Abdallah v R [2015] NSWCCA 233 (28 August 2015)

Last Updated: 28 August 2015

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Abdallah v R
Medium Neutral Citation:	[2015] NSWCCA 233
Hearing Date(s):	On the papers
Decision Date:	28 August 2015
Before:	Beazley P; R A Hulme J; Bellew J
Decision:	Matter adjourned to the Registrar’s list on 10 September 2015 for the fixing of a hearing date.
Catchwords:	PROCEDURE – application to adjourn hearing date of appeal – public interest and proper administration of justice necessitate efficient use of the court system – exceptional circumstances generally required for late adjournment – in view of public interest application granted without exceptional circumstances established
Category:	Procedural and other rulings
Parties:	Tarek Abdallah (Appellant) Regina (Respondent)
Representation:	Counsel: G Bashir SC (Appellant) M Cinque (Respondent) Solicitors: AHA Taylor Lawyers (Appellant) Solicitor for Public Prosecutions
File Number(s):	2012/8057
Decision under appeal:
Court or Tribunal:	Supreme Court
Date of Decision:	20 June 2014
Before:	Campbell J
File Number(s):	2012/8057

JUDGMENT

1. THE COURT: This matter was set down for today, Friday 28 August 2015, for the hearing of an appeal against conviction and of an application for leave to appeal against sentence for an offence of murder. That hearing date was set on 21 May 2015. It was estimated by the parties that the hearing would occupy a full day.
2. On Wednesday 26 August 2015 at 9:27 am, the Registrar, Court of Criminal Appeal, received an email from senior counsel briefed to appear for the appellant requesting that the matter be adjourned. The reasons given, in summary, were:
   • (1) The appellant’s application that the Crown submissions be served more than 7 working days before the hearing date, to permit time for the preparation of the appeal, including preparing submissions in reply, was refused by the Registrar.
   • (2) Senior counsel is presently briefed to represent the interests of the Johnson family at the inquest into the deaths of the persons killed in what is known as the Lindt Café Siege carried out by Man Haron Monis. Whilst senior counsel is assisted by junior counsel in that matter, junior counsel is presently briefed in another inquiry interstate and is not in attendance at the inquest this week. It appears the matter in respect of which junior counsel is briefed ‘ran over’, thus making her unavailable in the second half of this week, including 28 August 2015.
   • (3) This segment of the inquest was scheduled to take 2 weeks and was to finish prior to Friday 28 August 2015, although time was reserved in the week following should the matter not finish in the allocated time.
   • (4) Issues had been raised at the inquest in relation to the grant of bail to Man Haron Monis (the bail issue). The bail issue is of particular concern to the Johnson family and senior counsel is required to be present when the bail issue is being dealt with.
   • (5) Witnesses originally scheduled to give evidence at the inquest this week were not concerned with the bail issue. That would have enabled senior counsel to have spent time on the preparation of the appeal listed before this Court on 28 August. However, matters relating to the bail issue have occupied more time than anticipated. In addition, much of the evidence in the inquest was served late, necessitating work in time that senior counsel would otherwise have spent in preparation for the appeal set down for hearing in this Court.
   • (6) The schedule of witnesses to give evidence at the inquest on Friday 28 August was only served shortly prior to 1:50 pm on 26 August. Several of those witnesses are persons whom senior counsel has been instructed to cross examine. Senior counsel therefore is required to be present at the inquest on that day and is unable to appear on the appeal in this Court.
   • (7) It is too late for different counsel to be briefed in readiness for the hearing of the appeal on 28 August.
3. The Crown opposed the adjournment.
4. Senior counsel’s first reason for the adjournment application related to the service of the Crown submissions. The direction made by the Registrar was that the submissions be served by 19 August 2015, 9 days prior to the hearing or 7 working days (including the day of service) beforehand.
5. The date for the filing and service of the Crown’s written submissions was extended to 21 August 2015, due to the Crown and the Court having a differently paginated version of the trial transcript from that of the appellant’s counsel. The Registrar acceded to the appellant’s solicitor’s request that the Court use the version upon which the appellant’s submissions had been prepared. This necessitated the Crown revising the transcript references in its written submissions. No objection was made by the appellant to a 2 day extension of time for the Crown to file its submissions.
6. The Crown’s submissions were served on the afternoon of Friday 21 August.
7. This Court finds itself in the invidious position, having, in May, listed an appeal for a full day’s hearing, of effectively being given no option but to adjourn the hearing so that counsel can attend to a matter in another court. Court time is an expensive commodity. Judicial time is valuable. The rights of parties to have matters heard as expeditiously as possible in the Court are a matter of public interest and significant judicial concern. Having regard to future listings in the Court, a new hearing date for this matter is unlikely to be before next February. The Court is also mindful of the potential impact upon the family and friends of the deceased in this matter of further delay in the finalisation of the proceedings.
8. Late adjournment applications, such as was made here, adversely affect all these matters in a way that is significant: judicial statements, including those made extra-curially, have emphasised the public importance of the efficient use of the court system and it is not necessary to repeat them. It is well known that judges spend time in preparation for a hearing, often days beforehand. Such time is inevitably wasted if matters do not proceed on the allocated date. Further, it is not possible to place another matter in the list at such short notice, a matter which is also well known to those who practice in this Court.
9. Given the pressures on the judicial system, it is incumbent, for the proper administration of justice, for all who engage in it, to ensure that it operates as efficiently as possible. This requires practitioners to make a keen assessment at an early point as to whether they are able to appear in matters on the allocated date. The outcome, except in exceptional circumstances, ought favour the court and not the individual practitioner. In this case, although exceptional circumstances have not been established and the Court is firmly of the view that alternate counsel should have been engaged at an early point so as to enable the appeal to be heard today, the Court, most reluctantly, has granted an adjournment, so that, in the public interest, the inquest is not disrupted.
10. Accordingly, the Court makes the following order:

Matter adjourned to the Registrar’s list on 10 September 2015 for the fixing of a hearing date.

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