R v JONES No. SCGRG-98-239 Judgment No. S7021 [1998] SASC 7021

Supreme Court of SA|1998-12-23|Before: Wicks JJ, Lander J, Prior J

(Court of Criminal Appeal: Prior, Lander and Wicks JJ)

Court Of Criminal Appeal: Prior, Lander and Wicks JJ

LANDER J. The appellant appeals against a conviction entered after a trial by Judge and jury in the District Court.

The appellant was charged jointly with Jason Matthew Quinn with wounding with intent to do grievous bodily harm and assault occasioning actual bodily harm.

Mr Quinn pleaded guilty to the second charge and a nolle prosequi was entered against him in relation to the first charge. The appellant was arraigned on the first count to which he pleaded not guilty and the Director Of Public Prosecutions entered a nolle prosequi in relation to the second count.

Thus the trial proceeded upon the first count only and in relation to the appellant only.

The appellant was granted a bail agreement before trial and remained on bail during the hearing of a voir dire application which preceded the trial.

The trial commenced on 22 June 1998 more than a month after the voir dire hearing. A jury was empanelled, the appellant was arraigned and he pleaded not guilty. The Crown opened and called evidence from the victim.

On 23 June 1998, the accused did not appear. Counsel for the accused could give no explanation for her client's non attendance. His Honour adjourned until that afternoon when the learned Trial Judge ordered the issue of a bench warrant and further adjourned the trial until the next day.

On the next day there was still no appearance of the accused and the bench warrant was not returned. Counsel for the accused still had no instruction from the appellant. Counsel for the accused applied for an adjournment but that application was opposed by the Director Of Public Prosecutions. Counsel argued that it would be very difficult to continue in the absence of the accused, he being the only witness who it was intended would be called in the defence. Counsel said: [TX 67]

"I would suggest that if the trial were to proceed, that my client would be prejudiced and we would risk having a verdict from the jury that might be unsafe or unsatisfactory."

The learned Trial Judge ruled in the exercise of his discretion that the trial should continue in the absence of the accused. Counsel for the accused then sought an adjournment until the afternoon to get advice in relation to her position. His Honour acceded to that request. The matter resumed that afternoon and the learned Trial Judge advised the jury that the accused was not present in court. He also told the jury that there was a principle of law that there was nothing more fundamental to the fair administration of justice than the right of an accused person to be present if he or she desires it during the whole of the hearing. However, he said that he had reached the conclusion that the accused had waived his right to be present during the course of the trial and in the exercise of his discretion he would proceed with the trial notwithstanding the absence of the appellant.

"Having said that, I must direct you that you must not draw any adverse inference against the accused merely by the circumstances that he has waived his right to be present. You must remember, ladies and gentlemen, that there may be any number of innocent explanations for his absence or his failure to attend. You should not speculate as to the reason why he has waived his right to be present, and so we will continue with the trial." [TX 76]

"I have an application to make. I seek your leave to withdraw from this matter, and for my instructing solicitor to also withdraw, because in the absence of the accused I am not able to take further instructions."

Leave was given to counsel and her instructing solicitor to withdraw.

The trial proceeded that day, the next day and concluded on 26 June 1998. Counsel for the Director of Public Prosecutions did not address the jury nor, of course, did anyone on behalf of the appellant. The learned Trial Judge charged the jury who ultimately returned a verdict of guilty.

Eventually the appellant was arrested on the bench warrant which the learned Trial Judge had ordered to be issued on 23 June 1998, and he was brought before the learned Trial Judge on 8 September 1998. At that stage the allocutus was given to the appellant and the appellant was remanded until 8 October 1998 for submissions on penalty.

Eventually, on 19 October 1998, the appellant, who was of course present, was sentenced to four years and six months imprisonment and a non parole period of two years and three months was fixed.

The charge arose out of events on 27 March 1997 at Marinelli's Tavern on Port Road, Allenby Gardens. The alleged victim was Vincenzo Luppino who had gone to that tavern in the afternoon of 27 March. At about 6:30pm he was seated at the bar drinking with Jane Guyatt.

The appellant had arrived about half an hour earlier with Mr Quinn and a juvenile by the name of Wheeler.

There were a number of persons in the bar who were regular drinkers at the tavern. Mr Luppino and Ms Guyatt were well known.

The Crown case was that the accused, who had previously been standing near the jukebox with Messrs Quinn and Wheeler, walked up to Mr Luppino, and by bringing his full beer glass from above his head in a downward motion, forcefully struck Mr Luppino on the forehead and nose and down his face. Beer and blood and glass were thrown around the tavern and Mr Luppino staggered from his bar stool and fell to the ground. The Crown case was that thereafter Messrs Wheeler and Quinn set upon Mr Luppino by kicking him in the body and face.

