R v Warwick (No 69)

By Notice of Motion filed 12 July 2019, Mr Leonard Warwick (the applicant) applies to have his trial, which is part heard before Garling J, temporarily stayed to enable him to obtain legal representation.

That relief is sought in circumstances where Mr Ertunc Ozen SC, with Ms Siobhain Climo of counsel, retained by Legal Aid NSW to represent the applicant at his trial, instructed by Mr Nicholas Ashby, solicitor, withdrew from the trial proceedings on 14 June 2019. On the same date, leave was sought and granted for Mr Ashby to withdraw.

Mr Alan Robert Conolly and Ms Elizabeth Ramsay, solicitors with AR Conolly & Company Lawyers, appear on the Notice of Motion pro bono. They have no retainer to appear for the applicant on the resumption of the substantive trial proceedings.

Garling J is presiding over the applicant’s trial without a jury as provided for in s 132 of the Criminal Procedure Act 1986 (NSW).

The applicant was arraigned before his Honour on 3 March 2017, at which time he entered pleas of not guilty to each of 24 counts, including four counts of murder, allegedly committed between 1980 and 1985 contrary to s 18(1) of the Crimes Act 1900 (NSW). The remaining counts on the indictment, variously charged contrary to ss 28, 30, 46 and 204 of the Crimes Act, relate to allegations that the applicant placed explosives in a vehicle and near a building either maliciously or with intent to murder or to cause grievous bodily harm. Three of the 24 counts are charged in the alternative.

Before the trial was fixed to commence on 18 February 2018, his Honour delivered a number of pre-trial rulings, the most significant of which concerned the admissibility of tendency and coincidence evidence, the subject of three notices served by the Crown on 22 June 2017 in accordance with ss 97, 98 and 101 of the Evidence Act 1995 (NSW). At the time of the service of those notices, the applicant was represented by Mr Thomas of counsel, instructed by Havas and Dib Lawyers. They also appeared at the pre-trial hearing.

On 6 October 2017, his Honour published a judgment in which he found that having regard to the similarities in the circumstances in which each of the seven Events which give rise to the 24 counts on the Indictment occurred, and in the events themselves, the evidence identified by the Crown as both coincidence evidence and tendency evidence was available in proof of all counts on the Indictment: R v Warwick (No 2) [2017] NSWSC 1225. In reasoning to that conclusion his Honour was satisfied that each of the seven Events occurred at the time when the applicant's Family Court proceedings were on foot. He was also satisfied that the intended target of each count on the Indictment (including the four murder counts) related in some way to issues of child custody and/or the distribution of matrimonial property adverse to the applicant’s interests in the Family Court proceedings. His Honour also found that save for two counts of murder by use of a firearm (being the murder of the applicant's brother-in-law, Mr Blanchard, and the murder of Justice David Opas) the balance of the counts on the Indictment involved the detonation of an explosive device, including at the home of Justice Richard Gee, as a result of which the judge sustained serious injuries, and the home of Justice Raymond Watson where the judge’s wife, Ms Pearl Watson, was killed.

On 24 November 2017, Havas and Dib Lawyers withdrew from the proceedings. Thereafter, until 10 April 2018, on the various occasions when the trial was called over by Garling J, Mr Thomas (on occasion led by Anthony Bellanto QC) remained in the proceedings, by that time instructed by AR Conolly & Company Lawyers, including an appearance on 9 February 2018 when, on the applicant's motion, the 19 February 2018 trial date was vacated and a new trial date of 14 May 2018 appointed. On or about that date, the Court was advised that Mr Conolly would be appearing without counsel to conduct the trial on the applicant’s behalf.

The substantive trial proceedings ultimately commenced before his Honour on 15 May 2018 with the Crown’s opening address. As a result of multiple applications by Mr Conolly for an adjournment in which he sought more time to prepare for the applicant’s trial, the trial did not commence with the calling of the first Crown witness until 16 July 2018.

By 20 December 2018, when the trial adjourned for the law term vacation, the trial had proceeded, although not without interruption, over 99 sitting days. Seventy-one witnesses were called by the Crown and cross-examined by Mr Conolly. Twenty-one witnesses gave opinion evidence in areas of specialised knowledge, including in ballistics, explosives, DNA and handwriting. The trial transcript comprised 6,000 pages, however only 4,361 pages involved evidence of witnesses in the proceedings. The last witness was called on 13 December 2018.

On that date, Garling J invited the parties to consider whether, in light of the evidence that had been called over the course of the trial to that date, and in light of the issues that his Honour regarded as the critical issues to be litigated in the trial, all or most of which had been adduced in the evidence by that time, all of the remaining 155 witnesses in the Crown Index of Witnesses needed to be called to give oral evidence and cross-examined (T5667). He offered the following analysis:

On 18 December 2018, the Crown provided the Court, at his Honour’s request, with a 24 page table headed “Witnesses Remaining to be Called in the Crown Case” (referred to in these proceedings as the “Schedule of Witnesses”). The document was prepared by the Crown referable to the index to the Crown Brief.

The Schedule identified by name the 155 remaining lay witnesses according to the event to which their evidence related. The Crown also indicated for each witness whether it intended to rely upon the witness’s evidence. There was also provision for the Crown to indicate whether their evidence appeared to be uncontroversial and whether the statement might be tendered subject to admissibility as to any part of the statement, without the need for the witness to attend to give oral evidence and be cross-examined. Finally, there was provision on the Schedule for the defence to indicate whether, irrespective of the Crown’s position, they wanted a witness called for cross-examination or whether they would agree to their statement being tendered, subject to amendment.

On 18 December 2018, his Honour made an order that on or before 4pm on 23 January 2019 (the date fixed for the resumption of the trial) the applicant was to serve on the Crown and the Court a response to the Schedule of Witnesses.

No response has been served on the Crown or provided to the Court to date.

On 29 January 2019, the date fixed for resumption of the applicant’s trial, Mr Conolly informed the Court that his retainer to appear for the applicant had been terminated because the applicant could no longer privately fund his defence. Mr Conolly informed his Honour that he would continue to appear pro bono on the Notice of Motion, filed that day on behalf of the applicant, seeking a 12 week adjournment of the trial.

There is no evidence on this application or otherwise in the transcript of the trial proceedings, as to what transpired between the applicant and his solicitors between 18 December 2018 and 29 January 2019 with respect to their failure to comply with his Honour’s orders. An affidavit from Ms Ramsay (a solicitor employed by AR Conolly & Company Lawyers) was read in support of the adjournment application, in which she stated that they “continued to act for Mr Warwick on a limited basis since December 2018”, did not address the issue.

On 31 January 2019, the trial was adjourned until 11 March 2019 (R v Warwick (No 63) [2019] NSWSC 41). On that date, his Honour also directed that any Notice of Motion for a temporary stay of the trial beyond 11 March 2019 would be heard on 18 February 2019. A timetable was set for the service of evidence and submissions in the event that a Notice of Motion was filed.

