significant disruption to preparations. However, as long as Mr Conolly and his firm continued to be retained, the funds set aside by the Accused were destined to run out before the trial was concluded.

Factual Context: Real Property Assets

1. [87]

   An important part of the factual issues relevant to this Motion is the legal and beneficial ownership of two properties of the Accused. This is important to the analysis of whether the Accused is indigent, about which there is a dispute between the Accused and the Crown.

2. [88]

   At the time of his arrest, the Accused was the sole registered proprietor of two properties, one at Casula which he had owned since at least the 1980s and the second at Douglas Park.

3. [89]

   The property at Casula was rented out and the Accused received rental income from it. He, together with his wife, and the children of their marriage, lived at Douglas Park. By the time of the hearing of this Motion, only some of the children remained living at Douglas Park.

4. [90]

   According to the Accused’s wife, she met the Accused in the Philippines in 1988 and they married there in January 1992.

5. [91]

   The wife permanently relocated to Australia with her two children in mid-1992. Initially the Accused, his wife and her first two children lived in the Casula property.

6. [92]

   Although the evidence is not precise, it seems that the Douglas Park property was purchased in 1995, and a house was then built upon it in about 1997. The house at Douglas Park seems to have been paid for from the proceeds of sale of the house of the Accused's father or else from the Accused’s inheritance from his father’s estate.

7. [93]

   The wife says, at a time after the Accused was arrested, that she had a discussion with the Accused about all of their assets, including the two properties. She says that the Accused told her that he wanted the Douglas Park house where she and the whole family had been living for about 17 years, to be kept for her and the children. The wife says that the Accused also told her that he was planning to sell the Casula house to pay for his legal fees, to defend the charges which had been brought against him.

8. [94]

   After the Accused was committed for trial at the end of 2016 and before his arraignment in the Supreme Court in the early part of 2017, the wife, after discussions with the Accused and advice from Mr Havas, consulted with a solicitor, Ms Searle, in relation to a proposed property rearrangement which would accord with what the Accused discussed with her. Ms Searle prepared a document entitled “Part VIIIA Financial Agreement under s 90C and s 90E of the Family Law Act 1975 (Cth)” (“the draft BFA”). The Accused appears to have sought, and perhaps received, advice on this topic from Mr Havas, who was then acting for him.

9. [95]

   The Introduction to the draft BFA included the following statements:

10. [96]

    The effect of the operative clauses of the draft BFA was that the wife would take the Douglas Park property as her own without limitation, and that the Accused would take the Casula property as his own without limitation. Neither of the properties were at that time the subject of any mortgage. As well, other arrangements were proposed with respect to cash and shares. The draft BFA recorded that the Accused agreed to pay maintenance to his wife in the sum of $5,000 per week (this was clearly a mistake and should have read “per month”). When the draft BFA was sent to the daughter by Ms Searle, she discussed it with the wife who refused to accept the statement contained in the draft BFA which said that there had been a breakdown of the marriage, or that there had been any separation or divorce. The proposed draft BFA was not signed by the wife or the Accused, and no further arrangements were made at that time with respect to the transfer of the Douglas Park property.

11. [97]

    A financial agreement made under s 90C can be made during a subsisting marriage, but any property re-arrangement can only take effect in the event of the breakdown of the marriage. It is not clear why the draft BFA was expressed as coming under this provision. It was open to the lawyers, Ms Searle and Mr Havas, to advise their respective clients, the Accused and his wife, about the availability of s 79 of the Family Law Act as a means by which their property interests could be rearranged. This pathway requires proceedings to be commenced in the Family Court, and for that Court to be persuaded that it is just and equitable in all of the circumstances to make an order for the re-arrangement of property interests. The evidence does not suggest that any advice about this pathway was provided to the Accused or to his wife. The absence of that advice explains why no further proceedings were taken in the Family Court to formalise their arrangement.

The Selling of the Casula Property

1. [98]

   Clearly, during the balance of 2017, there had been discussions between the Accused and, at least Mr Havas, about the selling of the Casula property. These discussions seem to have come to a head no later than 14 October 2017 in the conference between the Accused and Mr Sirrie, to which I have earlier referred at [49].

