R v Bui & Bui [2003] ACTSC 102

Supreme Court of the ACT|2003-11-27|Before: Crispin J

1. This is an application by the Crown to vacate the hearing date of the trial of the two accused, which is due to commence on 1 December next. Each accused is charged that on 18 September 2002 at Canberra in the Australian Capital Territory, he possessed a traffickable quantity of a prohibited substance, namely heroin, for the purpose of sale or supply to any person; and further that he possessed a traffickable quantity of a prohibited substance, namely heroin.

2. They were committed for trial on 26 May 2003, an indictment was filed in this court on 25 June 2003 and the matter was set down for trial on 11 September 2003.

3. It now appears that a crucial witness, Sergeant Robert Nelson, is unavailable to give evidence at the trial. Sergeant Nelson was, for an extensive period, stationed in Cyprus and at the time the case was set down for trial it was apparently not realised that he was intending to go on leave in November and December of this year. It now appears that he is on holidays in Europe with his family and it has not been possible to contact him despite the fact that he has apparently taken a mobile phone with him.

4. Ms Whitbread, who appears for the Crown, has taken me through surveillance running sheets in order to demonstrate the potential importance of his evidence and has informed me that the Crown regards his evidence as so crucial that if he were to be unavailable for the trial it may well be that the prosecution would not proceed. Accordingly, she submits that it is in the public interest that an adjournment be granted so that the Crown will be able to present its case in the fullest and fairest manner possible.

5. Ms Whitbread explained that an officer of the Australian Federal Police sent an email to potential witnesses on 28 September 2003 but that it appeared that the officer had not appreciated that Sergeant Nelson was in Cyprus. On 14 November 2003, the Office of the Director of Public Prosecutions contacted the Australian Federal Police in an endeavour to ensure that all witnesses had been contacted and would be available. That phone call apparently elicited further enquiries and it was not only discovered that Sergeant Nelson was in Cyprus but that he was due to go on leave that day. Regrettably, the Office of the Director of Public Prosecutions was not informed and on 21 November 2003 made a further phone call to ascertain the position. As I have mentioned, it now appears that Sergeant Nelson cannot be contacted.

6. In support of the application for an adjournment, Ms Whitbread points out that this was the first application of this kind by the Crown, that the sole reason was the unavailability of the relevant witness, that a long adjournment was not sought, that the unavailability of the witness was due to a purely administrative error, that the offences with which these accused are charged are serious offences, and that the evidence of this witness is crucial to the Crown case. Accordingly she submits that there would be a serious risk of injustice to the Crown should an adjournment be denied.

7. It is, of course, obvious that an application of this kind must be considered in the context of the public interest in ensuring the fair and efficient trial of alleged offenders.

8. However, in opposing the application, Mr Everson submits that the application "makes a joke" of the case management system in this court. It has been necessary only because of a substantial failure on the part of the Crown to comply with the case management system which was adopted last year in order to ensure, among other things, that applications for adjournment are not necessary. A questionnaire has to be completed by both parties and, question 24 specifically requires the Crown to state any limitations on the availability of prosecution witnesses in the case. In the present case, this question was apparently not answered. Furthermore, as Mr Everson points out, there is no evidence to confirm that the police have even now done everything they can to contact Sergeant Nelson.

9. The principles governing applications of this kind are relatively clear.

Ms Whitbread has referred me to a number of authorities, namely Myers v Myers [1969] WAR 19, McColl v Lehmann [1987] VicRp 46; [1987] VR 503, and R v Udechuku [1982] WAR 21. The general principles may be shortly stated. The public has an interest in the conduct of a fair trial in which both parties have due opportunity to be heard. Consequently, an adjournment should normally be granted where the failure to grant it would result in one party suffering substantial prejudice which might create a risk of injustice. It is essential to a fair trial that both parties are able to fully present their cases within the limits of the relevant legal principles.

10. In Udechuku Jones J suggested, at pages 31-32, that in such a case "The matter could be put to the test by supposing that the application had been made, not by the Crown, but by the accused". His Honour then asked rhetorically, "Can anyone doubt that the application could have been granted?" It is, of course, a truism that cases must be conducted impartially. However, with due respect to his Honour, I do not accept that it follows that in all cases it would be appropriate to treat an application for an adjournment by the Crown in precisely the same way as a comparable application by the accused might be treated. The consequences may be quite different. For example, if bail has been refused, it may be totally inappropriate to leave a young single parent in custody and her children in foster care for extensive periods of time as a result of an adjournment brought about by a failure of the Crown to take reasonable care to ensure the availability of witnesses, even though an application made by such a person might be readily granted.

11. Nonetheless, I accept the general principle referred to in that case, that where there is a real risk of injustice to one side, an adjournment should be granted unless the prejudice and/or risk of injustice thereby created to the other side is sufficient to counter balance the risk of injustice to the party seeking the adjournment.

12. In the present case, it has been suggested that prejudice will occur in a number of ways. First and most obviously, the charges will continue to hang over their heads. This is a significant matter. In Udechuku Wallace J observed that a respondent cannot be held in jeopardy indefinitely. I agree with that comment and add that the principle applies, irrespective of whether the person is on bail.

13. Second, at least one of the accused has apparently been refused bail on another charge; the refusal of bail being substantially attributable to the application of section 9A of the Bail Act. That section provides that where a person has been charged with one offence, which is a serious offence as defined by the Bail Act, and is then charged with a further offence whilst on bail, bail must not be granted in respect of the second offence save in special or exceptional circumstances. It is submitted that if I were to refuse the application and the matter were to proceed to trial, and be resolved in the accused's favour, that would undoubtedly create a situation in which special circumstances could be readily established and the prospects of obtaining bail enhanced.

14. Third, it was put that these accused have already incurred substantial legal costs since counsel have been briefed for the period of their trial which has been due to run for a week and it will not be possible to wholly recover those costs. I accept that it may be possible to avoid incurring costs for the whole week, but have no doubt there will be some unavoidable expense, and in criminal cases it is not possible to make an order that the Crown pay the costs of an adjournment.

15. Ms Whitbread, in reply, submits that, so far as the question of bail is concerned, the Magistrates Court would no doubt take into account the fact that this trial had been adjourned on the application of the Crown and might well regard that as constituting special and exceptional circumstances. In my opinion, that really is a matter for the magistrate and it would be inappropriate for me to express an opinion about the prospects of bail being granted at this stage.

16. I accept Mr Everson's criticisms of the Crown's conduct of the proceedings. However, as he fairly conceded, in all the circumstances the application is a finely balanced one but it seems to me that having regard to the serious nature of the charges, and the crucial nature of the witness' evidence to the Crown case, the balance is tipped in favour of granting the adjournment.

17. Accordingly, I order that the hearing date be vacated. Having made that order, I should say that I think that there are grounds for suggesting that the further trial of this matter should be given such expedition as is possible. I note that Sergeant Nelson will be back on 11 February 2004. I direct the matter be remitted to the Registrar with a view to the allocation of an early trial date in the new year.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Ruling herein of his Honour, Justice Crispin.

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the accused (Trong Ruyen Bui): Mr T Sharman

Counsel for the accused (Van Gieng Bui): Mr C Everson

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

Parties