The Crown case was that "Mr Luppino was subject to a merciless, unprovoked violent attack by the accused followed by a beating while he lay there helpless, screaming on the ground."

The owner of the tavern persuaded the three assailants to leave the premises. However, they returned in order to attack the victim once again. The victim by this stage had entered a toilet clutching a towel to his face. The three people who assaulted him, who on the Crown case were the accused, Mr Wheeler and Mr Quinn, tried to enter the toilet where Mr Luppino was. Again, attempts were made to persuade them to leave. Someone mentioned that the Police had been called and the three then ran away.

The accused was seen by Police walking along Thomas Street, a side street on the other side of Port Road, but near the Tavern. The Police followed him until they saw him run into a front yard and attempt to get over a large gate. Constable Snowden caught him as he was trying to get over the gate. Constable Snowden's evidence was that the accused was wearing blue jeans, a black T-shirt and was covered in blood. Snowden ordered him to lie down on the ground and told him he was being detained on suspicion of a serious assault. The Crown case was that the accused replied; "Yeah man, I fucked up, I have fucked up bad."

The accused on the Crown case then became violent, aggressive and abusive.

Mr Nikias, who had been in the tavern having dinner drove past the place where the Police had apprehended the appellant and identified the appellant to the Police as one of the assailants.

The appellant was taken to the Port Adelaide Police Station and that night took part in a formal record of interview which was recorded on video. Constable Snowden, the arresting Police Officer, formed the view that the appellant was moderately affected by alcohol. That was apparently also the opinion of persons who had served him in the tavern. On the Crown case there was no suggestion that the accused was very drunk.

The appellant made no admissions on the record of interview. He told the Police Officer that he simply walked into the tavern, had a beer and he did not know what happened after that but people just started "Going off" for no apparent reason. He was unable to explain where the blood which covered his clothes had come from. He said that all of a sudden a fight happened.

During the trial the learned Trial Judge allowed evidence to be admitted of photographs which had been taken of the appellant and submitted to witnesses for the purpose of identifying the appellant.

The admission of that evidence was objected to prior to the commencement of the trial. His Honour held a voir dire examination in respect of the claim that he should exclude the photographic identification of the appellant. The ground of the application to exclude the evidence was that the identification of the appellant by photograph was not necessarily unavoidable and that therefore such evidence of identification should not be admitted.

During the voir dire hearing the appellant also sought the exclusion of the evidence of Mr Nikias of his identification of the appellant immediately after the appellant was arrested by Constable Snowden near the tavern. The ground for exclusion of that evidence was that "it would be unsafe and unfair".

There was also an application to exclude evidence of the appellant's behaviour at the time of his arrest. There was evidence of his resisting arrest and using abusive language. The ground for the exclusion of that evidence was 'prejudicial and not probative'.

The learned Trial Judge refused all three applications.

I will, in due course, indicate the grounds of appeal but I can say that there was no appeal against his Honour's ruling in relation to the admissibility of Mr Nikias's evidence. Nor was there any appeal against the refusal to exclude evidence of the appellant's behaviour and language at the time of his arrest.

Circumstances Giving Rise to the Photographic Identification

The circumstances giving rise to the photographic identification were these. The appellant was identified by Mr Nikias on 27 March 1997. He was taken to the Port Adelaide Police Station and interviewed. After he was interviewed he was taken to the holding cells where he was photographed. A photograph was taken of him from the waist upwards. The photograph depicted him without clothing from the waist upwards. Messrs Wheeler and Quinn were also photographed.

On 5 April, Constable Snowden and Constable Vormelker attended at the accused's home at about 10:20 am. The purpose of the attendance was to ask the accused whether he would be prepared to participate in a line up.

The Police Officers identified themselves and then had a conversation with the appellant. Most of the conversation was captured on audio cassette. Clearly enough the opening words of the conversation were not recorded because the audio cassette begins with an answer by the appellant "Justin Jones".

"Snowden: And date of birth and address Justin, please Appellant: 25/12/78. 102 Northbri Avenue, Salisbury East. Snowden: Ta. I want to ask you erm, I need to do a line up of the incident that occurred the other day that I spoke, interviewed you, about. Would you be willing to go in a formal line up. Which is a stand up and line up ID. Jones: Er I'll say no now, but when I talk to my lawyer, if he says yes, I'll get in contact with you and er Snowden: Alright. I'll just tell you that if you, we don't do a formal ID, what I'll be doing is a photographic ID. Jones: Yeah. Snowden: Where I get a, a photo of you that we would have in our present possession and put a photo ID through to the witnesses. Okay. Do you understand that. Jones: Yeah. Snowden: So you can get back to me when you've spoken to your lawyer. Jones: Yeah. Snowden: Alright, thanks mate."