2. [99]

   There were clearly further discussions between the Accused and either Mr Conolly or Ms Ramsay about selling the Casula property during the first half of 2018, although there is no evidence about the detail of those conversations or their timing.

3. [100]

   On 20 April 2018, the Accused entered into a contract for the sale of the Casula property for a total price of $810,000. The sale transaction was settled on 1 June 2018.

4. [101]

   The disposition of the $810,000 that constituted the sale price was eventually comprehensively addressed in the evidence. After the usual agent’s fees and commissions and typical conveyancing allowances, the sale of the Casula property resulted in the net sum of $792,491.75 being available to the Accused from the purchase of the Casula property.

5. [102]

   According to the daughter, an amount of $350,000 from the proceeds of sale “had to be repaid for short term loan which had been taken out against the property …" and that a total of $378,607.55 was transferred to the Trust Account of AR Conolly & Co. The total of these two amounts, together with the balance of the deposit remitted by the agent, account for the entirety of the proceeds of sale.

6. [103]

   In summary, the daughter says that after stamp duty, agent’s fees and the short term loan were repaid, the balance of monies were put aside solely for the legal costs of the trial. The trust account records of AR Conolly & Co corroborate that account.

7. [104]

   A short term loan of $350,000 was obtained by a company, Araz House Pty Ltd. Nothing is disclosed in the evidence about this company except that its address is the Douglas Park property of the Accused. The Accused was described on the loan documents as the Mortgagor. The net proceeds of the loan were deposited into the trust account of AR Conolly & Co on 28 May 2018. At the time of settlement of the sale of the Casula property, this loan was repaid from the proceedings of the house sale. The evidence establishes, and there is no reason to doubt, that the Casula property has been completely disposed of and is no longer an asset of the Accused. As well, the whole of the available proceeds of sale from that have been spent on legal fees. None of the proceeds of sale have been retained by the Accused.

The Transfer of the Douglas Park Property

1. [105]

   Shortly after the resolution of the sale of the Casula property, it seems that attention turned to the Douglas Park Property.

2. [106]

   At all times up until at least 1 September 2018, the Accused was the only proprietor registered on the title of the Douglas Park property.

3. [107]

   The Douglas Park property was transferred into the name of the Accused by the original vendors by a Memorandum of Transfer dated 27 October 1995. The consideration was $147,000. No mortgage was ever registered on the title.

4. [108]

   On 6 June 2018, advice was provided to the Accused and his wife by a solicitor at AR Conolly & Co that the transfer of the Douglas Park property from the Accused to the wife should be effected by the execution of two separate Transfers, each conveying a 50% share of the property. Apparently, this was due to the perception that by approaching the transfer of title in this way, the impact of stamp duty might be minimised.

5. [109]

   On 7 June 2018, each of the Accused and the wife executed, in the presence of Ms Ramsay, two Transfers which were dated that day. Each Transfer purported to transfer from the Accused to his wife 50% of the estate in fee simple of the Douglas Park property.

6. [110]

   To enable registration of one or both of the Transfers, it was necessary for the original of the Certificate of Title to be produced to the Land Titles Office at the time of lodging the Transfer.

7. [111]

   The Certificate of Title was not provided to AR Conolly & Co by the daughter until 4 September 2018. The daughter records in her affidavit that at some time after 4 September 2018, she was advised by a solicitor from AR Conolly & Co that the Transfers which had been executed in June could not be lodged for registration because they were no longer within the three month time limit acceptable to the Land Titles Office. She was advised that new Transfers would need to be signed. It is not clear why the first of the two signed Transfers dated 7 June 2018 was not lodged with the Land Titles Office on either 5 or 6 September 2018, which would have been within time. The time constraint seems to have been overlooked.

8. [112]

   On 7 September 2018, two new Transfers were drawn up, with each again providing for a transfer of 50% of the Douglas Park property. On 7 September 2018, each of these Transfers was signed by the Accused and his wife in the presence of Ms Ramsay. They were returned in an undated form to Mr Matthews, a solicitor at AR Conolly & Co, whose task it was to address this conveyancing issue.

