R v Djerke [2008] ACTSC 41

3. That application came on for hearing before Connolly J on 3 July 2006. The Court Procedures Rules had commenced on 1 July 2006 and applied to existing proceedings. The application was adjourned for various reasons, part heard, and on 10 October 2006 Connolly J delivered an ex tempore judgment in favour of the Crown's application ordering that the statement [of Constable Chin] and all photographic identification evidence of Mr Lubach be admissible pursuant to s 65 of the Evidence Act 1971 (R v Djerke [2006] ACTSC 104).

4. The accused was arraigned on 31 January 2007 and pleaded not guilty to all four counts in the indictment.

5. The trial date fixed for 2 April 2007 was vacated on 21 March 2007. The matter was returned to a pre-arraignment conference list for the purpose of obtaining a new trial date and it was noted that a new indictment was required due to an error. Subsequently, a new trial date was fixed for 20 August 2007. The accused was arraigned again on 8 May 2007 and pleaded not guilty to all four counts. Due to administrative error, the trial was listed before the Chief Justice rather than Connolly J and vacated, the matter being adjourned to the pre-arraignment conference list for the purpose of setting a new trial date.

6. On 25 September 2007 Connolly J died. At a pre-arraignment conference on 8 November 2007 the trial was listed for 16 June 2008. The trial has been allocated to me for hearing.

7. On 27 March 2008 the accused served a pre-trial application in substance seeking to establish that the orders of Connolly J are not applicable for the purposes of the forthcoming trial and that any application should be reheard before me. I heard argument on that application on 1 April 2008. I indicated that, in my opinion, a pre-trial ruling of the kind made by Connolly J could only be made after arraignment. I did not make any formal order and said that I would give reasons later. I said that I had not formed a view as to the correct method of proceeding thereafter.

8. My reasons for forming the opinion I expressed are straightforward. The orders that were made by Connolly J depended upon application of the Evidence Act 1971. In my opinion, such an order can only be made at, and for the purposes of, a trial. A trial only begins after arraignment - Lane v R (1996) 66 FCR 144; R v Viet Dung Tran [2002] ACTSC 56; (2002) 167 FLR 345, (2002) 130 A Crim R 385, at [43]. Counsel for the prosecution was unable to point to any authority to the contrary of this. Nothing in the Court Procedures Rules alters that fundamental principle.

9. Nonetheless, the orders were made by a superior court after a hearing and there has been no appeal. On one view, having in mind the history of the matter, the fact that arraignment had not taken place was a technicality which had little to do with the proper disposition of the pre-trial application. The accused had acquiesced in the procedure.

10. The authorities relating to the effect to be given at a later trial to rulings in connection with earlier trials that are aborted or set aside for one reason or another were considered at some length by Johnson J in the New South Wales Supreme Court in R (Cth) v Petroulias (No 1) [2006] NSWSC 788, particularly at [21]-[54]. I will not repeat that analysis. Although the present situation is different in detail from those considered in the authorities discussed by Johnson J, in my opinion, it follows from them that the ruling that was made by Connolly J cannot be regarded as made in the trial due to commence in June next. That trial cannot be regarded as an adjournment of a trial or proceeding that was before Connolly J. It follows that the prosecution must move again in this proceeding for such an order. There is no need for any formal order to be made to give effect to this ruling. The trial will simply proceed.

11. The exigencies of the situation are such that any such application should be made at the commencement of the trial prior to the jury being empanelled. The extent to which the trial judge might be bound by estoppels arising out of the decision of Connolly J and, even if not, the extent to which deference should be paid to that decision can be considered, if necessary, in the course of that application. The parties should consult with a view to agreeing a set of directions to enable any such pre-trial application to be made on proper notice and prepared in advance so far as is possible. Such directions can be made in chambers.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gyles.

Solicitor for the prosecution: Director of Public Prosecutions for the Australian Capital Territory