By Notice of Motion filed 7 February 2019, the applicant sought a temporary stay to allow him the opportunity to secure legal representation (the same relief he seeks in the Notice of Motion filed on 12 July 2019).

That application was heard by Garling J between 18 and 21 February 2019. Mr Conolly appeared in those proceedings.

On 28 February 2019, although his Honour delivered a judgment on the stay application, he did not make final orders (R v Warwick (No 64) [2019] NSWSC 163). He did find, however, on application of the principles in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, that the applicant was both indigent and without legal representation without fault on his part and, further, that unless he could secure legal representation for the continuation of his trial on an indictment charging serious offences, the trial should be stayed. Rather than making a formal order to that effect, his Honour invited the applicant to make a further application for a grant of legal aid to fund his continued defence at public expense, having noted in the course of the judgment that an earlier application for legal aid had been granted subject to conditions that the applicant could not meet, including that he procure from his wife a charge over the matrimonial property.

In the course of that same judgment his Honour set out, in considerable detail, the history of the proceedings to that date, including the circumstances in which AR Conolly & Company Lawyers acted in the pre-trial proceedings and thereafter when they were first retained by the applicant to appear for him at trial without counsel, and the arrangements which were in place from that time for the applicant to privately fund the costs of his trial. In that regard, his Honour also noted that, until the solicitors terminated their retainer on 29 January 2019, the applicant had incurred costs in the amount of $4,581,729, the quantum of which attracted comment at [80]-[86].

On 15 March 2019, the final judgment on the applicant’s application for a temporary stay was delivered (R v Warwick (No 66) [2019] NSWSC 317). The application was refused in circumstances where, on 6 March 2019 when the trial was next called over before his Honour, the Chief Executive Officer of Legal Aid NSW appeared and informed his Honour that the applicant had been granted legal aid, effective from 4 March 2019, without the condition to which the earlier grant had been subject. As the evidence on this application makes clear, legal aid was granted on terms that a solicitor from Legal Aid NSW would be instructed to represent the applicant, and that either a public defender or a barrister from Legal Aid's Complex Indictable Panel would be briefed to appear at the applicant’s trial.

On 8 March 2019, Mr Ashby, a solicitor with Legal Aid NSW, appeared before his Honour and announced his appearance for the applicant. Mr Ashby informed the Court that it was his intention, as the solicitor with conduct of the proceedings, that senior and junior counsel would be briefed to appear in the continuation of the applicant’s trial under his instructions.

In a document entitled “Authority to Act”, signed by the applicant on 9 April 2019, he confirmed that:

On Mr Ashby’s application his Honour adjourned the proceedings until 15 March 2019 to allow him the opportunity to confer with the applicant, to confer with counsel, and then to arrange for the applicant and counsel to confer as to the further conduct of the proceedings and to confirm the applicant’s instructions.

On 15 March 2019, Mr Ozen SC, Ms Climo and Mr Ashby appeared before his Honour. Mr Ozen sought a six month adjournment to prepare for the trial. It is necessary to extract part of the transcript of proceedings of that day and 10 May 2019 (when Mr Ozen, Ms Climo and Mr Ashby again appeared before his Honour) given Mr Conolly’s attack on the propriety of Mr Ozen’s approach:

On 10 May 2019, Mr Ozen, Ms Climo and Mr Ashby again appeared before his Honour, and the following exchange occurred:

His Honour published an ex tempore judgment on 10 May 2019, in which he gave directions for the further conduct of the trial consistent with his direction that the trial resume on 29 July 2019. His Honour made the following orders:

The orders made by his Honour on 18 December 2018, the subject of the first direction made on 10 May 2019 (above), are relevant to this application in a number of ways. In the context of his Honour's knowledge of evidence and the issues that had crystallised by December 2018, including the cross‑examination by Mr Conolly of 21 expert scientific witnesses, 16 police witnesses and 34 civilian witnesses called by the Crown to prove the facts relating to each of the seven Events comprehended by the 24 counts on the Indictment, it is unsurprising that his Honour saw the need for the applicant to focus on the remaining witnesses over the six week adjournment from 20 December 2018. When nothing was done to address that issue by the time the applicant’s former solicitors withdrew, it is hardly surprising that on the appointment of new lawyers for the further conduct of the trial, the same issue presented.

It was that very issue, amongst others, to which the applicant’s attention was directed in the first telephone conference with his counsel and solicitors on 15 March 2019. The conference notes of that date record:

Each of the 13 conferences convened between 15 March 2019 and 7 June 2019 addressed the need to complete the Schedule of Witnesses in accordance with his Honour’s directions.

On 21 May 2019, the applicant signed a set of written instructions governing the terms upon which the relationship of lawyer and client would continue:

On 10 June 2019, the applicant's daughter sent an email to the Chambers of Garling J:

On 14 June 2019, Mr Ozen appeared before his Honour with Ms Climo to inform the Court that his retainer to act for the applicant had been terminated. Mr Ozen also sought his Honour’s leave for Legal Aid NSW to withdraw from the proceedings.

Leave was granted and the trial was adjourned to 21 June 2019.

On 21 June 2019, Mr Conolly appeared for the applicant. Mr Conolly informed the Court that he was instructed to act on a limited, pro bono basis to investigate Legal Aid’s withdrawal from the matter. His Honour questioned the applicant about his preparedness for the recommencement of the trial on 29 July 2019 and his position vis-a-vis the Schedule of Witnesses.

On 15 July 2019, a Notice of Appearance was filed by Mr Conolly, to appear at the hearing of the application for a temporary stay of the trial in accordance with the Notice of Motion filed on 12 July 2019.

Between 29 July 2019 and 1 August 2019, his Honour gave directions for the filing and serving of evidence and submissions in support of the stay application. The application was fixed for hearing on 5 August 2019.

On 5 August 2019, the hearing of the application for the temporary stay commenced over which I presided.

After ruling on objections to the affidavits upon which the applicant relied, the following affidavits were read:

Only Mr Warwick was required for cross-examination.

In further support of the application the following exhibits were tendered:

The Crown relied upon the following affidavits:

Both Mr Ashby and Ms Climo were required for cross-examination.

The Crown also tendered the following exhibits:

On 14 August 2019, I reserved judgment on the Notice of Motion.

The law that governed the application for the temporary stay of proceedings determined by Garling J in February 2019 (R v Warwick (No 64) [2019] NSWSC 163) as set out by his Honour at [15]-[22] of his Honour’s judgment does not, on a strict analysis of the relief that is sought by the applicant on this application, govern these proceedings.