9. [113]

   On 12 September 2018, one of the two Transfers which had been dated that day, and which had been assessed as being exempt from stamp duty, was lodged for registration. No consideration was recorded as being paid for this transfer.

10. [114]

    Although AR Conolly & Co is in possession of the further executed, but undated, Transfer of 50% of the Douglas Park property, it has not been lodged for registration. The evidence does not reveal any reason why this second Transfer has not been lodged as at the hearing of this Motion. As the Register presently stands, the Accused and his wife are both noted as being registered proprietors as tenants-in-common. That is to say, on the title, the Accused is the legal proprietor of one half of the Douglas Park property and the wife is also the legal proprietor of one half of the Douglas Park property as tenants-in-common.

11. [115]

    For reasons which are unexplained in the evidence, the Register on and from about 24 September 2018 until 6 February 2019, showed the wife as the sole registered proprietor. This was obviously an error which was corrected by a departmental dealing lodged on 6 February 2019. The Certificate of Title now records both the Accused and his wife as being owners of equal shares in the property as tenants-in-common.

Arrangements about the Douglas Park Property

1. [116]

   It is the case for the Accused that his wife is the sole legal and beneficial owner of the Douglas Park property.

2. [117]

   Initially, the Accused submitted that his wife was the sole registered proprietor. This is clearly not correct. The submissions of the Accused were amended in reply to rely upon the entitlement of his wife as the beneficial owner of the 50% share of the Douglas Park property, which is held in the name of the Accused.

3. [118]

   Alternatively, the Accused submitted that his wife was the owner in equity of the entire estate in the Douglas Park property; that she would have been entitled to become the sole registered legal owner of the Douglas Park property had she made an application under s 79 of the Family Law Act; and that it was “otherwise reasonable” for the Accused to have transferred the entire estate in the Douglas Park property to his wife.

4. [119]

   The proposition that the wife was the owner in equity of the entire estate is said to rest upon an arrangement made between the Accused and his wife, the terms and effect of which are set out in her affidavit in this way:

5. [120]

   The wife added the following:

6. [121]

   The wife goes on in her affidavit to note that she consulted with a solicitor, Mr Stephen Blanks, who set out her position in a letter of 23 January 2019. That letter asserted that the wife was the registered proprietor of the whole of the property. It went on to say:

7. [122]

   The account given by the wife was not challenged by the Crown. The wife was not required for cross-examination. There is considerable evidence on the Motion which provides corroboration for the account of the wife as to the arrangement which she reached with the Accused.

8. [123]

   The daughter’s unchallenged evidence corroborates the arrangement. The daughter says that she had a conversation with the Accused at a time after he was arrested, when he said to her the following:

9. [124]

   As well, the daughter records that her father said to her and her mother, on a number of occasions, that he had spoken to Mr Thomas about the house and “… about splitting the property so I can pay for costs …”.

10. [125]

    The draft BFA also corroborates this arrangement. Leaving aside other assets, the draft BFA reflected the proposal from the Accused that he would retain the Casula property absolutely and transfer the Douglas Park property to his wife. Emails in April and May 2017 between the daughter and Searle & Associates, Lawyers, also provides significant corroboration of that original arrangement.

11. [126]

    By way of example, on 20 April 2017, the daughter sent an email to a solicitor at Searle & Associates:

12. [127]

    A further email of 18 May 2017 from the daughter to Ms Searle provided an update on the draft BFA. It suggested the addition of various matters of detail. It also included a request to remove the reference to the weekly spousal maintenance of $5,000. The daughter at that time promised to provide Ms Searle with further information relating to matters of detail.

13. [128]

    This exchange of emails does not suggest that there has been any change in the minds of either the Accused or his wife with respect to the transfer of the Douglas Park property. On the contrary, it appears efforts were being made to put the arrangement into effect, and at a time before the Accused was going to be called upon to pay significant amounts for the legal costs of the trial.