Although the audio cassette does not show it, Constable Snowden and Constable Vormelker both gave evidence that Constable Snowden gave the appellant the Henley Beach Police Station telephone number where Constable Snowden could be contacted or where a message could be left for him to telephone the appellant or his solicitor if the appellant was to take part in a line up identification parade.

The learned Trial Judge specifically accepted the evidence of the two Police Officers in that respect.

The appellant said, in his evidence on the voir dire application that he remembered Constable Snowden attending at his place at Salisbury on 5 April, which he thinks was a Saturday morning. He said he was woken by his girlfriend to be told that the Police were at the house. He said that he went outside and had a conversation with the Police. At no time did they come inside. He said he cannot remember if Constable Snowden introduced himself. At the time that Constable Snowden left the house he was not able to remember his name.

He was asked, in examination in chief on the voir dire: [TX 99]

"Q Did you note which Police Station he was attached to. A No. I thought he was Port Adelaide, because that's where I was locked up. Q You had no idea, did you, that he was attached to the Henley Beach Police Station. A No, not at all. Q Were you given any phone numbers. A No. Q Was Henley Beach Police Station mentioned. A No, not that I can remember."

He then said that he agreed with the contents of the audio cassette.

He said there was further conversation in which he was told by Constable Snowden that the trial would not take place for some time. He did not believe there would be a trial that year.

At the time that he spoke to Constable Snowden, when Constable Vormelker was present, he had not himself spoken to a lawyer but he had an appointment to see Mr Wardle, solicitor, on 9 April.

Whilst he saw his solicitor the next week, he did not mention to the solicitor that he had been given the option of attending a formal line up.

He said, in his evidence, that he did recognise that he had an option of a formal line up or otherwise a photographic identification.

In cross examination of the voir dire it is clear that the appellant's understanding of the position was the same as that of Constable Snowden. He said in cross examination: [TX 109]

"Q The police attended at your house on the Saturday morning. A Yes. Q They spoke to you about going in a lineup. A Yes. Q You declined, didn't you. A Yes. Q Because you wanted to speak to your lawyer. A Yes. Q And after you spoke to your lawyer, correct me if I am wrong, you said that if you said yes, you would contact them. A Yes. Q Before the police left one of the police officers said to you: "You can get back to me when you've spoken to your lawyer." A That's in the - Q That's what he asked you, didn't he. A Yes. Q And you said yes, didn't you. A Yes. Q So when the police left that Saturday morning your understanding was if your lawyer said yes about going in a lineup you would ring the police back, wasn't it. A Yes."

The appellant's case on the voir dire application was that he had no way of contacting the Police because he did not know the names of the Police Officers or from where they had come. He assumed they had come from the Port Adelaide Police Station and was never aware, so he said, that Constable Snowden was from the Henley Beach Police Station.

Even if the appellant was correct in his evidence that he was unaware that Constable Snowden came from the Henley Beach Police Station, the fact is that he did not attempt to make contact with Constable Snowden either at the Henley Beach Police Station or at the Port Adelaide Police Station. After that conversation he took no steps whatsoever to submit himself or to make himself available in any way in relation to a line up.

"Q So you knew when the police officer came to speak to you on 5 April that he wanted you to go in a line-up to see if people could identify you, or not. A Yes, I would I said that, I think. Q So you knew it was quite important, this issue about whether you would go into line-up or whether the police would do photos IDs, didn't you. A Not really, otherwise I would have made more of an attempt to get back to Mr Snowden, I suppose. Q You never ever attempted to get back to Constable Snowden, did you, about this topic. A I didn't know where he was from. Q You never ever made any attempt to get back to him. A What was I supposed to do? Q Did you ever make any attempt to get back to him. A No. What was I supposed to do? Q Did you ever ring the Port Adelaide Police Station and say - A And say 'Hello, is there a police officer there?' Q Did you ever ring the Port Adelaide Police Station. A No. Q Did you ever say to your lawyer 'Look, the police wanted me to be in a line-up but I can't remember who it is. Can you deal with that?' A I told you I would have said something about the line-up to my lawyer. I can't remember whether I asked him to get back to him or not. Q You can't help us on that. A No. Q But certainly you never ever got back to the police, did you. A No. Q And your lawyer never ever told you to get back to the police. A My lawyer would have got back to the police if he wanted me to, I suppose. Q We will hear from your lawyer if we are going to hear from your lawyer. He never asked you to contact the police, did he. A Not that I can recall, no."

The appellant admitted, however, that he did know that the Police Officer who came to his house on 5 April 1997 was the arresting officer. The Police Officer therefore was always identifiable.