The relief sought in the Notice of Motion filed on the earlier stay application appears to mirror the relief sought in the current application (in the sense that a temporary stay was sought then and now until such time as the applicant is able to secure legal representation) on this application. However, unlike the earlier stay application, there is no evidence on this application that the applicant has any prospect of securing legal representation at any time in the future. There is nothing in the evidence to suggest that he has access to funds to retain private lawyers or that he has been offered, or might be provided with, pro bono legal assistance, and nothing to suggest that any enquiries have been made of Legal Aid NSW as to prospects of him being considered as a candidate for a fresh grant of legal aid or that an application for a grant of legal aid has been lodged and is under consideration. Finally, there is no evidence that the applicant has any prospect at all of receiving any other source of public funding.

Even were I to find the termination of the applicant’s relationship with Legal Aid NSW, and with counsel retained by them to act on his behalf, was his fault (in the relevant sense), but that there remained a reasonable possibility that the applicant might obtain alternate legal representation without unacceptable delay, the question whether, as a matter of discretion, after a balancing of the competing interests, the stay ought be granted to secure that representation would arise (see R v Small (1994) 33 NSWLR 575 at 590-591). The present application is not, however, advanced on that basis. Having regard to the way the application has been advanced and the evidence adduced by the applicant to support it, it seems to me that the applicant is, in reality, seeking an adjournment of the trial to allow him some additional time to prepare to represent himself.

That analysis is subject to one important proviso. Were I satisfied that the applicant is currently without legal representation through no fault of his own, that is, were I to accept Mr Conolly’s submissions that the dissolution of the lawyer/client relationship that Mr Ozen notified to Garling J on 14 June 2019, was not precipitated by any unreasonable conduct on the applicant’s part, but was instead a product of unprofessional conduct on part of each of the lawyers (including an unreasonable response by them to the email the applicant sent to the trial judge on 10 June 2019), there might be a theoretical prospect that the applicant might be considered as a candidate for a fresh grant of legal aid.

In making that observation, I should not be taken to suggest that Legal Aid NSW might, or even less that they should, look favourably on any fresh application for a grant of legal aid. I am simply making the observation that were I to make a positive finding that the applicant's conduct in his dealings with his lawyers was reasonable in all the circumstances, including, most importantly, that he discharged his obligation to give careful consideration to their advice and their request for instructions to facilitate the further conduct of the proceedings in accordance with the timetable set by Garling J on 10 May 2019 for the resumption of the trial, then, notwithstanding the waste of public money in the 12 weeks between about 14 March 2019 and 14 June 2019, it might be that there is at least some prospect that legal aid would be reinstated and legal representation provided pursuant to that grant for the resumption of the trial.

Irrespective of the precise characterisation of the relief the applicant seeks, an enquiry into the circumstances in which he is currently without representation in the substantive trial proceedings is unavoidable. As the collected authorities to which I will presently refer make clear, the focus of that enquiry is whether I am satisfied the applicant is without representation through no fault on his part. Unlike the approach Garling J took in resolving to grant a temporary stay in R v Warwick (No 64) at [195]-[205] in accordance with the principles in Dietrich, I am not concerned with whether a trial in which the applicant is unrepresented will be unfair. Neither am I concerned with whether a trial in which an accused appears unrepresented and is convicted will amount to unfairness giving rise to a miscarriage of justice. Those issues may arise at another time but they do not arise on this application.

The authorities that have considered whether a trial judge’s refusal to grant an adjournment to an unrepresented accused was ultimately productive of a miscarriage of justice do, however, guide me as to the approach I should take on this application since in those cases, the question of whether the accused was relevantly “at fault” in causing or precipitating the situation in which he or she was unrepresented, and what is comprehended by the concept of fault in that context, was discussed.

R v Batiste (1994) 35 NSWLR 437 was a Crown appeal against a successful Dietrich application made by the respondent before the commencement of her trial. The respondent had been represented by counsel and solicitors pursuant to grant of legal aid. She had written a letter to her lawyers ahead of the trial making certain allegations about their conduct. The Court was not informed of the contents of the letter, the respondent having maintained a privilege claim over the letter. That said, on receipt of the letter, the respondent's solicitors advised her that, having taken the view that there had been a complete breakdown of the solicitor/client relationship, they could no longer act for her.

The respondent then wrote to the Legal Aid Commission (the predecessor to Legal Aid NSW) and informed them that she had lost confidence in her solicitors claiming, among other things, that they had failed to adequately carry out her instructions; failed to provide her with sufficient advice as to the conduct of the trial; failed to answer her questions; and not conferred with her sufficiently.

In upholding the appeal the Court held that the trial judge had failed to consider the question of the respondent’s fault which could only be resolved by reference to the circumstances under which the respondent became unrepresented and denied Legal Aid. Smart J made the following observations concerning the issue of fault in the circumstances the respondent faced (at 444-445):

In Frawley v R (1993) 69 A Crim R 208 the appellant was convicted of murder after a trial in which he had represented himself. He had a grant of legal aid, but had repeatedly withdrawn his instructions to counsel briefed to appear for him on the basis that he had no confidence that the trial would be run in accordance with his wishes. Another counsel was briefed but, on the day of the trial, that counsel withdrew on the grounds that the appellant kept altering his instructions, had no confidence in his legal representatives and was unwilling to accept his advice as to the conduct of the case. The history of the appellant's dealings with those briefed by Legal Aid to appear for him suggested that the appellant was unlikely ever to be satisfied with his legal representation. The appellant made an application to adjourn the trial to attempt to obtain further representation. The application was refused.

On the appeal, the issue was whether or not the trial judge had given the appellant sufficient assistance (given he was unrepresented) and whether or not the case was too difficult for the appellant to have defended himself. It was said by the appellant that in those circumstances a miscarriage of justice had resulted.

In rejecting that ground of appeal, Gleeson CJ observed (at 211-212) that the trial judge's decision to proceed with the trial in which the appellant was unrepresented was correct having regard to the way the appellant had conducted himself in respect to his various legal representatives. His Honour said:

In his Honour’s view, the question whether an unfair trial resulted was to be assessed in the context of the appellant bearing fault for the fact that he was unrepresented. Gleeson CJ said (at 212):

Having assessed the evidence in the case in detail, Gleeson CJ (with whom the other members of the Court agreed) concluded that the appellant’s trial had not been unfair (at 215):

In R v Osborne [2002] VSCA 156; 133 A Crim R 519, the appellant had become unrepresented part way through his trial. He had terminated his retainer with his counsel after a dispute over the way in which the appellant wanted aspects of the trial conducted which counsel regarded as being in conflict with his ethical and professional obligations. The appellant then sought an adjournment of the trial which was refused. It was argued on appeal that the failure to grant the adjournment had given rise to a miscarriage of justice. In rejecting that ground of appeal, Chernov JA (with whom the other members of the Court agreed) considered the decision in Dietrich on the question of “fault” (at 528):

In R v Grosser [2002] SASC 193 the applicant made a Dietrich application after he dismissed the lawyers assigned by the Legal Services Commission to represent him. Duggan J described the break down in the relationship between the applicant and his lawyers in this way, at [57]:

In dismissing the application, Duggan J held that it cannot be said that the applicant was unrepresented “through no fault of his own”:

The decision to refuse the stay was not disturbed on appeal: R v Grosser.