14. [129]

    The evidence is silent as to the timing of any final decision not to proceed with the draft BFA. In light of the email exchange to which reference has been made at [127]-[128], the evidence of the daughter contained in her affidavit of 8 February 2018, suggesting that by 23 February 2017 a decision had been made not to proceed with the draft BFA, seems likely to be erroneous. Particularly is this so having regard to the daughter’s later evidence that Mr Thomas sent her a text message on 20 October 2017, which included the following:

15. [130]

    After that text message was received, the daughter received an email from Mr Havas’ firm about outstanding fees. In response, she noted that the outstanding fees had been paid and made a request to Mr Havas’ firm in these terms:

16. [131]

    The documents which were to give effect to the sale of the Casula property do not seem to have been signed at any time in the presence of Mr Thomas. Rather, they seem to have been attended to during 2018, after AR Conolly & Co commenced to act for the Accused.

17. [132]

    The Accused submitted that there are two bases upon which the Court could determine that having regard to the arrangement, and the facts and circumstances which have occurred, the wife has an equitable interest as to the entirety of the 50% share of the Douglas Park property held in the name of the Accused, which could be enforced against him.

18. [133]

    The first is that a court of equity would find that a common intention constructive trust exists because the Accused and his wife agreed, and held a common intention, that the wife would be entitled to the 50% interest in the Douglas Park property held in the name of the Accused, and that the wife had acted to her detriment on the basis of that agreement or common intention: Shepherd v Doolan [2005] NSWSC 42 at [31].

19. [134]

    As Gleeson CJ said in Green v Green (1989) 17 NSWLR 343 at 353:

20. [135]

    The Chief Justice also cited with approval, the remarks of the Privy Council in Maharaj v Jai Chand [1986] AC 898 at 907 where their Lordships said:

21. [136]

    As Gleeson CJ noted at 354, the judgment of Vice Chancellor Browne‑Wilkinson in Grant v Edwards [1986] Ch 638 identified that when a party sought to establish a constructive trust based on actual intention, two matters had to be demonstrated. First that there was a common intention that the claimant would have a beneficial interest and, secondly, that the claimant acted to his or her detriment on the basis of that common intention.

22. [137]

    The evidence establishes to my satisfaction that at all times after the Douglas Park property was acquired, it was intended to be, and was used as, the home in which the wife and the children of the marriage lived together with the Accused. The Casula property was regarded after that point in time as the investment property, providing rental income for the benefit of the Accused and his family.

23. [138]

    After the Accused was arrested and it became apparent that he would need to expend funds on legal fees, the discussion which he had with his wife demonstrated a clear common intention that she should have the benefit of the whole of the Douglas Park property, and that he would have the benefit of the whole of the interest in the Casula property.

24. [139]

    The corroborative actions to which I have referred above confirm this arrangement and the expressed common intention.

25. [140]

    The various steps taken with respect to the sale of the Casula property, the guaranteeing of the whole of the net proceeds of sale for legal costs, and the reliance by the wife upon the Accused’s solicitors to effect the transfer of the legal title to the whole of the Douglas Park property into her name, all of which occurred without any active opposition on the part of the wife, constitute actions to her detriment which are available to her in a court of equity to establish an enforceable claim to her beneficial interest in the property.

26. [141]

    The wife’s forbearance to instruct her own lawyers to give effect to the transfer and to ensure that both transfers were lodged, and her failure to take any steps to interfere with the sale of the Casula property and allow the monies to be spent on legal fees, and failure to take any steps to give effect to the engaging of the Family Law jurisdiction for a property arrangement pursuant to s 79 of the Family Law Act, all combine to indicate that a court of equity would hold that the Accused is the constructive trustee of the 50% share of the Douglas Park property for the entire benefit of his wife.

27. [142]

    In light of this conclusion, there is no need to consider the second basis upon which the Accused submitted that his wife would probably be regarded as the beneficial owner of his 50% of the Douglas Park property, namely the doctrine of equitable estoppel.

28. [143]

    In summary, although the legal title to the Douglas Park property has not been completely transferred by the Accused to his wife, I am satisfied that it is not appropriate to regard the Accused’s 50% legal title to the property as anything other than an interest he holds on trust for his wife.