Constable Snowden said that he searched to determine whether or not any message had been left for him by the appellant and was unable to find any message. That would be right because in fact the appellant did not ever attempt to contact him.

The learned Trial Judge accepted the evidence of Constable Snowden and rejected that of the appellant. With the exception of the question as to whether or not Constable Snowden and Constable Vormelker identified themselves and did so as coming from the Henley Beach Police Station there is little else in dispute between the two accounts.

Sometime on or before 7 May 1997, Constable Snowden put together a photo identification folder which consisted of a photograph of the accused and photographs of eleven other young men whose appearance was "not patently dissimilar" from that of the accused. On 7 May 1997, he produced it to one of the witnesses for the first time. Thereafter he presented it to a number of witnesses seeking evidence as to whether or not they could identify the accused.

The learned Trial Judge held that no effort had been made by the appellant to co-operate in a line up identification. In those circumstances and in view of the conduct of Constable Snowden, which he said was entirely proper, he concluded that it would be appropriate not to exercise his discretion to exclude the photographic evidence at the trial.

With that background I turn to the grounds of appeal.

"1. The Learned Trial Judge fell into error in refusing to exclude evidence of the photographic array (i) The appellant was a young man. (ii) He had not given a final refusal to go into a line up. (iii) Not a great deal of time had lapsed. (iv) No further attempt was made to contact Jones. (v) No attempt was made to ascertain if Jones had received legal advice. (vi) Committal hearing dates were imminent and gave the Police/Prosecution an opportunity to see if Jones was represented and had advice. 2. The learned trial Judge fell into error in directing that the trial of the accused should proceed before the Jury in the absence of tha (sic) accused. (i) The trial was at an early stage. (ii) Issues of identification were involved. (iii) The public interests (sic) requires the presence of the defendant during a trial. (iv) The fact that a co-accused, who had pleaded guilty to a lesser charge and was also awaiting sentence on a number of more serious offences, should not be factor of any weight to be taken into account. (v) The question of whether or not there might be a further voire (sic) dire application should there be a fresh trial before another Judge is not relevant to the exercise of the discretion. (vi) Whilst the jury were able to view the video of the accused at the record of interview, this provided a highly prejudicial element, as the accused was intoxicated at the time, which could not be balanced by any impression the jury might gain from his presence and/or evidence."

There is no doubt that where identification is an issue in a criminal trial the preferred method of establishing the identification of the accused is by an identification parade.

The advantages of an identification parade are clear enough. First, of course, the parade is held in the presence of the accused and therefore he or she can be sure that the parade was carried out fairly. Secondly, and just as importantly, of course, it is the most reliable form of identification.

The identification of an accused by photographs has the corresponding weaknesses. The accused is not present and cannot be sure that the identification was wholly fair. That is to say, he cannot be sure that the witness's attention was not drawn to his photograph or something was said that would influence the witness to identify the accused. Secondly, a photograph of the accused might suggest to a jury that the accused has a criminal history. Thirdly, the photograph used may not necessarily be contemporaneous and the accused's features may have changed either by efluxion of time or by a calculated change of appearance such as longer hair, or with a man, the growing of or removal of facial hair. Fourthly, a photograph is a reproduction of the accused and cannot be as reliable as the production of the accused.

Ordinarily, therefore, it is encumbant upon the prosecuting authority to establish the identity of the accused through an identification parade.

Clearly enough, an identification parade will not be possible in every case because its happening depends upon the co-operation of the accused. Therefore it will not occur if the accused refuses to take part in such a parade.

In R v Hallam and Cargar (1985) 42 SASR 126 at 130 King CJ said:

"It should be emphasized that the proper method of procuring evidence of identification is by the identification parade. Identification by selection of photographs is open to grave objections and should be resorted to only where unavoidable. That method may be unavoidable, during the course of an investigation, where there is no definite suspect or where the suspect will not consent to an identification parade."

Where the prosecution authority has resorted to identification through photographic evidence, that evidence may still be admissible. In Alexander v The Queen [1981] HCA 17; (1980) 145 CLR 395 the four Judges constituting the majority, whilst concluding that the use of an identification parade was the preferable form of identification, accepted that photographic evidence was admissible even where an identification parade had not been carried out. Gibbs CJ said at 400:

"However, as a matter of legal principle, it seems to me impossible to say that the admissibility of evidence of a prior act of identification depends on the fact that an identification parade was held. As a matter of law it would be equally admissible to prove that an identification was made by a witness who was shown a collection of photographs and selected one which he said was the photograph of the person concerned."

Gibbs CJ then considered the undesirability of using photographic evidence to establish identity and pointed to the undoubted advantages of using an identification parade. His Honour concluded that it is undesirable that Police Officers should use photographic evidence rather than an identification parade.

