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[2007] VSC 209
Supreme Court of Victoria
2007-06-06
KAYE J
Original judgment source is linked above.
CRIMINAL LAW - Murder trial - Accused man absconded - Counsel for accused have withdrawn from case - Fundamental principle that trial for indictable offence be conducted in presence of accused - Rule not absolute or inflexible - Discretion of trial judge to continue trial in absence of accused - Accused has consciously, wilfully and deliberately absented himself - Accused would suffer little prejudice if trial continued in his absence - Powerful public policy reasons for continuing trial - Trial to continue in absence of accused.
1 The accused man, Apolonio 'Tony' Serrano, has been charged with the murder of Milicia Trailovic at Endeavour Hills on or about 26 December 2003. He was charged with Ms Trailovic's murder on 7 October 2005. In June 2006 a committal proceeding was heard at the Melbourne Magistrates' Court, at the conclusion of which he was committed for trial.
2 On 8 August 2006 the accused applied to Bongiorno, J for an order that he be released on bail. His Honour acceded to that application and made an order that the accused be admitted to bail on his own undertaking with one surety in the sum of $40,000. A number of conditions were stipulated by His Honour in the order granting bail, including a condition that the accused report daily to the officer-in-charge of the police station at Dandenong between the hours of 8 a.m. and 6 p.m.
3 The trial was listed for Monday, 21 May 2007.
4 On Friday, 18 May I conducted a preliminary directions hearing in the trial. At that hearing an application was made on behalf of the accused man that his bail be extended until further order. The Crown did not oppose that application and accordingly I made an order extending the bail of the accused man on the same terms and conditions as that fixed by Bongiorno, J.
5 The trial commenced on Monday 21 May. After two days of legal argument and rulings, the jury was empanelled on Wednesday 23 May. The evidence in the trial then proceeded until Friday 1 June. At that stage police witnesses were giving evidence in relation to records of interview which had been conducted with the accused man. By the end of 1 June it was estimated that the Crown case would conclude either on the following Monday or early on the next Tuesday.
6 On Monday, 4 June the accused man failed to attend and answer his bail. Accordingly, I revoked his bail and issued a warrant for his arrest. The proceeding was then adjourned to the next day.
7 On Tuesday, 5 June the accused man again did not attend. In the absence of the jury I heard evidence from the informant, Senior Detective Cookson, as to inquiries made relating to the whereabouts of the accused. In his evidence Mr Cookson told me that on Monday, 4 June, after I had issued the warrant for the arrest of the accused, Inspector Waddell and he had attended at the accused's home address at unit 7/186 Princes Highway, Hallam. They gained entrance through the back door of the premises. The accused was not at home. Mr Cookson observed that the doors to the wardrobe in the accused's bedroom were open, there were a number of clothes missing from the middle of the wardrobe and the hangers on which those clothes apparently had been previously placed were still in the wardrobe. There were no shoes in the wardrobe. Mr Cookson could find no bag or suitcase. There was no food at all in the refrigerator. The shower recess was dry. There was no sign the accused man had recently occupied the unit. The accused's vehicle was not in the garage or in front of his unit.
8 The police also made enquiries of the accused's girlfriend who stated to them that she had not seen the accused for three months.
9 The police checked with hospitals and psychiatric units and found no record of any recent admission to any of those institutions involving the accused.
10 The accused had not been in contact with any police agency. He had not left the country and had not been in touch with the Spanish Consulate.
11 On hearing that evidence, I adjourned the matter until today, Wednesday, 6 June, to enable the police to continue their inquiries.
12 Today the accused man did not attend again. Senior Detective Cookson gave further evidence. He told me that yesterday members of the Dandenong Criminal Investigation Unit attended at the accused's home unit. The accused was not present. Neighbours to whom the police spoke told them that they last saw the accused on Saturday morning and had not seen him since. His mobile telephone has been switched off. Appropriate alerts have been posted on the police intranet site and the Australian Federal Police have been notified.