29. [144]

    Put differently, I am satisfied that the Accused’s wife is the owner of the entirety of the Douglas Park property, regardless of the state of the legal title. It is not an asset which is available to the Accused to spend on his legal fees.

30. [145]

    It follows that the Accused is a man who is now wholly without assets and is indigent within the common meaning of that term.

Legal Representation: Application for Legal Aid

1. [146]

   On 26 September 2018, Ms Ramsay submitted an application for legal aid through the online portal of Legal Aid NSW. It was in the standard form required.

2. [147]

   In that application, the Accused disclosed that he owned no assets with the exception of a sum of cash of about $30,000. He disclosed that in June 2018, he had received the proceeds of sale from the Casula property. He also disclosed that he had paid legal fees of $793,442.89

3. [148]

   The application for legal aid was accompanied by a long and detailed letter dated 25 September 2018. That letter described the nature of the trial confronting the Accused, his personal circumstances, legal resources and current funding. It concluded with this statement:

4. [149]

   If this was intended to refer to the legal ownership, it was erroneous. However, as a general statement of the belief of the Accused about the ownership of the house, it was correct.

5. [150]

   In a letter dated 2 October 2018, Legal Aid NSW sought further information regarding the wife of the Accused as a “financially assisted person” under the legal aid guidelines. As part of that information the letter requested:

6. [151]

   That letter was responded to on 11 October 2018. Included with that letter of response was a separate sheet of paper containing an Asset and Liability Statement of the Accused and his wife as at 11 October 2018.

7. [152]

   The Statement included a table setting out the individual items of assets and liabilities. The Douglas Park property was listed in the table as an asset with a value of $1M. Also listed in the table, on the liability side, was a significant sum of outstanding legal fees and estimates of legal fees which were accumulated but unbilled. The thrust of this asset and liability statement was that the assets and liabilities of the Accused and the wife were such that the liabilities exceeded the assets by about 2½ times.

8. [153]

   The table did not assert that the Douglas Park home belonged only to the wife or else was jointly owned by the Accused and the wife. The document seems to have been prepared by Mr Matthews, an employed solicitor, who believed that the wife was the owner of the Douglas Park property. That he held such a belief was not challenged by the Crown. There was no evidence that either the Accused or his wife knew of the contents of the letter before it was sent.

9. [154]

   On 16 October 2018, by letter of that date, Legal Aid NSW informed Ms Ramsay that the application for legal aid had been granted. The grant of legal aid was effective from 26 September 2018 (being the day upon which the application was made). It noted that professional fees of the lawyers and disbursements would be paid in accordance with the Legal Aid NSW Fee Scale. The letter went on to say the following:

10. [155]

    The letter went on to inform Ms Ramsay that Legal Aid NSW would allow Mr Conolly to claim as if he were a junior counsel and Ms Ramsay to claim as an instructing solicitor. The grant of legal aid permitted 30 days of court attendance and two client conferences per week. The grant noted that if further court days were required, it would be necessary to lodge a request for extension. The balance of the letter seem to be largely in a standard form, the contents of which were not necessarily applicable or appropriate for the grant of legal aid which was made to the Accused in the circumstances of this case.

11. [156]

    In relation to the charge over his property that the Accused was expected to provide as described above at [154], no Charge Agreement or information sheet was sent by Legal Aid NSW to the Accused or to Ms Ramsay as his lawyer.

12. [157]

    On 9 November 2018, by letter and a standard form, Mr Conolly lodged an appeal on behalf the Accused. In addition to the appeal, a request was made that there be a redetermination of some of the conditions of the grant of legal aid. The letter drew attention to the fact that no Charge Agreement had in fact been received by the Accused and, accordingly, it had not been returned by the due date. The letter summarised the conditions of the grant, including putting the charge condition in this way:

13. [158]

    The letter included this statement:

14. [159]

    The letter sought amendments which would have had the effect that Legal Aid NSW would pay for disbursements incurred before 26 September 2018.In particular, the payment of two invoices for experts; the payment of Mr Conolly and Ms Ramsay at a rate above legal aid rates; and a waiver of the condition with respect to the charge over the Douglas Park property.

