Director of Public Prosecutions (NSW) (Crown)
Criminal Defence Group (Accused)
File Number(s): 2020/00315451 & 2021/00182538
[2]
REVISED EX TEMPORE JUDGEMENT on the application made on behalf of the accused, that this jury be discharged
[3]
INTRODUCTION
Robert Sloan, as he is now named, is before the Court for trial upon six counts.
Count 1 is a charge of stalking and intimidation contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007.
Count 2, a charge of detention to obtain psychological advantage contrary to s 86(1)(b) Crimes Act 1900.
Count 3, use of an offensive weapon with intent to commit the offence of intimidation contrary to s 33B(1)(a) Crimes Act 1900.
Count 4, threaten to cause detriment, namely, injury to Tyron Smith in an attempt to influence that person to not attend as a witness in the current proceedings contrary to s 322(a) Crimes Act 1900.
Count 5, a charge in identical terms contrary to the same provision.
Count 6, the doing of an act with intent to pervert the course of justice contrary to s 319 Crimes Act 1900.
[4]
THE PROCEEDINGS
The matter came before my Court on Wednesday, October 5, 2022. There was an application by the Crown then to vacate the trial because of further material that had been harvested and was undergoing preparation for service on the accused's representatives and for the trial, and to support the further count on the indictment, count 6, presented ex officio.
The application to vacate was opposed; correctly, in my view. The accused has been awaiting this trial for almost two years, in custody and refused bail. I know that he is also on remand at the present time for a charge of murder, presently with the Local Court, and that bail was refused in respect of that. He remains an unconvicted person in respect of all matters and therefore, it is unconscionable that he should be required to remain in custody for such a long period of time awaiting the outcome of any of the matters that are listed against him.
Some issues arose after the trial came to my Court regarding documents that were sought from the Commissioner of Police. A representative of the Commissioner attended, and in consultation with counsel for the accused whatever issues that were extant in respect of the subpoena were resolved and documents were provided.
A significant amount of evidence was led on the voir dire by both the Crown and the accused. Two witnesses were required for cross‑examination upon one of the questions at least that the Court had to resolve.
The issues before the Court for determination prior to a jury being called were whether the Crown application for evidence of the complainant and his partner could be led by audio visual link from a location remote from the Courtroom, whether, upon the Crown application, the Crown may rely upon evidence for the purposes of tendency in accordance with s 97 Evidence Act 1985, and whether, upon the accused's application, there should be severed from the indictment counts 4, 5 and 6, with the trial to continue upon counts 1, 2 and 3.
There was a great deal of material presented in the evidence and regarding the authorities expressing principles relevant to these questions. I considered the material and announcing yesterday that I had come to the view that the application for the evidence of the two witnesses to be adduced by way of audio‑visual link be granted, and that the application to sever from the indictment counts 4, 5 and 6 be refused. I did not make formal orders, as I was reminded this morning; not by way of criticism but to support the submissions made upon the present application in the interests of procedural fairness.
The question of tendency evidence though presented some complexity, and I was not, upon the material so far provided, of the view that the Crown should be permitted to use the evidence offered for tendency purposes. There was some brief discussion about that. The Crown wanted the opportunity to consider my remarks before I expressed a concluded view, and, to consider the terms of s 94 Evidence Act 1985 to which I invited both counsel. This is a matter that is yet to be resolved and further submissions are anticipated in respect of that question.
[5]
THE APPLICATION TO DISCHARGE
When I announced the decisions that I intended to formalise upon the issue of evidence via AVL and the severance of the final three counts on the indictment, counsel for the accused rose to inform me that he had received instructions which, as I perceived the matter came from the floor of the Court, that the decision indicated with regard to the audio‑visual link was to be the subject of an application pursuant to s 5F Criminal Appeal Act 1912.
The parties were informed of a relatively recent memorandum published by the Chief Judge of this Court with reference to RKF v The Queen [2016] NSWCCA 116, in which RA Hulme J encouraged practitioners in proceedings where a s 5F application was contemplated to take steps to expedite the application in conjunction with inquiries of the Registry of the Court of Criminal Appeal, to limit the disruption to the ongoing trial. The Chief Judge of this Court in his memorandum reminded all judges of the Court that:
"trials should not be vacated because the parties have informed the judge that an appeal is to be made against an interlocutory judgment or order".
Counsel helpfully provided a reminder of what RA Hulme J said in that case. He referred to the discussion offered as obiter, not intending to discourage the Courts from forcing trials to proceed heedless of the rights of the accused to seek a review of an interlocutory decision.
In the circumstances of this case, it was noted that the jury had been empanelled but had had no material provided to them other than the brief outline of the case by the Crown during the selection process and the preliminary directions that I gave them in anticipation of what was to follow, beginning with the opening by the Crown Prosecutor. They have heard no evidence. It was submitted that in the circumstances, it would involve limited disruption if I were to grant the application made to discharge the jury from further service to allow the trial to resume next week once my reasons for the decisions are placed on Caselaw so that advice can be given by counsel retained by the Legal Aid Commission to address the merits of the application proposed in the Court of Criminal Appeal, and also, to allow that process to follow if a grant of legal aid is forthcoming.
One way or another, and notwithstanding that there are other appeals pursuant to this provision pending in the Court of Criminal Appeal at the moment, it is anticipated that all going well, if Legal Aid is forthcoming, the matter could be listed in the Court of Criminal Appeal next week and, subject to their Honours' availability and capacity to provide a judgement, there would be no reason why the trial could not begin with another jury next week or perhaps the week after.
Part of the difficulty in this case has been the manner in which these issues have evolved. The issues have amplified as time has progressed to the present point. There are in addition to those questions which were initially before me, further challenges to evidence of the discovery of a weapon said to be in the possession of the accused, and whether that is evidence that ought to be permitted in the trial. This is a matter that still awaits decision in addition to that which I have adverted.
The judgement in these matters is of significant length because of the nature of the challenge to the evidence sought to be adduced via AVL. There is an array of material provided including the Crown case statement, and part of another Crown case statement relevant to the accused's murder prosecution.
There was extensive cross‑examination of the complainant, and significant cross‑examination but less substantial delivered to the complainant's partner, who were called on the voir dire. Those matters need to be addressed. There are telephone intercepts of some length, which are before me, to which I must refer in respect of the audio-visual link application. So, doing the best I can, the lengthy judgement which I have prepared is not quite complete. It is in the process of being engrossed into the format suitable for Caselaw. I hope to have it on that system later this afternoon but If not then, certainly by tomorrow morning. It will be part of the intended entire judgement, confined to those issues which I know now are to be agitated in the Court of Criminal Appeal, namely, the application for AVL evidence, and the severance question. The balance I shall defer until later. The material to be resolved before those other issues I must review as a matter of urgency to facilitate the accused's intention and to allow the expeditious resumption of the trial.
[6]
DECISION
Accordingly, and noting the Crown's fair concession made in respect of this, I propose to grant the application that this jury be discharged. I propose that the matter adjourn until tomorrow morning at 10 o'clock to monitor progress and then thereafter, it will adjourned day‑to‑day next week until we are in a position one way or the other to call forth another panel, select a jury and get the trial under way.
[7]
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Decision last updated: 29 November 2022