However, having considered that matter he then said at 402:

"The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has the discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the Judge was of the opinion that the evidence had little weight or was likely to be gravely prejudicial to the accused. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason 'only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person': Reg v Russell (1977) 2 NZLR at 28."

Mason J (with whom Aickin J agreed) said at 430:

"In my opinion the Australian cases demonstrate that identification from police photographs is admissible evidence, that its probative value may be important, that the judge has a discretion to exclude it when he considers its prejudicial effect outweighs that value, and that directions may be given to ensure that unfair use is not made of the evidence. I follow them in preference to Wainwright and the other English cases. The approach taken in the Australian cases to which I have referred accords with what this Court said in Davies and Cody v The King, when it pointed out that "in each case the question must be, not whether the identification has been conducted with propriety and fairness, but whether upon the whole evidence as it in fact existed when it came to be laid before the jury, and having full regard to the treatment of the matter at the trial, the actual verdict ought not to stand because a miscarriage of the kind described occurred (references omitted)."

In the instant case the learned Trial Judge thought it appropriate to refuse the invitation to exercise the discretion to exclude the evidence because he was satisfied that the Police had given the appellant every opportunity to participate in an identification parade. He was satisfied that the failure to hold the identification parade was caused by the appellant's own failure to indicate his willingness to participate.

I believe the evidence on the voir dire hearing supported the factual conclusions at which the learned Trial Judge arrived. There was really no dispute between the Police and the appellant that the Police, within a week of the appellant's arrest, went to the appellant's house and offered him the opportunity to participate in an identification parade. The appellant consulted his lawyer within a few days of that time but at no stage indicated a willingness to participate. The Police did not attempt to obtain evidence of identification until nearly a month after the offer made by them to the appellant.

On appeal the question for this Court is as stated by Gibbs CJ in Alexander v The Queen at 403:

"If the Trial Judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case."

The dicta of Mason J at 430, to which I have already referred, is to the same effect.

The notice of appeal raises six matters in support of a claim that the photographic evidence ought to have been excluded. Whilst it might be said that the appellant was a young man, that cannot of itself be a ground for the exclusion of photographic evidence except if his youth has caused him some special prejudice.

The appellant never finally refused to go into a line up. He said in his evidence that he only learnt for the first time at his trial that photographic evidence had been used for the purpose of his identification. The fact is that at no time between 5 April and the date of his trial did he indicate that he would participate in the line up or an identification parade.

Whilst it is so that no attempt was made to ascertain whether the appellant had obtained legal advice, the fact is that he had. He saw a solicitor within a few days of the conversation with Constable Snowden and Constable Vormelker. It was open to the appellant on the voir dire hearing to call evidence from his solicitor to the effect that the solicitor was never advised that the appellant had been offered the opportunity of a line up which, if that was the evidence, would indicate perhaps that the appellant had not understood the importance of the conversation with the Police Officers. No such evidence was led.

In this case, in my opinion, the photographic evidence which was submitted to the witnesses was contemporaneous. The photograph did not indicate that the appellant had a criminal history. It indicated a good likeness of the appellant and accepting the evidence of Constable Snowden, which the learned Trial Judge did, the procedure was carried out fairly. In those circumstances and in circumstances where the appellant either refused or neglected to participate in the line up, it cannot be said, in my opinion, that the learned Trial Judge erred in refusing to exercise his discretion to exclude this evidence.

In Lawrence v The King (1933) AC 699 Lord Atkin said, whilst sitting as a member of the Judicial Committee of the Privy Council at 708:

"It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence. There is authority for saying that in cases of misdemeanour there may be special circumstances which permit a trial in the absence of the accused, but on trials for felony the rule is inviolable, unless possibly the violent conduct of the accused himself intended to make trial impossible renders it lawful to continue in his absence. The result is that sentence passed for felony in the absence of the accused is totally invalid."

Lord Atkin in that advice clearly distinguished between a felony and a misdemeanour and suggested that it was an inviolate rule that a criminal trial could not proceed in the absence of the accused where an accused was charged with a felony.

In that case the accused was present throughout his trial and when the verdict was delivered. He was present when he was sentenced to imprisonment. The sentence of imprisonment was 'invalid' in that the sentence exceeded the maximum. The judge heard the prosector in chambers and altered the sentence in its parts but left the total sentence intact. The accused was not present when the judge made that change. The case was not concerned with the accused's right to be in attendance during the trial and more particularly was not concerned with circumstances where an accused was present at the commencement of the trial but absconded during the trial. The accused in Lawrence v The King was always available to be present when the judge altered his sentence.