15. [160]

    In respect of the waiver of the charge, the letter reaffirmed that the property at Douglas Park was owned by the wife and was not owned by the Accused. It went on to say:

16. [161]

    The letter also sought an extension of the 30 day grant of aid to 100 days, and the provision of additional preparation time including conduct of conferences.

17. [162]

    On 15 November 2018, the Legal Aid Review Committee of Legal Aid NSW responded to the letter from Mr Conolly, informing him that there was no right of appeal. This was only partially correct, as the events described below show.

18. [163]

    After proceedings were commenced by the Accused against Legal Aid NSW, the Legal Aid Review Committee met and considered the appeal lodged on behalf the Accused. By letter dated 4 December 2018, the Legal Aid Review Committee informed the Accused that:

19. [164]

    The letter noted that some other matters addressed in the 9 November 2018 letter of AR Conolly & Co were not properly appellable.

20. [165]

    Accompanying that letter of 4 December 2018 was a formal document which constituted the grant of legal aid. The grant of legal aid required that the signed Charge Agreement be returned by 3 January 2019, but the Charge Agreement and accompanying information sheet, was not forwarded with that letter.

21. [166]

    It is fair to say that the bulk of this document was in terms very similar to that previously sent. Many of the terms were simply not referrable to the application and the grant of legal aid which had been made and were expressed in ways which were manifestly confusing.

22. [167]

    The letter of 4 December 2018, in the same terms as earlier put, required the Accused to provide a charge for the costs of the matter. In fact, that was not what Legal Aid NSW actually required. What they required was that the wife provide the charge, which intent seems to be the one acted upon by the Accused and his lawyer.

23. [168]

    Proceedings were commenced by the Accused against Legal Aid NSW seeking judicial review of the grant of legal aid notified on 4 December 2018.

24. [169]

    In particular, the Accused challenged the legal validity of the condition which required the wife to provide a charge over her “legal and equitable interest” in the Douglas Park property. Other aspects of the grant of legal aid were not the subject of this judicial review application. The application was heard promptly on 10 December 2018 and on 12 December 2018. For the reasons which she then delivered, Fullerton J dismissed the Accused's Summons see: Warwick v Legal Aid Commission of NSW [2018] NSWC 1920.

25. [170]

    In the course of submissions from the bar table, Mr Conolly, on behalf the Accused, informed Fullerton J that the Accused had no legal interest in the property at Douglas Park. When her Honour asked Mr Conolly whether the basis upon which she should consider the submissions about the lawfulness of the charge condition was that the wife was the only registered proprietor of the property at Douglas Park, Mr Conolly agreed, although this did not reflect the fact and was erroneous.

26. [171]

    The charge was not provided by the wife within the time limited either by the Legal Aid Review Committee letter or else the later date specified in the grant of legal aid. Accordingly, I conclude that the grant of legal aid has terminated, and is no longer available to the Accused.

27. [172]

    The grant of legal aid was applied for on the basis that the wife was the legal and beneficial owner of the entirety of the Douglas Park property. It was incorrect to describe her as the legal owner of the entirety of the property, but it was not incorrect to describe her as the beneficial owner of the entirety of the property. It may be surprising that the application made by Mr Conolly and Ms Ramsay on behalf of the Accused was permitted to be considered by Legal Aid NSW on the erroneous basis that the wife was the legal and beneficial owner of the entire property. However, having regard to my conclusion about the beneficial ownership, I am not persuaded that the application by the Accused for a grant of legal aid has been made on any basis which is substantively misleading, nor that the Accused is in any way complicit in the erroneous way in which the application was put.

28. [173]

    The Accused acted reasonably in seeking and obtaining a grant of legal aid. The fact that he was not able to compel his wife to give a charge in favour of Legal Aid NSW over the Douglas Park property cannot be regarded as unreasonable conduct on his part.

29. [174]

    The wife of the Accused is not and was not compellable by her husband to give the charge which Legal Aid NSW sought. The independent legal advice which the Accused’s wife sought and obtained was no doubt influential in her determination not to give the charge. In those circumstances, it would be a bizarre conclusion to describe the Accused as having acted unreasonably, for his failure to procure the charge required by Legal Aid NSW.