In R v IAS [2004] SASC 240; 89 SASR 159 the appellant had also been left part way through the trial without legal representation, after terminating his instructions to two sets of solicitors and counsel. The trial judge refused an application to adjourn the proceedings, or declare a mistrial, to allow the appellant to secure the services of a further solicitor and counsel. Besanko J (with whom the other members of the Court agreed), having reviewed the authorities cited above, considered the question of whether the appellant had been at fault at [49]:

Mr Ashby gave evidence that the conference notes annexed to his affidavit on 31 July 2019 was prepared from his contemporaneous notes as to which he gave the following evidence in examination in chief (at T121):

Mr Conolly called for the notes which were produced but not tendered.

Mr Ashby also gave evidence that the type-scripted version of the conferences were typed by Mr Ozen as he read from them, doubtless to reproduce them in a form for inclusion in his affidavit. I propose to proceed on the basis that the notes not only accorded with Mr Ashby’s memory but Mr Ozen’s and Ms Climo’s memory of the conferences they attended.

In a lengthy cross-examination of Mr Ashby, extending over two days, Mr Conolly did not suggest, directly or indirectly, that the conference notes were inaccurate in any respect. He went further and conceded in his oral submissions that Mr Ashby had given truthful and honest evidence, by which Mr Conolly must be taken to have conceded that Mr Ashby gave truthful and honest evidence that the conference notes fairly reflected the course of conferences, including, in particular, the applicant’s instructions (variable as they were from time to time) on the issue of the Schedule of Witnesses.

The conference notes were addressed by the applicant in his affidavit of 2 August 2019. The applicant challenges the accuracy of the notes in a number of respects, the most critical being what occurred in the conference on 21 May 2019. In the face-to-face conference at the prison attended by all three lawyers and convened over the course of one and three-quarter hours on that day, one of the four issues to be discussed and identified at the outset of the conference was the Schedule of Witnesses. The notes record as follows:

In his affidavit of 2 August 2019, the applicant, in dealing specifically with that note, denies telling his lawyers that “if agreement can't be reached on a specific witness he wants all witnesses to be called”. He also says that at no time (that is, as I understand his evidence, neither in that conference or in any other conference) did the solicitors go through the list of remaining witnesses individually and explain their advice in any detail as to why or why not each witness should be cross-examined. He goes on to say that whilst the witness list was referred to from time to time, he could not absorb what his lawyers were saying, in what he described as a “brief way” about the few witnesses “that were mentioned”. In cross-examination, the applicant maintained that position.

In final submissions, when confronted with the likelihood that very significant weight would likely to be given to the unchallenged contemporaneous notes, Mr Conolly submitted that it is “unusual in the extreme” for senior counsel to prepare the conference notes of his instructing solicitor and have the notes he prepared annexed to the instructing solicitor’s affidavit. He submitted that Mr Ozen should have been called to give evidence and further “Mr Ashby’s notes should have been Mr Ashby's notes” and not shared with counsel and that it was “inappropriate” for him to do so (T367). As I made clear in the course of submissions, I reject that submission.

I accept that the risk that the notes might contain privileged material beyond the applicant's limited waiver of privilege for the purposes of these proceedings may explain why Mr Conolly did not seek unsupervised access to the original conference notes produced by Mr Ashby. However, I do not accept Mr Conolly’s submission that that in any way prevented him from challenging the accuracy of the typewritten notes or suggesting to Mr Ashby that significant parts of the notes wrongly attributed to the applicant various statements which the applicant denied making. Neither do I accept his further submission that, where the notes are directly challenged by the applicant, I would prefer his version over the contemporaneous notes of the applicant's solicitor.

Where there is a divergence between the applicant's account of the conferences and that of his lawyers, I propose to treat the conference notes as the most reliable record of what occurred. In taking that approach, I am influenced by what I consider to be a number of untruthful answers the applicant gave in cross-examination, including but not limited to his claim that the conferences were brief and unstructured and that he was never taken through the Schedule of Witnesses (as to which see below).

In the applicant’s evidence in cross-examination, the criticisms he made of his lawyers in his affidavits were amplified considerably. There was a central theme to which he returned on multiple occasions to the effect that his lawyers spent very little time explaining things to him. He also claimed that the lawyers were always in a hurry to leave which is why they “whittled [the witness list] down to only three or four witnesses instead of 200” (T45) and the conferences were short and rushed (T90). It is clear beyond question this is a misrepresentation of the nature and extent of successive conferences with his lawyers as reflected in the conference notes. Neither Mr Ashby nor Ms Climo were cross-examined to seek to establish the truth of the applicant’s claims.

The applicant was invited by the Crown to confirm that he had had access to all the statements which comprised the Crown Brief, given that had been uploaded to the computer provided to him in prison in the form of what was described in the evidence as “the e-Brief”, after AR Conolly & Company Lawyers withdrew from the proceedings in January 2019. In response, the applicant claimed, repeatedly, that many of the witness statements were “blacked out” and he could not read them. My invitation to the applicant and his lawyers to produce the computer in order to verify that claim was not taken up. I am satisfied by the version of the e-Brief tendered on the application, despite varying quality of some of the statements of witnesses uploaded in electronic form, in part because some were taken in the order of 30 years ago, that none were “blacked out” or unreadable. I simply do not accept the applicant's evidence that he was unable to access the witness statements identified on the Schedule of Witnesses because of a problem with the reproduction of the statements electronically.

In addition, there are repeated references in the conference notes to the applicant having read and considered the witness statements, with no complaint to any of his legal aid lawyers that he could not read any of the statements and no request of them that paper copies be provided. There is also repeated reference in the conference notes to the applicant having been provided with the Schedule of Witnesses.

The following questions reveal what I consider to be a good example of the applicant’s combative approach in the dealing with the questions asked of him by the Crown (T48):

When I sought clarification from the applicant, he gave the following evidence. After accepting that he had seen the Schedule of Witnesses which was produced and shown to him in the witness box (but being unable to say when it was he had first seen it), he gave the following evidence (T50):

He went on to give the following evidence (T54-T55):

The applicant also gave categorical evidence (T67) that he received what he described as “no reasoned explanation” for the individual witnesses on the Schedule of Witnesses it was “just a blanket answer to cover everybody… They never individualised witnesses and went over each witness with me at all. They simply didn't do that.”

Upon being taken by the Crown to paragraph 78 of his affidavit of 2 August 2019, where he said that he had looked through the Schedule of Witnesses and nominated the “couple of people who we thought were important to cross-examine,” the applicant was at pains to emphasise that he wanted Mrs Opas called to give oral evidence because in his view there was “something fishy” about her not being called given that she was as he described it at (T54) “the number one witness … [being] a witness to the actual death of her husband, and what happened, and what happened beforehand and what happened afterwards”. It is clear to me that this aspect of his evidence reflects a continuing and steadfast refusal to accept the advice from his lawyers that there was no justification in calling Mrs Opas and further, that they did not propose to do so simply at his bidding.