13 Mr Cookson advised me that it is his belief that the accused man has absconded.
14 Mr Rochford, who appears with Mr Hallowes on behalf of the accused, announced to me this morning that he and his junior intended to withdraw from appearing in the case. He told me he had received advice from the Ethics Committee that in the absence of a client to give he and his junior instruction, it was their obligation to withdraw from the case.
15 I expressed my views to Mr Rochford and Mr Hallowes that I disagreed with the advice given to them by the Ethics Committee and that, in my view, both counsel owed a duty to the court to remain and to participate in the trial. Notwithstanding my expression of those views, both counsel have departed.
16 The question which now arises concerns the future disposition of this trial. The Crown case is well progressed and, as I have stated, it is anticipated that if the trial does proceed the Crown would be able to close its case within approximately one day.
17 Mr Gibson, who appears to prosecute, has submitted that in the circumstances I should exercise my discretion to continue the trial in the absence of the accused man.
18 In my view, the evidence overwhelmingly supports the inference that the accused man has absconded. There is no suggestion at all that he has had an accident, has suffered some bout of ill-health or has met with foul play. All the evidence relating to the condition of his unit is not only consistent with, but irresistibly leads to, the conclusion that the accused man has deliberately chosen to abscond.
19 I should at this stage refer further to the fact that it was a condition of the accused man's bail that he report daily to Dandenong Police Station. Mr Cookson in his evidence told me that on Monday, 4 June he was for the first time made aware by the Dandenong Police Station that the accused man had ceased to comply with that condition of his bail on 26 May. Apparently, the accused man had signed the bail book up to and including 20 May. He had not signed it between 21 and 25 May and there was a notation that he was attending court. The accused man then attended and signed the bail book on Saturday, 26 May but had not signed it or attended at the Dandenong Police Station thereafter.
20 As I have remarked to Mr Cookson while he gave his evidence, it is a matter of grave concern to me that the Dandenong Police Station failed to comply with its clear and important obligation to inform him as the informant and the Crown of the continued breach by the accused man of his bail condition.
21 Little purpose is served by imposing a reporting condition unless the authority to whom the report is made as a matter of priority and urgency communicates to the informant and to the Crown any breach by an accused person of the terms of his or her bail.
22 In this case, the reporting condition was far from a formality. The accused was on trial for a very serious criminal offence. He lived alone. On any view, the requirement that he report daily to Dandenong Police Station was an important condition imposed by Bongiorno, J in granting the accused man bail.
23 The failure of the Dandenong Police Station as a matter of priority to draw to the attention of Mr Cookson the accused man's failure to abide by the reporting conditions imposed on him is, to say the least, most regrettable.
24 It is a long-standing and fundamental principle of our criminal justice system that a trial for an indictable offence should be conducted in the presence of the accused; see Lawrence v R[1] and R v Abrahams[2]. However, it has been recognised that that principle is not an absolute and inflexible rule. It admits of certain exceptions. One exception, referred to by Lord Atkin in Lawrence's case, is where the accused has so conducted himself in the course of the trial as to render the continued trial in his presence impossible. In such a case it has been recognised that the trial judge has a discretion to have the accused removed from the Court and the trial to proceed in his or her absence; see R v Vernell[3].
25 A further exception to the principle that an accused be present on the trial of an indictable offence has been recognised in a number of recent cases. Where an accused person deliberately absconds on bail during a trial, that conduct by the accused may be considered to be a waiver by him or her of the right to be present at the trial. In such a case the trial judge has a discretion whether the trial should continue in the absence of the accused.