30. [175]

    The end point of this consideration is that the Accused cannot be held to be at fault, or to have acted unreasonably. The grant of legal aid which was made has expired without the condition required by Legal Aid NSW being met.

Submissions of the Accused

1. [176]

   The Accused submitted that in order to succeed on the application, he needed to show on the balance of probabilities that:

2. [177]

   The Accused submitted that the Court would find that he is indigent because he lacks the means to engage appropriate legal representation to conduct his defence. He submitted that it was clear on the evidence that he did not have “… anything close to the resources…” necessary to retain appropriate legal representation having regard to the size and complexity of the proceedings.

3. [178]

   He further submitted that it was self-evident that the charges with which he was confronted on the Indictment are serious offences.

4. [179]

   The Accused submitted that he was not legally represented because:

5. [180]

   He further submitted that although he had used his best efforts to obtain legal aid, the grant of legal aid which had been made had expired through no fault of his own. That is to say, he submitted that he was unable to comply with a condition which was imposed by Legal Aid NSW and that non-compliance could not be regarded as unreasonable on his part.

6. [181]

   The Accused further submitted that in no sense of the term as it had been used, could he be regarded as being at fault or having conducted himself unreasonably so as to preclude the Court exercising its discretion to grant a stay of the proceedings. In particular, the Accused drew attention to that part of the judgment of the High Court in Craig v State of South Australia at [21] where it was said that the reference in Dietrich to the accused being unable to obtain legal representation “… through no fault on his or her part” was:

7. [182]

   The Accused submitted that it could not be said that by any measure his conduct had been either gratuitous or unreasonable, nor that he had been the author of his own misfortune.

8. [183]

   The Accused drew attention to a decision of the Chief Judge in the District Court of Western Australia which he submitted bore similarities to these proceedings. The Accused did not submit that the decision to grant a stay in that case was binding on this Court, as it clearly is not, but nevertheless represented an instance in which similar facts had been considered by another Court as warranting the grant of a stay of a trial: Cummings v R (1994) 12 SR (WA) 172.

9. [184]

   The Accused in his submissions also drew attention to the fact that on proper construction of everything which had occurred with respect to the Douglas Park property, the Court ought find that the wife of the Accused was entitled to the entirety of that property.

Crown Submissions

1. [185]

   The Crown opposed the application. In particular, the Crown drew attention to the need for the Accused to demonstrate that he was unable to obtain legal representation “… through no fault on his or her own part”.

2. [186]

   The Crown also noted that, a court, when considering whether a trial could be fair in all of the circumstances where an accused was unrepresented, was required to consider not only the interests of the accused but also the interests of the Crown and the community.

3. [187]

   The Crown drew attention to the decision of the Court of Criminal Appeal in R v BK [2000] NSWCCA 4 at [31] where Carruthers AJ said:

4. [188]

   In that judgment, Carruthers AJ at [33] also drew attention to what had been said by the Court of Appeal in Moss v Brown [1979] 1 NSWLR 114 at 126, and went on to say this:

5. [189]

   The Crown submitted that having regard to the status of the legal title of the Douglas Park property, namely that the Accused was entitled to 50% of it, he could not be regarded as indigent. The Crown submitted that half of the value of that property, namely $500,000, would be a sufficient amount to fund legal representation for the balance of the Accused’s trial. It submitted that the Court would not be persuaded that the arrangement (which I have discussed earlier) was sufficient for the wife of the Accused to obtain a beneficial interest in the Accused’s one-half share of the Douglas Park property. I have earlier discussed the issue of the entitlement of the Accused to the Douglas Park property. In light of my conclusions at that time, it follows that I do not accept this submission by the Crown.

