R v Ali [2017] ACTSC 366

APPLICATION - Jury Trial - Application to discharge the jury - charges of committing acts of indecency without consent and sexual intercourse without consent - no appearance by the accused - whether trial could continue in absence of the accused - the accused voluntarily absented himself - consideration of interests of complainant - right to be present may be waived by an accused person

Evidence (Miscellaneous Provisions) Act 1991 (ACT)

Williams v The Queen [2012] NSWCCA 286; 229 A Crim R 67

1. The trial of the accused, Haider Ali, on charges of committing acts of indecency without consent and sexual intercourse without consent commenced on Monday 6 November 2017. The accused was represented by Ms Warwick of counsel and an instructing solicitor.

2. The evidence-in-chief of the complainant had been pre-recorded, as permitted by the Evidence (Miscellaneous Provisions) Act 1991 (ACT). That evidence was presented to the jury on 6 November 2017. The following day, the jury heard evidence from eight witnesses, including a number of complaint witnesses.

3. The trial was due to recommence at 10 am on Wednesday 8 November 2017. Only one police witness remained to be called by the Crown. The accused did not appear at 10 am and the recommencement of the trial was postponed until 11 am. At that time the informant gave evidence that information provided by Customs established that a person of the accused's name and date of birth had boarded a flight from Sydney to Dubai that morning. The Crown observed that the flight had not yet reached Dubai, and I issued a warrant for the arrest of the accused in the hope that he could be intercepted in Dubai and returned to Australia. Unfortunately, arrangements could not be made in the limited time available, and the accused was not arrested in Dubai. He subsequently boarded another flight from Dubai to Pakistan. To my knowledge, he has not communicated with the Court in an attempt to explain his absence since.

4. On Thursday 9 November 2017, Ms Warwick asked that I discharge the jury. I declined to do so, and indicated that I would deliver reasons at a later date. These are those reasons.

5. For the purpose of her application that I discharge the jury, Ms Warwick called evidence from a close friend of the accused, Mr Majid Khan. Mr Khan has known the accused since Mr Khan arrived in Australia as a student in 2005. At one time they shared a residence in Melbourne before the accused moved to the ACT for work. Subsequently, they continued to have frequent contact. Mr Khan came to Canberra on Sunday 5 November 2017 to provide moral support to the accused during his trial.

6. Mr Khan testified that the accused's father was very ill in Pakistan, and with limited support from the accused's siblings. He said that the accused's father was nearly 90 years old, and his mother about 15 years younger. He said that on Sunday 5 November 2017 the accused had shown him a video which had shown that the accused's father was very ill and very weak. Mr Khan speculated that the accused may have returned to Pakistan because of his father's declining health.

7. In cross-examination it emerged that Mr Khan had been with the accused until about 11 pm on Tuesday 6 November 2017, but the accused said nothing to him to indicate that he was planning on leaving the country. In fact, when they parted the accused said to Mr Khan that he was going home to prepare for giving evidence the next day. At the time that he gave evidence, Mr Khan had not heard anything from the accused after they parted on the Tuesday night, despite the fact that by the time Mr Khan gave evidence the accused had landed in Dubai and would have had ample opportunity to contact Mr Khan if he wanted to. Mr Khan had tried calling the accused but the accused's phone was apparently switched off.

8. The accused was represented by counsel and an instructing solicitor. He made no contact with them before he left Australia to provide some legitimate explanation for his failure to appear before the Court on 8 November 2017. He also made no contact with them after he arrived in Dubai. As far as I am aware, he has not contacted them at all since the afternoon of 7 November 2017. Similarly, the accused made no contact with his close friend, Mr Khan, to explain his hurried departure from Australia. He also made no contact with the Court Registry to explain his conduct.

9. In the circumstances, I was satisfied that the accused had fled Australia, and that he did so in order to frustrate the trial in which he was then participating.

10. In determining to continue with the trial in the absence of the accused I had regard to the principles stated by R A Hulme J, with whom Basten JA agreed, in Williams v The Queen [2012] NSWCCA 286; 229 A Crim R 67, at [92] to [95]:

92. In Jamal v R [(2012) [2012] NSWCCA 198; 223 A Crim R 585 at [35], Hidden J referred to what he described as "longstanding authority affirming that, generally speaking, an accused should be present at every stage of a criminal trial". His Honour went on to refer to some cases in which there has been an exception to that general proposition, one of which was R v McHardie & Danielson [1983] 2 NSWLR 733; (1983) 10 A Crim R 51. In that case there was an issue as to whether the trial judge had erred in failing to discharge the jury when one of the accused (McHardie), having escaped from prison, did not appear. The Court found (at 742; 60) that absconding on bail during a trial amounts to a waiver by the accused of his right to be present at the trial, and similarly so in the case of an accused who escapes from lawful custody.