At the time that his Lordship made those remarks a person charged with a felony would usually not be on bail during the course of the trial. Indeed it would not have been the usual practise for a person accused of a felony to obtain bail prior to the trial. His Lordship's wide statement has to be understood in that context. Moreover, as I have already mentioned, His Lordship was not addressing, in that dicta, circumstances where the accused is present at the commencement of the trial but unlawfully absents himself or herself thereafter.

That case was considered in R v Cornwell (1972) 2 NSWLR 1 which was also a case where sentence was imposed in the absence of the accused. The Court removed the prisoner from the Court, because of his behaviour and imposed sentence in his absence. Jacobs JA in the Court of Criminal Appeal said of his Lordship's advice that even in the case of a felony, absconding whilst on bail may amount to a waiving of the right of the accused to be present during the accused's trial. Jacobs JA left open the question of whether a trial could proceed in the absence of the accused where the conduct of the accused, when present, is intended to and does make the trial impossible.

In R v McHardie and Danielson (1983) 2 NSWLR 733 the Court of Criminal Appeal in New South Wales determined that there was no longer a distinction of any significance between a felony and misdemeanour and recognised that a court might proceed with an accused's trial even in the case of a felony where the accused was absent.

In that case the accused had escaped from lawful custody during the course of the trial. The Court said at 742:

"We accordingly find, in the ultimate, that on the weight of judicial authority absconding on bail during a trial amounts to a waiver by the accused to his right to be present at trial. We think it a fortiori case, where the accused (in the present case) made an escape from lawful custody in prison, and fled interstate out of the jurisdiction. We hold that the Trial Judge had the discretion to continue the trial in the absence of the accused, McHardie."

Both R v Cornwell and R v McHardie and Danielson were considered by the Court of Criminal Appeal in New South Wales in R v Hallocoglu (1991) 29 NSWLR 67. In that case the respondent did not attend upon an appeal. In fact he had left the country eight days earlier although he was aware of the date of the hearing.

Hunt CJ at CL (with whom Sharpe J agreed) after referring to Lawrence v The King said:

"A further exception to the "inviolable" rule stated by Lord Atkin in Lawrence v The King has been perceived in relation to felony cases where the accused has voluntarily absented himself: R v Abrahams [1895] ArgusLawRp 62; (1895) 21 VLR 343 at 347-348; R v Jones (No 2) [1972] 1 WLR 887 at 891-892; [1972] 2 All ER 731 at 735-736. The first of those was, however, a misdemeanour case; the second was decided in England at a time when the distinction between felonies and misdemeanours had been abolished there (and, indeed, recognised that the position had been different before that abolition). The distinction still exists in New South Wales, and thus neither case is authority for the existence of such a further exception in felony cases. The further exception was nevertheless held by this Court to be applicable in felony cases, in R v McHardie and Danielson [1983] 2 NSWLR 733 at 742-743, upon what appears (with respect) to be the doubtful basis that the distinction between felonies and misdemeanours is no longer of any legal significance in this State: cf Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583. That decision appears also to have been based upon an understanding that the earlier decision of this Court in R v Cornwell had recognised the further exception. R v Cornwell was, however, concerned only with the exception recognised in Lawrence v The King - that is, where the conduct of the accused makes the trial impossible. The reference (at 3) to R v Jones (No 2) which recognises the further exception based upon an accused's voluntarily absenting himself - was no part of the ratio decidendi and, if intended to be an adoption of the availability of that further exception in felony cases, is inconsistent with what was described by the court in that case as the "strong" decision of the Privy Council in Lawrence v The King. It is true that, in Lawrence v The King, the Privy Council was not concerned with a case in which the accused had voluntarily absented himself, but I do not (with due respect to the contrary view expressed by some others) accept that that circumstance reduces the persuasiveness of the statement so strongly made by Lord Atkin. Accordingly, I have grave doubts as to whether R v McHardie and Danielson was correctly decided. It has nevertheless recently been followed by this Court (apparently without argument), in R v Peuna (Court of Criminal Appeal, 23 July 1992, unreported (at 16). It was earlier followed in South Australia (at first instance), in R v Rigney (1988) 48 SASR 72 at 77."

Grove J said that he did not wish to be taken to be impliedly eroding the authority of R v McHardie.

The facts, in this case, are not distinguishable from those in R v Rigney (1988) 48 SASR 72. In that case a trial also commenced and after one day the accused absented himself. After the matter had been adjourned to enable the accused to be located counsel for the accused withdrew. In that case Perry J concluded that he had power to allow the matter to continue in the absence of the accused and the matter proceeded to a conclusion without the prosecutor addressing the jury. After a review of authorities his Honour concluded that there were circumstances where a Judge could, in the exercise of the Judge's discretion, continue with a trial in the absence of the accused. One of those circumstances was where an accused absconded on bail during the trial.