6. [190]

   The Crown’s alternative submission was that, to the extent that the Accused was indigent, it was through his own actions and his fault. The Crown submitted that the transfer of the Douglas Park property must have taken place with the legal aid application in mind:

7. [191]

   The Crown submitted that the conduct of the Accused was comparable to the conduct discussed in The Queen v Connell (No.7) [1995] 13 WAR 283. In particular, the Crown relied upon the passage in the judgment of White J at [285] the following effect:

8. [192]

   The Crown accepted that the charges with which the Accused was confronted were of a most serious kind and that the Crown Brief was large and complex. The Crown accepted that it was desirable in all cases, but particularly in complex and serious cases, that an accused person be legally represented. The Crown however, submitted that, having regard to the future conduct of the trial in the particular circumstances of this case, it would not be an unfair trial if the Accused was not legally represented.

9. [193]

   In so submitting, the Crown accepted that if the Accused was unrepresented for the balance of the trial then there would be a significant additional burden upon the Accused (as well as upon the Crown and the trial Judge). Nevertheless, it said that a fair trial would still be possible. The Crown noted that in assessing that proposition, the Court had to take into account fairness to the Crown and to the community. It submitted that the community interest weighed heavily in favour of having the trial completed, and completed as soon as possible.

10. [194]

    Ultimately, the Crown submitted:

Discernment

1. [195]

   It is clear and not in dispute that the Accused is standing trial for serious offences. The offences with which he is charged are clearly matters of great seriousness. With respect to the charges of murder, the Accused faces the possibility of a sentence of life imprisonment. A number of the other charges carry lengthy maximum penalties. It could not be gainsaid that the Accused is confronted with defending serious criminal charges.

2. [196]

   Equally, it is not in doubt that the Accused does not, at the time this motion was heard, have legal representation. The legal firm AR Conolly & Co and its two principals – Mr A R Conolly and Ms E Ramsay - have informed the Accused that they are no longer prepared to continue appearing for him because he is unable to fund their continued retainer. However, Mr Conolly has informed the Court that if funding was made available for the Accused, he and Ms Ramsay would be available to continue to represent the Accused.

3. [197]

   It also follows from my earlier conclusion that the wife of the Accused is entitled to the Douglas Park property and, having regard to my satisfaction that the entirety of the net proceeds of sale of the Casula property together with the accumulated savings of the Accused, have been spent on legal costs and that the Accused has no other assets available to him, he is indigent within the meaning of that term as it is used in Dietrich.

4. [198]

   The Crown’s submission that the Accused could conduct the balance of the trial without legal representation is unpersuasive. There are a number of reasons for that, including:

5. [199]

   In addition to these matters, the Accused would be asked to take over part‑way through the trial. When it comes to submissions, the capacity of an accused without legal representation to review the transcript to date and the 356 exhibits which have been tendered for the purpose of formulating submissions would be, in my assessment, an enormous burden.

6. [200]

   The nature of this trial, the range of the evidence, the number of the witnesses to be called, the complexity of the legal issues and the ability to put focussed and meaningful submissions at the end of the trial, are all components of a task which in my assessment is beyond the capacity of the Accused to undertake without legal representation.

7. [201]

   I recognise that there is a public interest in the hearing and determination of the Crown case against the Accused. The charges are serious. The subject matter of the proceedings is a matter of significant impact to the functioning of a democratic society. The administration of justice requires that this trial be completed, but I am firmly of the view that without legal representation the likelihood of a fair trial being achieved is very low.

8. [202]

   The Accused has a right not to be tried unfairly. Without legal representation, that right is unlikely to be vindicated.

9. [203]

   I conclude that it is appropriate, unless legal representation can be obtained, that the trial due to recommence on 11 March 2019 ought be adjourned or stayed. It is essential that the Accused with the benefit of these reasons for judgment makes a further application for legal aid and promptly. That is because the time for the making of a formal order for an adjournment has not yet arrived. The time for such an order will arise on 11 March 2019. The conduct of the Accused between now and that date may well be a factor to which the Court could have regard in determining finally, whether it is appropriate to exercise its discretion to order an adjournment or a stay.

10. [204]

    Equally, the Crown, having regard to the public interest, may wish to take some further steps with a view to ensuring that the Accused will not be without legal representation when the trial is due to resume.

11. [205]

    Accordingly, it is appropriate for the Crown and the Accused’s lawyer to have the opportunity to make submissions as to what the terms of any order should be.