When asked in cross-examination (T68) whether he received advice on 7 June that Mr Ozen would not cross-examine witnesses on inducements to give statements if there was no evidentiary basis to cross-examine a witness and that Mr Ozen would not call a witness if the purpose of the cross-examination was simply to embarrass a witness, the applicant said he could not recall being given that advice. I have considerable difficulty accepting he was being truthful on this occasion and on other occasions when he claimed (or feigned) a lack of memory.

In particular, I reject the applicant’s evidence that he had no recall, in the conference of 21 May 2019, of signing the letter of instructions or it being read to him before he signed it. Again, the conference notes record otherwise. However, he did say that he should not have been invited to sign the letter of instruction and it was not to his advantage to do so since it placed him at risk (T108-109).

He gave the following evidence (T109):

He then gave the following further evidence (T99-T103):

Upon being taken to the conference of 31 May 2019 (the conference that was convened after the previous conference on 27 May 2019 concluded with the applicant wanting the opportunity to reflect upon what was, by that date, the settled Schedule of Witnesses), the applicant claimed no recall of demanding written advice and withholding instructions until it was provided. When he was taken to the conference at the prison with Mr Conolly and Ms Ramsay between 27 May 2019 and 31 May 2019, and his account in his affidavit of 29 July 2019 that arrangements had been made for Ms Ramsay to provide him with a note outlining the matters they had discussed in conference, he denied receiving anything in writing from Ms Ramsay. He was asked the following question (T99):

He also said that he did not think he told his lawyers in the conference of 31 May 2019, that Mr Conolly was still working on his case and claimed no recall of telling his lawyers during the conference on 7 June 2019 that “Alan wants the list of remaining witnesses for cross examination” (T111).

Whatever might have been his motivation in denying or feigning no recall of his continuing relationship of lawyer/client with AR Conolly & Company Lawyers, his attitude to being questioned about it also reflects adversely on his credit.

Mr Conolly submitted that the reasonableness of the applicant’s dealings with his lawyers, and the related enquiry into the issue of fault, needs to be assessed in the context of what he submitted were questions concerning the applicant’s capacity and acuity.

Although Mr Conolly could not give evidence from the Bar table of his dealings with the applicant and any view he may have formed as to the applicant’s capacity (as I had occasion to remind him, and repeatedly), Mr Conolly ultimately rested his submissions on what he claimed was the “shock” of seeing his client in the witness box and, I take it, the applicant’s answers to questions asked of him under the close questioning by the Crown. Accepting, for the moment that Mr Conolly’s observations that he was “shocked” at the way the applicant gave evidence might mean he had not experienced the applicant as intemperate or bellicose or difficult to reason with when he acted for him in the criminal proceedings, that may simply be explained by notorious differences in the way an accused person confers with his own lawyers and the way he or she answers questions in the witness box when cross examined.

Mr Ashby was questioned by Mr Conolly concerning his observations and assessment of the applicant’s capacity to understand advice and receive instructions. Ms Climo was asked the same question. They both gave evidence that there was nothing in their dealings with the applicant over the course of successive conferences from 19 May 2019 through to and including 7 June 2019, the great majority of which extended well over an hour and many of which extended close to two hours, to raise any concerns as to the applicant’s capacity to understand the advice they were providing for his consideration, or his capacity to understand his obligations to provide instructions consistently with the letter of instruction signed by him on 21 May 2019 including, in particular, his understanding of the professional obligations of his lawyers to make forensic decisions on his behalf independently and in accordance with their ethical obligations.

Mr Conolly’s submission was that, while I would be satisfied that both Mr Ashby and Ms Climo were genuinely of the considered opinion that the applicant was sufficiently acute and capable to meaningfully participate in providing instructions and receiving legal advice, the applicant's answers under cross-examination in these proceedings betray the fact that he suffered then and suffers now from what Mr Conolly described as a lack of mental acuity compromising his capacity to understand the process in which he was engaged. As I understand his submission, were I to make that finding, I would not find that the circumstances in which the relationship of lawyer/client was terminated was as a result of fault on the applicant’s part, but rather because the lawyers simply failed to appreciate that the applicant could not provide instructions in any meaningful or coherent way because of his psychological deficits. Having reviewed the applicant’s evidence as summarised above, I am not prepared to make that finding.

Leaving to one side the adverse credit findings I have made on review of the applicant’s evidence in these proceedings, but taking into account the difficulties he had from time to time in the witness box navigating various documents about which the Crown was asking questions and distinguishing between them, there was nothing in the answers given to questions asked in cross-examination, or in the clarifying questions I had occasion to ask him, to suggest to me that he was labouring under any compromised cognitive capacity to understand the significance of what he was being asked.

His attitude to the trial process might reveal something of his subjective belief system or personality type. He holds some apparently entrenched beliefs about the course of the police investigation into the seven Events that underpin the charges on the Indictment, and entrenched beliefs about the motivations of his legal aid lawyers in their dealings with him (including the attribution to Mr Ozen of self-serving motivations in his dealings with the trial judge), and his equally as intransigent negative views about the experience and professionalism of his lawyers. However, that does not in my view raise any question as to his capacity in any relevant sense. Similarly, while his attitude in the witness box might also, on occasions, have revealed a tendency to belligerence and a stubborn refusal to acknowledge the import of the questions asked of him, that is not a sufficient basis to have either adjourned the proceedings to allow for the applicant to be assessed by a psychologist (the application which was made and refused after the evidence closed) neither does it, in any meaningful way, inform the question whether his lack of legal representation is through no fault of his own.

In coming to that view, I note that the applicant's affidavit of 29 July 2019, was structured chronologically as he addressed, and in some detail, and with a relatively sound recall, apparently unaided by any notes, his dealings with his Legal Aid lawyers, and an equally sound recall of his legal conference with Mr Conolly and Ms Ramsay at the prison towards the end of May 2019, when they attended upon him to discuss his relationship with his Legal Aid lawyers. There is no suggestion that conference was the subject of contemporaneous file notes to which the applicant was referred when he swore the affidavit. It follows therefore that his powers of acuity and recall, as recently as the end of May 2019, must have been sufficiently sound, despite his age and circumstances, to raise any question that he suffered from any neurological or cognitive deficit.

In his further affidavit of 2 August 2019, the applicant also addressed, and in some detail, the evidence that had been served by the Crown in opposing the application for the permanent stay, in particular Mr Ashby’s affidavit which included the conference notes.

While it might be readily assumed that the applicant had some assistance in the preparation of his affidavits from those who act for him on this application, there was no evidence adduced from them, on either the application itself or the application to adjourn the proceedings, that in the process of settling the affidavits they encountered any difficulties in inviting the applicant to reflect on and recount the course of his dealings with his Legal Aid lawyers, or to provide Mr Conolly or Ms Ramsay with instructions for the purposes of mounting the application for a temporary stay of his trial. It is also significant that the applicant’s daughter gave no evidence that in her dealings with the applicant she had any concerns as to his mental acuity or powers of cognition.