93. The Court looked at the following matters in the course of considering whether there was error in the exercise of the discretion by the trial judge in permitting the trial of McHardie to continue: most of the Crown case against McHardie had been given by the time of his escape; it was a very cogent case; a great deal of time of the Court, jury, and witnesses, had been expended up to that stage. Another factor was that the co-offender Danielson who was jointly charged desired the trial to proceed. Their Honours concluded in relation to this ground (at 745; 63):

Notwithstanding the general principle that at an indictable offence trial before a judge and jury the accused's presence is normally a prerequisite to a fair trial, his failure to appear after the trial has started, through his escape from lawful custody, can correctly be described and found to be a waiver of his right to be present at his trial; that the trial judge has a discretion as to whether he should continue his trial, or discharge the jury.

...

We hold that no error has been shown in the exercise of the judge's discretion to continue the trial, and that on an overall view of the trial, no miscarriage of justice has been shown in the matter now being considered.

94. In R v Jones [1998] SASC 7021; (1998) 72 SASR 281 at 294-295; [1998] SASC 7021; 104 A Crim R 399 at 412 it was held (at 284-295) that a Court may proceed with a trial in the absence of the accused in circumstances where the accused has waived a right to be present; such a waiver could be constituted by an escape from custody or breach of bail or where without good excuse or explanation the accused absents him or herself from the proceedings. The rationale for this principle was said (at 295; 413) to be that otherwise an accused who was on bail and who believed at some time during the trial that his or her prospects of acquittal were remote could absent himself or herself and thereby force a new trial. If that was the principle it would be necessary to revoke the bail of all accused persons at the outset of their trial which would be an unfortunate and unfair consequence.

95. Later in Jones it was said that the first matter which must be considered in the exercise of the discretion is whether the accused has voluntarily absented himself or herself and whether such absence indicates a waiver of the right to be present during the whole of the proceedings. The next matter to be ascertained is whether counsel would remain during the continuation of the trial (at 296; 414). Other matters to consider are the strength and nature of the Crown case, the defence insofar as it has been disclosed, the length of time over which the case has run and will run, the prejudice that the accused might suffer, the risk of a miscarriage of justice, the inconvenience to the victims and the witnesses and the impact upon the administration of justice (at 297; 414). A further matter "a trial judge must always consider" is the fundamental right of an accused to be present at his or her trial and that the discretion to continue at the trial should only ever be exercised sparingly (at 297; 414).

11. In the present case the accused waited until all of the significant Crown witnesses had given their evidence before he absconded. As Ms Warwick conceded, the Crown case was "relatively strong", with immediate complaint by the complainant to a number of witnesses. There was also independent evidence refuting a central plank of the defence case, that the complainant had entered a bedroom occupied by the accused on the evening in question and got into bed with him, rather than him entering her bedroom uninvited. In my opinion it had become clear by the afternoon of 7 November 2017 that the defence case was untenable.

12. I was satisfied that the accused voluntarily absented himself from his trial, and that he did so in order to frustrate the trial process. His failure to communicate any legitimate reason for his absence to the Court, his lawyer or his friend makes this the only rational inference to draw from his actions.

13. Ms Warwick submitted that the complainant would suffer no inconvenience if the trial was aborted, as she had given her evidence, and it was video recorded and able to be used in any later trial. In my opinion, this takes too narrow a view of the consideration of the interests of the complainant. It will frequently be difficult for complainants in sexual assault proceedings to move on with their life knowing that an accused is yet to be tried, not least because there is always a possibility that the complainant may be required to give further evidence of a later trial. Achieving finality is important for complainants, and indeed for all the witnesses.

14. I was satisfied that the risk of any miscarriage of justice by continuing with the trial was slight, and in any event could be dealt with by the available appeal processes should the accused return to Australia and provide a legitimate explanation for his actions, as unlikely as that may seem. I was, of course, acutely aware of the right of an accused person to be present throughout his or her trial, and to be represented by a lawyer. These rights, however, may be waived by an accused. By absconding on bail, and fleeing the country in the middle of his trial, I was satisfied that the accused had consciously waived his right to be present during the remainder of his trial.

15. For these reasons I refused the application to discharge the jury, and continued with the trial.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

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27 May 2021 Replace "IB" with "Ali" Paragraph: Title

27 May 2021 Replace "IB" with "Haider Ali" Paragraph: [1]