26 In R v McHardie & Danielson[4] the two accused were charged on three counts of maliciously placing an explosive substance in premises at Woolworths Ltd and one count of extortion. Those charges related to a series of bombings in December of 1981 of three Woolworths retail stores in Sydney, and an extortion demand threatening further bombings unless a ransom of gold, jewellery and cash amounting to the value of $1,000,000 were paid to the accused. After the 13th day of the trial one of the accused, McHardie, escaped from gaol. Counsel for the other accused, Danielson, submitted that the trial should continue in his absence. The Crown supported that submission. The trial judge acceded to that submission and the trial proceeded for a further five days. At the conclusion of the trial each of the accused were convicted on all four counts and were sentenced each to 20 years' imprisonment. On appeal it was submitted that the trial judge should have discharged the jury when McHardie absconded from gaol. The New South Wales Court of Appeal in a joint judgment rejected that ground of appeal. Having considered a number of relevant authorities, the Court observed at p.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 of his right to be present at his trial. We think it is an a fortiori case where the accused, as 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 a discretion to continue the trial in the absence of the accused McHardie."
27 The New South Wales Court of Appeal went on to hold that in the circumstances of the case it had not been shown that the judge's discretion to continue the trial had miscarried. In so holding, the Court clearly took into account the fact that the bulk of the Crown case against McHardie had already been given by the time of his escape, and that a great deal of the time of the Court, the jury and witnesses had been expended in the 13 days of the trial up to that stage. The Court adopted, at p.745, as correct the following passage from the decision of the English Court of Appeal in R v Howson[5]:
"A judge conducting a criminal trial has of course a paramount duty to ensure that the accused is fairly treated, but he also has a duty to the community as a whole to ensure that the administration of justice is not unnecessarily impeded."
28 The approach of the New South Wales Court of Appeal in McHardie & Danielson was referred to and followed by the South Australian Court of Criminal Appeal in R v Jones[6]. In that case the accused was charged with wounding with intent to do grievous bodily harm. A lengthy voir dire was held at the commencement of the trial. After his trial commenced, the accused attended the first day but then failed to appear thereafter. The trial judge refused to adjourn the trial and it proceeded on the second day and concluded on the fifth day of the trial. The trial judge then charged the jury who returned a verdict of guilty. The accused was sentenced to four years and six months' imprisonment.
29 The Court of Criminal Appeal held that the trial judge had not erred in the exercise of his discretion in determining to continue the trial notwithstanding the absence of the accused. Lander, J, with whose judgment Prior, J and Wicks, J agreed, stated the relevant principles as follows at p.412; 295:
"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."
On the next page, pp.413; 296 Lander, J then proceeded to observe:
"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 that at some time during the 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."
30 In R v O'Neill[7] the accused was charged with aggravated serious criminal trespass in a place of residence. He failed to appear on the fourth day of his trial. The trial judge determined that the trial should proceed. The remaining Crown evidence completed on that day in the accused's absence. On the next day the accused again failed to appear. Counsel addressed the jury and the judge summed up. He directed the jury that they should draw no adverse inference against the accused arising out of his absence. The jury returned a verdict rejecting the allegation of aggravation but convicting the accused of serious criminal trespass in a place of residence. On appeal the South Australian Full Court followed Jones's case and held that as the accused's absence from trial was voluntary, the trial judge did not err in exercising his discretion to proceed with the trial in his absence.
31 Martin, J at p.367 observed:
"The absence of evidence from the accused was caused by a deliberate choice made by the accused during the trial. The accused's voluntary decision to be absent from the trial is taken to be a waiver of his right to be present; see R v Jones at 295. In that situation there is considerable force in the proposition that the accused has thereby waived the right to give evidence. When an accused makes a conscious decision concerning the conduct of the trial, there are sound reasons of policy why the accused should be bound by that conduct and by the result of the trial even if the decision was unwise."
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.
[1] [1933] AC 699 at 708.
[2] [1895] VicLawRp 73; (1895) 21 VLR 343 at 347-8.
[3] [1953] VicLawRp 79; [1953] VLR 590.
[5] (1981) 74 Cr App R 172 at 179.
[6] [1998] SASC 7021; (1998) 72 SASR 281, 104 A Crim R 399.
[8] Unreported, Supreme Court of Victoria, 23 March 2006.
R
Serrano
(1998) 72 SASR 281
(2002) 81 SASR 359