In the absence of any evidence which demonstrates, or even suggests, any deterioration in the applicant’s cognitive functioning at any time relevant to these proceedings, I am unable to give any weight to Mr Conolly’s submission that no relevant fault can be attributed to the applicant in his being unrepresented at his trial because of his incapacity or lack of mental acuity.

The applicant's case advanced by Mr Conolly orally, and in written submissions, was that in the particular circumstances in which the applicant found himself in March 2019, with the appointment of a new solicitor and senior and junior counsel to act on his behalf in his trial, he acted reasonably at all times in his dealings with them including his attitude to the sole issue that required his immediate instructions in order that the trial could resume before the trial judge, being the completion of the Schedule of Witnesses.

In Mr Conolly’s submission, it was not the applicant’s conduct which was unreasonable but the conduct of his lawyers. He submitted that their conduct fell below what is expected of reasonably competent legal representatives. He submitted that they acted in “a high-handed manner and refused to explain the basis of the decisions they had made as to the conduct of the case” (Mr Conolly’s written submissions in reply to the Crown’s written submissions, paragraph 81.) I reject that submission. It is not only unsupported by the evidence, but positively contradicted by it. Mr Conolly made no attempt in the course of a lengthy cross-examination of Mr Ashby or in his cross‑examination of Ms Climo to make good that submission.

If Mr Conolly’s assertion that the lawyers “refused to explain the basis of the decisions they had made as to the conduct of the case” is intended as a reference to the applicant’s demand, delivered in the conference on 31 May 2019, that he be provided with a written advice from them concerning all 155 witnesses before he was prepared to give his lawyer's instructions as to the completion of the Schedule of Witnesses service. I regard their constructive refusal to provide that advice as entirely understandable and the applicant’s demand of them as unreasonable.

I note that the conference on 31 May 2019 was the seventh conference at which the Schedule of Witnesses under preparation by Ms Climo was discussed, advice rendered and instructions sought. I also note that at a conference on 14 May 2019 the completed Schedule of Witnesses was discussed. I am satisfied that both on that occasion and in the conferences that preceded and followed it, Ms Climo went through each witness statement with the applicant, explaining the basis upon which they were or were not, in her forensic judgment, required for cross examination. Her evidence on this issue is categorical (T293-302):

Mr Conolly did not seek to challenge any aspect of Ms Climo’s evidence by putting to her that she was untruthful.

In my view, not only was applicant's demand for written advice, made for the first time on 31 May 2019, a completely unreasonable demand, the applicant’s conduct in insisting that he be provided with that advice with the default position that he wanted all witnesses called was equally unreasonable as was his insistence in the conference with Mr Ashby on 5 June 2019 that his lawyers “investigate each one of the witnesses”. I note in that conference he also told Mr Ashby that if he represented himself he could “have the 200 witnesses”.

Mr Conolly advanced the allied submission that as at 10 May 2019, the lawyers were responsible for failures in preparation that were “substantial and unacceptable” (T345) such that it was simply not open to Mr Ozen to inform his Honour of the advanced state of preparation of the Schedule of Witnesses. Mr Conolly went further and submitted that Mr Ozen was in no position to make an assessment of the likely number of witnesses to be called to give evidence when he had not yet read the transcript, or the disclosure documents, or had he had “a tie-up with his team on their work so that information was coordinated” (T346).

Finally, in his oral submissions Mr Conolly invited the Court to find that much of what Mr Ozen advised as to the likely course the trial would take in his appearances before the trial judge at successive directions hearings on 14 March 2019 and 10 May 2019 (the substance of which has been extracted above) was “inappropriate” and “prejudicial” (T346-7). In particular, he submitted that by Mr Ozen informing his Honour of the reasonable prospect that witnesses required for cross-examination referable to the Schedule of Witnesses would be significantly reduced, that “we have made very good progress. We will get that schedule to your Honour within a month … It will be a list of five or 10 people that will be called to give evidence” was also inappropriate and prejudicial. The attack on the propriety of Mr Ozen’s conduct before Garling J is entirely without foundation. The submission should never have been made.

Mr Conolly went further still and submitted that it was “forensic nonsense” to suggest that Ms Climo could advise the applicant as to those witnesses which should be called for cross examination “by reading [the statements] in the abstract”. In Mr Conolly’s submission, “Everything hinges on reading the transcript [of the evidence of the trial]” and that the lawyers could not have read the transcript in the time fixed by his Honour to prepare the Schedule (T347).

That submission, as with many of the submissions Mr Conolly advanced on the applicant's behalf, is contradicted by the evidence of Ms Climo and of Mr Ashby. They gave evidence that the trial transcript was read and considered by them as a team. Ms Climo gave the following evidence (T299):

It was further contradicted by Mr Ashby’s evidence that although the timetable for the preparation of the Schedule of Witnesses was tight, it proved to be “doable” because it was achieved.

Mr Conolly’s submissions also ignore (or fail to deal with) the detailed evidence given by Ms Climo as to what she did in preparing to advise the applicant as to the witnesses who, in her judgment, ought to give oral evidence, and the steps she took to ensure the applicant’s comprehension of that advice with a view to confirming his instructions that the Schedule of Witnesses could be served on the Crown and provided to the Court. I regard Mr Conolly’s bald submission that Ms Climo’s approach to the preparation of the Schedule was “forensic nonsense” as also verging on improper in circumstances where it was not put to her that her approach was devoid of forensic acumen and when there was no challenge mounted to the actual judgment she made in nominating 16 witnesses to be called to give evidence on the settled form of the Schedule exhibited to Mr Ashby’s affidavit.

Finally, Mr Conolly’s attack on Ms Climo’s judgment, and the unfounded attack on the propriety of Mr Ozen’s conduct, is unsupported by any objective analysis that Mr Ozen’s assessment of the timing of outstanding matters was flawed or that the decision taken by Ms Climo that 16 witnesses would be required for cross examination was misguided or wrong, or that her nomination of the statements which might be tendered subject to objection was misguided or wrong.

I have no doubt, giving full weight to Ms Climo’s evidence, that there is no substance at all in what Mr Conolly, at least impliedly, contended was a demonstrable failure of professional judgment on her part, both in her preparations for completion of the Schedule of Witnesses or the form in which it was ultimately settled. In that regard, I am prepared to infer that Ms Climo’s description of the preparation by her of the Schedule of Witnesses “colour‑coded” for the better understanding of the applicant (T377) was organised in that way referable to each of the seven Events which have for some years been the cornerstone of the Crown case, the same seven Events that Garling J used on 13 December 2018 to group what his Honour then saw as the likely issues to which the statements of lay witnesses were directed, many of which as his Honour identified seemed to be of little or no relevance.