Since the decision in R v Rigney the classifications of offences of felonies and misdemeanours has been abolished (s5D Criminal Law Consolidation Act; Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994).

Offences are now classified as summary offences, minor indictable offences and major indictable offences. In a consideration of whether or not a court can proceed in the absence of the accused person there seems to be no reason to perpetuate any distinction in the classification of offences as Lord Atkin did, except perhaps in the exercise of the discretion as to whether to adopt the course of proceeding in the absence of the accused.

Of course, the more serious the offence the more likely it is that a court would not proceed in the absence of the accused. That is not to say, however, that even where an accused is charged with a most serious offence a Court would not, if the circumstances so dictated, allow the matter to proceed in the absence of the accused.

Apart from the seriousness of the offence other matters will need to be considered in exercising the discretion to proceed with the trial. Those other matters will include the nature of the charge, the evidence which is to be adduced in support of the charge and the personal circumstances of the accused including the physical and mental condition of the accused.

In my opinion the decision in R v Rigney was correct for the reasons expressed by Perry J. However, with the abolition of the distinction between felonies and misdemeanours since that decision there is even more reason to arrive at the conclusion at which Perry J arrived. There is no reason to distinguish between felonies or misdemeanours or major indictable offences, minor indictable offences or summary offences. The seriousness of the offence charged, however, will be a factor in the exercise of the discretion.

In my opinion a court may proceed with a trial in the absence of an accused person. It may do so in circumstances where the accused person has indicated that he or she waives a right to be present. An accused person will waive a right to be present when that person, during the currency of the trial, for example, escapes from custody; or where the accused person unlawfully absents himself or herself in breach of a bail agreement; or where, without any good excuse or explanation, the person absents himself or herself from the proceedings.

In any of those cases if the court is satisfied that the accused has waived his or her right to be present during the trial, and that the trial may proceed without any injustice to that person, except the injustice caused by the accused's own waiver, then the court may proceed with the accused's trial.

Any discretion to proceed in the absence of the accused, however, should be exercised sparingly.

The particulars of the ground of appeal raised both general and specific matters. It was said that the public interest requires the presence of an accused during a trial. I think that is right. It is not only the public interest which demands the accused's presence but so also the accused's presence is fundamental for the fair trial of that accused.

The appellant argued that Gazepis v Police [1997] SASC 6813; (1997) 70 SASR 121 was authority for the proposition that a trial should only proceed in the absence of the accused in the most unusual circumstances.

Gazepis v Police was a trial in the Magistrates Court. In that case the Magistrate either asked or directed that the accused absent himself whilst the Magistrate addressed and in fact rebuked the accused's counsel. It was put, in that case, that it was impermissible for the Magistrate to require the accused to absent himself from the proceeding because he had a right to be present throughout.

So much was accepted by the Full Court and the Court determined that the Magistrate was in error in asking the accused to leave the Court notwithstanding that it was for a short period of time.

However, the fact situation in that case was quite different. Indeed Doyle CJ made it clear in his reasons, that he was approaching the matter on the basis that the miscarriage of justice arose out of the Magistrate asking or ordering the accused to leave the Court. He said at 129:

"I consider that what happened was a clear irregularity in the course of the trial. But, having regard to the circumstances just adverted to by me, I do not consider that it can be said that the defendant was denied a fair trial, which for present purposes means a trial in his presence if he chooses to be present."

Later, in his reasons, he recognised that a trial could proceed in the Magistrates Court in the absence of the accused if the accused consented.

In my opinion, Gazepis v Police is not relevant for a consideration of the principles in this appeal.

There must be circumstances where a trial can proceed in the absence of the accused. Otherwise any accused, who was on bail, and who believed at some time during a trial that his or her prospects of acquittal were remote could absent himself or herself from the trial and thereby force a new trial. That cannot be right. If that was a principle then it would be necessary to revoke the bail of all accused persons at the outset of their trial. That would be an unfortunate and unfair consequence of that fundamental principle. Whilst the fundamental principle is that an accused person is entitled to hear every word of evidence presented during the trial, the addresses of counsel and the summing up of the Judge, that right can be waived and when it is waived the courts may proceed to complete the trial in the absence of the accused.

The Court, however, should be satisfied that the accused has waived his or her right to be present. There may be circumstances where an accused could have attended the trial but has elected not to do so because of some competing obligation.

If, in due course, an accused person presented evidence which indicated that although the accused had absented himself or herself from the trial, there were reasons for doing so which showed that the accused was not waiving his or her right to be present then that might mean that a verdict delivered, in the absence of the accused, will amount to a miscarriage of justice. No reason was provided to the Trial Judge, nor to this Court, as to why the appellant absented himself from trial.

