32 In R v Mokbel[8], Gillard, J referred to R v Jones and R v McHardie & Danielson and followed the principles established by those cases. In that case the accused man, who was charged with being knowingly concerned in the importation of drugs, absconded shortly after the commencement of the final address by the Crown prosecutor. Gillard, J, after reviewing the authorities, held that in the interests of justice it was appropriate that the trial of the accused should proceed in his absence. The accused was convicted by the jury and was sentenced to 12 years' imprisonment.
33 It is understandable that the right of an accused person to attend and be present at the trial of an indictable offence is of singular importance in our system of justice. Ordinarily, it would be repugnant to basic notions of fairness should a trial proceed in the absence of an accused person. Each person is entitled to hear the evidence against him and to confront his accuser or accusers. An accused is entitled to be present to instruct counsel and to make response by electing to give evidence if he so chooses.
34 Nonetheless, as the authorities to which I have just referred have made clear, the fact that an accused has a paramount right to be present at his trial does not necessarily mean that a trial of that accused may not proceed in the accused's absence. This is particularly so where the accused by his or her own conduct has made it impossible for the trial to proceed in the presence of the accused. It was for that reason that the courts have recognised the power of a trial judge to continue a trial if an accused has so misbehaved in court as to render the continued hearing of the trial in his presence impossible.
35 Likewise, more recent authorities to which I have referred have recognised the discretionary power of the trial judge to continue a trial where the accused, by his own conscious and deliberate election, has chosen to abscond and not attend the trial and, thus, avail himself of the rights to which I have just referred.
36 In this case the charge against the accused man is, of course, most serious. The Crown case has not yet closed. Theoretically, the accused might have elected to give evidence at the conclusion of the Crown case. Ordinarily, it would not be consonant with basic principles of justice for the trial to continue in the absence of the accused. However, in my view, there are very powerful reasons why this trial should continue notwithstanding the absence of the accused man.
37 First and foremost, of course, the accused has made a conscious, wilful and deliberate choice to absent himself from the trial. It is not coincidental that the accused chose to absent himself near the conclusion of the Crown case and immediately after a weekend. The clear inference is that the accused had formed the perception, whether rightly or wrongly, that the trial was not going well for him and has decamped from his home at a time which has given himself the maximum amount of time start on the police who are now making investigations as to his whereabouts. Thus, the accused has made a calculated decision to absent himself from this trial. In the words of the South Australian Court of Criminal Appeal in Jones, he has voluntarily waived his right to attend and, if necessary, to give evidence on his own behalf.
38 I should remark, in any event, that I would have been surprised had the accused given evidence in this case if he had not absconded. I have listened to the tape-recordings of his first two records of interview and have observed him on the videotape of the third record of interview. Two points are relevant.
39 Firstly, the accused will have the advantage of those interviews being placed in evidence before the jury. I shall instruct the jury that the accused is entitled to rely on the exculpatory parts of those interviews.
40 Secondly, having had the opportunity of observing the accused in the interviews, it is not presumptuous of me to say that I would have been particularly surprised had counsel advised him to give evidence on his own behalf. The accused was demonstrably garrulous and excitable. Thus, I would seriously doubt if the accused had chosen to give evidence if he had not absconded. However, that is perhaps beside the point because the simple fact is that the accused by absconding has plainly waived his right to give evidence in the trial.
41 It is true that the accused would not be present for the remainder of the trial should I decide that it should proceed. However, the bulk of the evidence against the accused man is now completed. In particular, the most important and, indeed, key Crown witnesses have given their evidence and have been cross-examined. The remaining evidence is mainly evidence to be called from police investigators, and on my understanding of the issues in the case that evidence is largely uncontroversial. Some formal matters also need to be proven and I would doubt that they would have been in contest. Indeed, had counsel remained in this case, I would expect that a number of those formal matters would have been proven either by admission or by having statements from a number of witnesses read into evidence.
42 Furthermore, the issues have already been well-defined before the jury. Mr Rochford made a preliminary opening in which he clearly and succinctly outlined to the jury the matters which are in issue. Mr Rochford and Mr Hallowes have cross-examined a number of witnesses and, by doing so, have assisted in defining the issues which the jury will need to consider when they retire to consider their verdict.
43 In my charge to the jury I shall endeavour to indicate to the jury the points which have been made on behalf of the accused man.
44 Thus, in my view, the accused suffers little prejudice from a decision by me to continue with the trial in his absence. The only disadvantage is his inability to instruct counsel and to give evidence. Each of those disadvantages are a product of his own conscious and deliberate decision not to answer his bail and to attend at court.
45 On the other hand, there are matters of public policy which, in my view, weigh powerfully in favour of the continuation of this trial in the absence of the accused man. As the English Court of Appeal observed in Howson's case, although the judge has a paramount duty to ensure that the accused has a fair trial, he also has a duty to the community as a whole to ensure that the administration of justice is not unnecessarily impeded.
46 The Crown and the community have an interest in the completion of this trial. That interest is subordinate to the paramount right of the accused to a fair trial but that interest is not non-existent. In a case such as this the accused has wilfully abandoned his right to be present at the trial. In those circumstances, it is appropriate to take into account the interests of the Crown and the community in the completion of the trial of the accused.
47 As the South Australian Court of Criminal Appeal observed in Jones's case, it cannot be right that every time an accused man absconds during his trial, that trial must be discontinued. Otherwise, each accused would be required to surrender his or her bail at the commencement of a trial. In my view, such a result would be most unfortunate and would be most unfair to the overwhelmingly large majority of accused persons who conscientiously attend their trials while on bail.
48 In my view, it is relevant to take into account the potential general perception which might ensue should I abort this trial because the accused has failed to honour the terms of his bail.
49 In addition, it is appropriate to take into account the position of a number of witnesses who are friends of Ms Trailovic and who, under some strain, have come to give evidence in this case. If I were to discontinue the trial and the accused to be later located, those persons would be put to the repeated inconvenience and strain of giving evidence on behalf of the Crown.
50 The Crown has called 45 witnesses. 28 of those witnesses are civilians. Some are elderly and at least two appeared to me to be quite frail. A number of the witnesses already have had some difficulty with their memories and that is understandable because they have been relating events which occurred more than four years ago.
51 If the accused were later apprehended, there would no doubt be some delay in bringing him back to trial and the witnesses who have been called in this trial would need to be called again. Not only, as I say, would that involve a great strain and inconvenience to them and an expense to the Crown and the community, but, in my view, it would be unfair to the Crown because a number of those witnesses' memories might be further eroded by the effluxion of time.
52 It is also relevant to state that I have observed that two of the witnesses who gave evidence and who were neighbours or friends of Ms Trailovic have remained in court on almost each day to observe the trial, no doubt out of respect for Ms Trailovic. While the interests of those persons cannot supersede the interests of the accused, they are relevant and carry some weight.
53 Finally, of course, there is the question of the Crown's and the police resources. As I stated, a large number of witnesses have been called. There were three expert witnesses. This case is a circumstantial case and has involved calling a disparate variety of witnesses. If the case were now aborted that would involve, in my view, a shameful waste of community expense and effort.
54 Taking all of those matters into account, in my view not only would it be appropriate but, indeed, the circumstances demand that I exercise my discretion in favour of the continuation of the trial in the absence of the accused man.
55 At the risk of repetition, the accused man has brought the situation on his own head by his own conscious, deliberate and voluntary decision to abscond while on bail.
56 Taking into account and paying full heed to his paramount right to a fair trial, I am nonetheless well persuaded that in the exercise of my discretion I should rule that the trial continue in his absence.