Despite Mr Conolly’s criticisms in his written submissions of Ms Climo (and by implication Mr Ashby and Mr Ozen) as to her competence and conduct of the applicant’s legal representatives, I have no hesitation in accepting that, in preparing for and in the course of attending at successive conferences with the applicant to obtain his instructions as to the form of the Schedule of Witnesses, Ms Climo took steps that were both rational and practical and completely in accord with the skill and professionalism of experienced criminal counsel.

It is not to the point, as Mr Conolly seems to suggest, that he would have taken a different approach, by arranging to confer with 155 Crown witnesses before resolving whether they should be required to attend for cross-examination as he suggested to Ms Climo in cross-examination (T288). Mr Conolly further submitted that the “proper” approach to the preparation of the Schedule of Witnesses was for Ms Climo to start with “the prima facie premise” that each of the 155 witnesses should be called to give oral evidence unless there is, what he described as, “a proper reason” for the witness not to be called (T353). In his submission, the next step was for Ms Climo to determine which parts of a witness statement were admissible and then to meet with the Crown to determine, statement by statement, which parts of the statement might be admitted in evidence by agreement. Mr Conolly submitted that it was “wrong” for Ms Climo to have come to a view as to whether a witness should be called to give evidence unless and until there is an agreement with the Crown as to what portions of each of those statements will be admitted. In advancing that submission he impliedly, if not expressly, rejected the approach that his Honour had commended to the parties as an appropriate approach when the matter was first raised in December 2018, namely to identify who of the remaining lay witnesses might be able to give relevant evidence addressing the issues that had by that time crystallised as the significant issues in the trial, including the evidence that was capable of demonstrating a material link between each of the seven Events and in turn, by the application of tendency and coincidence reasoning, proof of the applicant's guilt.

What is to the point is that despite the challenges of the task of completing the Schedule assigned to Ms Climo by senior counsel, she assiduously committed what must have been many days to reading and cross-referencing the transcript to the Crown Brief of evidence and the subpoenaed material before coming to the considered judgment that many of the witnesses would not be in a position to give relevant evidence bearing upon the real issues in the trial (as they were assessed to be by senior counsel working cooperatively with his junior and solicitor).

Despite Mr Conolly’s repeated oral submission that the task the lawyers assumed consistent with their retainer to act on the applicant’s behalf at his trial and, as a first measure, to complete the Schedule of Witnesses, was an “impossible” task, the irrefutable fact is that it was achieved.

I also reject Mr Conolly’s submission (at T431) that it was “unreasonable” for Mr Ozen to have taken the position he took responsive to the email the applicant sent to the trial judge on 10 June 2019. I am of the categorical view that, at the very latest, on 14 June 2019 when the applicant refused to answer Mr Ozen’s question as to whether he sent the email, and in fact refused to speak to Mr Ozen at all, the lawyer/client relationship was completely untenable.

I also reject Mr Conolly’s further submission that the email the applicant sent to the trial judge should have been treated by Mr Ozen as nothing more than “a huge red light” signalling that their work with the applicant “had to be reviewed, and how they dealt with him had to be radically reviewed” because of the “grave consequences for the trial and the administration of justice” and “the great inefficiencies that would result”. To suggest, as Mr Conolly did, that the lawyers should have tried to "straighten” up” the relationship with the applicant by devoting further time to go through what Mr Conolly described as the “outstanding evidence” and to submit that they were unreasonable not to have done so, is in all the circumstances, preposterous (T433).

Mr Conolly maintained that submission despite being reminded by me of Mr Ashby’s evidence that both he and Mr Ozen had received advice from their respective professional bodies after the conference of 7 June 2019 (and in Mr Ashby’s case, legal advice provided to him by Legal Aid NSW), that they were obliged to withdraw from the proceedings and, on Mr Ozen’s part, for him to return the Brief in compliance with paragraph 101(f) of the Bar Rules. As the Crown quite properly emphasised in his closing submissions Mr Ozen simply had no alternative but to return the Brief. It appears that Mr Conolly has either not read the Bar Rules or, if he has read them, he does not understand them.

Finally, as I have already noted, in his evidence in the witness box the applicant repeatedly described his lawyers “as a joke”, claiming the conferences were always rushed and short and that he had no time to understand the advice he was being given or to consider it before he was pressed to give instructions with the ultimatum that if he refused, his lawyers would withdraw. That is not a position the applicant resiled from. He was not asked to reflect upon it in re-examination.

Mr Conolly sought to defend the applicant’s description of his lawyers and his treatment of them in that way by suggesting it was defensible and reasonable from the applicant's perspective. That submission was not developed further beyond suggesting that it was entirely inappropriate for the lawyers to include in the signed written instructions they sought and obtained from him on 21 May 2019 the following:

As I understand Mr Conolly’s submission, for Mr Ashby to avert to the potentiality of lawyers ceasing to act if they it did not have time to prepare the case must have had the effect of undermining the applicant’s confidence in his lawyers. In the absence of any evidence from the applicant that paragraph 9 had that effect, indeed his evidence is to the contrary, the submission carries no force. The applicant addressed paragraph 9 of the written instructions in his affidavit of 2 August 2019 in the following way:

In light of what I regard as the settled state of the law as to the principles that are to be applied in determining whether the relief the applicant seeks should be granted, the question is whether, in all the circumstances, the applicant’s conduct before the termination the lawyer/client relationship with his counsel and solicitor as announced by Mr Ozen on 14 June 2019 was unreasonable - a state of affairs which will almost inevitably lead to the fact that he will be unrepresented at the continuation of his part-heard trial. To express the question in a different way: in all the circumstances, is the predicament in which the applicant now finds himself something for which he is not relevantly at fault?

Given Mr Conolly’s submissions that the termination of the relationship of lawyer/ client was not as a result of unreasonable conduct on the applicant's part, but as a result of "inappropriate", "improper" and unprofessional conduct on the part of the applicant's publicly funded Legal Aid team (the Crown submitting to the contrary), the enquiry into the course of the relationship between the applicant and those legal practitioners I have undertaken at length was unavoidable.

In short, in my assessment of the evidence adduced by the Crown and the evidence of Mr Ashby and Ms Climo in cross-examination (an account corroborated in very significant respects by the conference notes) there is nothing that reflects adversely upon their representation of the applicant (or Mr Ozen’s representation of him as senior counsel), and nothing which reflects adversely upon their joint commitment to represent his best interests as the accused facing extremely serious charges in a part heard trial.

In coming to that concluded view, I have given full weight to Ms Climo’s and Mr Ashby’s evidence as to their dealings with the applicant. I have placed very considerable weight on their evidence not only because they are Officers of the Court but because, despite rigorous and lengthy cross-examination of them by Mr Conolly, their credit was undiminished. They were both impressive witnesses.