It was put specifically in this case that the learned Trial Judge erred in the exercise of his discretion by insisting that the trial continue in the absence of the appellant when the trial had just commenced. It was said, in circumstances where the trial had only been in progress one day, and to that part of time the Court had heard only the Crown opening and the first witness, that necessarily it was an error in the exercise of the Judge's discretion to continue with the matter. It was pointed out that the authorities dealing with the question of the continuance of an accused's trial in the accused's absence were all concerned with trials which had run for some time when the accused had absconded or absented himself. It was submitted that in those circumstances the learned Trial Judge should have recognised that it was in the interests of justice to discontinue further hearing.

I do not agree with that submission. The learned Trial Judge did not approach this matter, nor should he have, upon the basis that the trial may or may not proceed having regard to the length of time already taken in the trial.

That must be a relevant matter in the exercise of discretion but it cannot be determinative as suggested by counsel for the appellant. The first matter which must be considered in determining whether or not the trial can proceed is whether the appellant has voluntarily absented himself or herself and that the accused's absence indicates a waiver of the accused's right to be present during the whole of the proceedings. Next an inquiry must be made to ascertain whether the accused's counsel will remain during the continuance of the trial. It is difficult to imagine a circumstance where an accused has truly waived his or her rights to be present during the trial but has instructed counsel to remain to protect the accused's interests. One would have thought that if the accused has left counsel to protect the accused's interests then the accused really has not truly waived the accused's right to be present at the trial. I suppose sickness might be one circumstance where the accused might absent himself or herself from the trial but, it seems to me, that if the accused is suffering from a sickness so serious that he or she cannot remain in the Court then absence in those circumstances does not indicate that the accused is waiving his or her right to be present.

In Howson (1981) 74 Cr App R 172 the Court of Appeal decided that a trial judge was not in error in allowing a trial to continue in the absence of one of the accused who was too ill to attend. It was said that a discretion existed to allow the matter to proceed but it is a discretion to be exercised sparingly and never if the accused's defence could be prejudiced by his absence. This Court does not need to decide whether there is a discretion in the Court to allow a trial to proceed in circumstances where the accused is genuinely too ill to attend and does not consent to the matter proceeding.

Where a discretion does exist and where the Court has concluded that the accused has waived his or her right to be present during the trial the exercise of the discretion will depend upon a number of factors. Those factors might include an assessment of the strength of the Crown case and the nature of the Crown case, the defence in so far 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.

Furthermore, a trial judge must always consider the fundamental right of an accused person to be present at his or her trial and the discretion to continue with the trial should only ever be exercised sparingly.

In my opinion, the learned Trial Judge did have a discretion to proceed with the trial in the absence of this appellant. In exercising that discretion it does not appear to me that he had regard to any matter which was irrelevant or failed to have regard to matters which were relevant.

There was no explanation for the appellant's absence nor has any explanation been proffered since that time.

The appellant absented himself immediately after a key Crown witness had given evidence and when the Crown case was at its highest. It may be assumed that the appellant believed that the evidence indicated his prospects of acquittal were remote. The learned Trial Judge was entitled to assume that the appellant had simply absconded in contravention of his bail and was not prepared to remain in the charge of the jury.

The ultimate question, of course, for this Court on appeal is whether or not the conviction which has been entered against the appellant amounts to a miscarriage of justice. If this Court believed that the appellant has suffered a miscarriage of justice, even though that miscarriage of justice has been caused by his own voluntary absence from the Court, then this Court would still set aside that conviction. It would not be appropriate to allow a conviction to stand when that conviction was either not supported by the evidence or had been arrived at after some demonstrable error in the trial process.

Ms Kelly, who appeared on behalf of the Director of Public Prosecutions acknowledged that she had a burden of convincing this Court that the verdict arrived at did not give rise to a miscarriage of justice.

In my opinion, she discharged that burden. The Crown case was very strong; indeed almost overwhelming. The evidence identifying the appellant was very strong. There was also a consistency in the evidence of the Crown's witnesses. The learned Trial Judge's charge could not be criticised. Indeed, as Ms Kelly pointed out, there was no suggestion on the part of the appellant that there was any inadequacy or error in the learned Trial Judge's summing up.

In my opinion, in the circumstances of this case, the learned Trial Judge has not been shown to be in error in the exercise of his discretion in continuing with the trial in the absence of the accused.

The appeal against conviction should be dismissed.

WICKS J. I agree that the appeal against conviction should be dismissed for the reasons given by Lander J.

Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994

At a glance

Court

Decision date

Before

Source

Judgment (135 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (8)