As I have earlier indicated, where the evidence of Ms Climo and Mr Ashby, as corroborated by the conference notes, is in conflict with the evidence given by the applicant, I prefer their evidence. I am fortified in taking that approach by what I am satisfied were deliberate attempts by the applicant in his evidence before me to attribute blame to his lawyers where there was no basis to do so. I have also taken into account what I regard as his unsubstantiated allegations in the conference note of 5 June 2019 that his lawyers were “blackmailing” him and his public denouncement of them as bullies and people who had issued threats to him in his email to the trial judge of 10 June 2019.

On other occasions in the course of the applicant’s evidence, the applicant answered questions asked of him which I consider were deliberately designed to obscure what I am satisfied he well knows was the real and operating cause of the withdrawal of his legal team, namely his stubborn refusal to accept their advice concerning the Schedule of Witnesses and his assumption of an attitude of brinkmanship in his dealings with them, at least from 31 May 2019.

Although the relationship between the applicant and his lawyers had been fractious on occasions prior to the last week in May 2019, including occasions where the applicant expressed himself both intemperately and in such a way as to strongly suggest either an outright refusal to accept Ms Climo’s advice or to listen to her advice, on 21 May 2019 he did sign a letter of instructions (doubtless prepared by his lawyers at that time because of the difficulty they had encountered obtaining instructions from him) that made plain the rules of engagement with his lawyers and their respective rights, obligations and responsibilities under an arrangement by which he was bound if the lawyer/client relationship was to be sustainable. I have already set out those instructions in full.

By 27 May 2019, however, the lawyer/client relationship had deteriorated such that by 31 May 2019 (the date of the conference appointed by Ms Climo to seek the applicant's final instructions on the Schedule of Witnesses that had been largely completed by 10 May 2019) the applicant resolved to make what I am satisfied was a wholly unreasonable demand that he be provided with a “written advice” from them as to why some witnesses were, and others not, required for cross-examination, failing which he instructed that all 155 witnesses should be called to give oral evidence and cross-examined. I note that the conference on 31 May 2019 commenced with that demand.

I reject Mr Conolly’s submission that a request for written advice was a reasonable request, and one with which his lawyers ought to have complied.

It is appropriate at this time that I make some observations as to the circumstances in which, on 31 May 2019 and for the first time, the applicant was making a demand of his lawyers for the provision of a written advice (in effect an advice on evidence) pre-conditional to his providing instructions as to the completion of the Schedule of Witnesses.

It appeared to all those present at the conference in the AVL suite on 31 May 2019 (as reflected in the conference notes) that the applicant was reading his demand for written advice from a document, and that it was prepared in legal language. The document was not seen by his lawyers; neither was it produced or tendered in these proceedings. In those circumstances, and despite having the strongest of suspicions that there was such a document and that it was prepared by either Ms Ramsay (very likely with Mr Conolly’s knowledge and approval) and provided to the applicant at one of their legal visits with the applicant at the prison between 27 May 2019 and 31 May 2019, and, further, despite having considerable doubt that the applicant was truthful when he claimed either there was no note or he had no recall of a note, it is not necessary, for the purposes of this application, to make a concluded finding as to that question.

Neither is it necessary to make a finding that either Mr Conolly or Ms Ramsay were in fact involving themselves in the applicant's trial whilst Legal Aid NSW was retained to act, despite it being clear from the conference notes that the applicant told his lawyers that Mr Conolly was doing just that, and despite it being clear from the applicant's evidence that at the time of the grant of legal aid he knew and agreed that "Legal Aid will only be in [the trial] if [Mr Conolly] is out of the case” (paragraph 81 of the applicant's affidavit of 29 July 2019). Neither is it necessary for me to make a finding as to whether, in the exchange of correspondence between Mr Conolly and Mr Ashby on 31 May 2019, there was substance in Mr Ashby’s contention that it was improper for Mr Conolly to seek to continue to involve himself in the applicant’s trial having regard to Rule 33 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.

It is sufficient for present purposes that the applicant made what I am satisfied was an unreasonable demand for a written advice on 31 May 2019, and that he persisted with that demand throughout the course of that conference, a position from which he has not resiled. It was of course at the conference on 31 May 2019 that the applicant expressed, in the strongest terms, not only a loss of confidence in senior counsel as reflected in the exchange extracted below, but confirmed that “[Mr Conolly] is still working on the case – seeking further expert evidence”.

Although Mr Ozen continued with the conference on 31 May 2019 (although not making any sensible headway in pursuit of instructions about the Schedule of Witnesses), and although on 5 June 2019 Mr Ashby sought confirmation that the applicant wanted Legal Aid to continue to act, the attitude of brinkmanship on the part of the applicant to which I have earlier referred came into play as the following extracts from the conference notes of 31 May 2019 bear out:

I accept, without reservation, Mr Ashby’s evidence that it was the applicant's conduct in the conference of 31 May 2019 that caused him to take the unprecedented step of convening a conference on 5 June 2019, without counsel, in order to determine whether the position the applicant had taken in conference with counsel the previous week was to continue and, depending upon the position of the applicant, whether Mr Ashby needed to take advice (and encourage counsel to take advice) as to whether, consistently with their professional and ethical obligations, they could continue to act for the applicant at his trial. It was in that conference that the following was said:

I do not regard it as to the point that the applicant did not at any time formally withdraw his instructions or terminate the lawyer/client relationship with the Legal Aid team. I am satisfied that his constructive failure in the conference of 31 May 2019 and then on 7 June 2019 to accept, in an appropriate, measured and unqualified way, the advice of his lawyers, as distinct from what I consider to be a contingent acceptance of advice (namely under protest) and a willingness to continue to retain Legal Aid NSW, but only “at this stage”, was an attitude taken by him to assert his control over his lawyers and one of the precipitating causes of them withdrawing. The following extracts of the conference notes of 7 June 2019 leave me in no doubt that the lawyer/client relationship was at an end:

Having regard to all of the evidence on the application, including the applicant's evidence under cross-examination, I am satisfied that it was that same attitude of brinkmanship which motivated the applicant to send the email to the presiding judge in which he openly accused his lawyers of bullying and threatening behaviour (neither allegation being in any way substantiated by the evidence and in fact wholly contradicted by the conference notes). That attitude is also reflected in his refusal to discuss the email with his lawyers when they raised it with him in conference on 14 June 2019.

It is not to the point that the applicant may have been ignorant of the fallout from his decision to send the email and his stubborn refusal to accept the advice of his lawyers. Neither is it to the point that he might later have regretted his behaviour. What is to the point is that the lawyer/client relationship had by 14 June 2019, at the latest, become wholly untenable by reason of the attitude taken by the applicant to the team of lawyers who had by that date, and over the 12 weeks preceding that date, diligently worked in his interests (and at public expense) consistent with their professional and ethical obligations and with what I regard as considerable forbearance on their part given what had become the increasingly gratuitously rude and unreasonable conduct of the applicant.

I am of the concluded view that the applicant is the author of his own misfortune and, for that reason, the relief he seeks is refused.

The Court orders: