The accused in this matter has pleaded not guilty to a charge that, jointly with a person to whom I will refer as "HG", he did an act or acts in preparation for a terrorist act or acts.
The accused is presently self-represented, having withdrawn instructions from his previous lawyers a little over a week ago. A perusal of the transcript of the trial since that time reflects the fact that the accused has repeatedly engaged in what could only be described as belligerent and obstructive behaviour, and has gone to considerable lengths in an apparent attempt to disrupt the conduct of the trial. He has made a number of applications for the discharge of the jury and for a stay of the proceedings, all of which have been refused. He has also persistently asserted that the trial has been conducted unfairly. For reasons articulated in a separate judgment, I am not persuaded that that is so.
When the proceedings concluded last Friday the accused remained part way through his evidence-in-chief. When the proceedings resumed this morning in the absence of the jury, he again asserted that the trial process was unfair, and indicated that he wished to bring proceedings before the Court of Criminal Appeal. [1] I informed him that the trial would continue, and gave him several opportunities to resume his evidence-in-chief. He repeatedly refused to do so. [2]
Following a short adjournment, the accused refused to leave his cell and return to the courtroom. [3] At my direction, he was physically dragged into court by no less than four officers from Juvenile Justice. Having entered the dock the accused chose to lie on the floor, out of my sight as well as that of the Crown and the jury. [4] I gave the accused a number of opportunities to address his behaviour and resume his evidence-in-chief, all of which met with no response. [5] I then determined that the trial should proceed to its next stage, namely the accused's cross-examination by the Crown. [6]
When the jury were brought into court, I explained that although they could not see the accused from the positions in which they were sitting, he was in fact in court, lying on the floor of the dock. [7] I also told the jury that no adverse inference should be drawn against the accused as a consequence of the fact that he had chosen to behave in that way. [8]
The Crown then commenced his cross-examination of the accused by asking him a question regarding the purchase of knives, an event which is central to the Crown case. [9] There was no response to that question by the accused. I directed the accused to answer the question. The accused refused to comply with my direction.
The jury then left the courtroom. In their absence, I reminded the accused that his failure to answer questions could amount to a contempt, which was a serious criminal offence punishable by a term of imprisonment. I inquired of the accused at that stage as to whether he proposed to adopt the same attitude to any further questions asked by the Crown. Again the accused refused to respond. [10] The only available inference in the circumstances was that this was the course the accused proposed to adopt in answer to further questions.
As a consequence of these events, a number of issues now arise.
The first is whether, notwithstanding the accused's behaviour and his anticipated response (or anticipated lack of response) to the Crown's further questions, the Crown is bound to put its case to him. It seems to me that that is both an appropriate and necessary course, although for the reasons that I have already given, it can be reasonably anticipated that the accused will not answer any questions which might be put to him.
The second issue is what course should be taken regarding the accused's prima facie contempt. That issue can be addressed two ways. Firstly, the Court can take steps to deal with it itself. Alternatively the Court can follow the course set out in Part 55 of the Supreme Court Rules 1970 (NSW) (the Rules).
I am mindful of the fact that if this Court were to deal with the matter, there may be a further delay occasioned in the conduct of this trial which has already been subject to significant delays as a consequence of (inter alia) the accused's behaviour. Dealing with the contempt issue is not urgent. In those circumstances, I propose in due course to make orders pursuant to Part 55 of the rules referring the matter to the Registrar.
The third issue, assuming that the accused will refuse to answer the Crown's further questions, and assuming further that the trial is to proceed to its next stage, is what course should be taken in terms of any final address to the jury by the Crown, in circumstances where the accused is self-represented.
The issue of whether the Crown should be permitted to address the jury in those circumstances was addressed by the Court of Criminal Appeal in R v E J Smith. [11] In the course of its judgment, the Court considered whether it was a rule of law that where an accused person was self-represented, his or her trial would miscarry if the Crown were permitted to address the jury at the conclusion of the evidence. Street CJ (with whom Nagle CJ at CL and Maxwell J agreed) made the following observations: [12]
The trial judge ultimately has such discretionary authority over the course of proceedings in the trial as will ensure the trial is fair in all respects. Fairness is not a one-sided concept. It is a dual concept involving fairness to accused persons and fairness to the public through the prosecuting agency of the Crown. Where a judge thinks that the usual practice should be relaxed in a particular case, then in my view, he has a discretion to give effect to that opinion.
In reaching that conclusion, Street CJ declined to follow the judgment of Bray CJ in R v Turner, [13] in which his Honour concluded that a trial judge did not have a discretion to allow the Crown to address. Street CJ said: [14]
I ... dissent from the opinion expressed by Bray CJ. The decision in R v Turner is not to be regarded in this State as authority for the proposition therein stated. The law in this State is that the trial judge has a discretion in the matter which will, of course, be exercised against the background of a long-standing and usual practice.
The "long-standing and usual practice" to which his Honour referred was the practice of the Crown not addressing the jury in such circumstances.
In a subsequent decision of R v Zorad, [15] the Court of Criminal Appeal noted that it had been determined in Smith that although there had been a practice in New South Wales whereby the Crown did not address in circumstances where an accused was self-represented, it was not a rule of practice, much less a rule of law. [16] The Court (Hunt J (as his Honour then was) Enderby J and Sharpe J) then said: [17]
We see no reason to depart from this Court's decision in Smith's Case. The practice that the Crown Prosecutor does not make a closing address where the accused is unrepresented appears originally to have arisen because it was thought to be unfair to an accused who could not afford representation that he should be pitted against a trained advocate in the final stages of the trial. With the ready availability of legal aid at the trial stage, however, there must be at least some question whether such an approach continues to be appropriate. There is an increasing tendency of accused persons, with long experience of the criminal justice system electing to dispense with legally aided professional representation in order to obtain certain tactical advantages, but in our view the practice needs to be reconsidered whatever the purpose may have been of the election to appear unrepresented.
This is not the case in which to undertake such a reconsideration. We should add, however, that nothing which we have said should be interpreted as suggesting that an accused should suffer an added disadvantage because of his election to appear unrepresented. That election is a fundamental right which should not be interfered with. What we are concerned to point out is that, with the availability of legal aid (so that the election is no longer dictated by financial considerations), an accused who nevertheless makes that election should not expect to be given an advantage which is not given to an accused who is represented.
Accepting its continued application, the practice in this State permits both the judge and the jury to have the assistance of an address from the Crown Prosecutor particularly where the factual issues are complicated. That is, as Street CJ said in R v E J Smith, a matter of fairness to the Crown and to the public on whose behalf it prosecutes. In those cases where the accused has elected to appear unrepresented (whether or not in order to obtain tactical advantages), such complication is more likely - if only because of the way in which such a trial is inevitably conducted.
In every case, the decision whether the Crown Prosecutor should exercise his right to make a closing address is for the trial judge to make in the exercise of his discretion.
The observations of the Court in Zorad regarding an accused person who chooses to dispense with legally aided representation are apt in this case, although in noting that I do not suggest (much less conclude) that the accused in the present trial did so in an attempt to obtain some tactical advantage. My knowledge of the circumstances in which the accused withdrew his instructions from his lawyers is limited to what I was told by senior counsel which was in the following terms: [18]
Your Honour, my client has instructed me that he no longer wishes me and Ms Burrows to represent him. He wishes to represent his own case from this point onwards. I, therefore, seek your Honour's leave, on behalf of myself and Ms Burrows, for both of us to withdraw from this trial.
That statement was made in the presence of the jury, senior counsel having previously told me (in the jury's absence) that the accused "wishes to appear in future for himself". [19]
However, it is relevant that in Zorad, the Court emphasised that with the availability of legal aid, an accused who elects to withdraw his instructions from his or her representatives should not expect to be given an advantage which is not given to an accused who is represented. [20]
The facts in the present trial could not be said to be overly complicated. However, a significant amount of evidence has been adduced by the Crown in support of them. In my view, the volume of that evidence is such that the jury would benefit from an address by the Crown Prosecutor, partly by reference to a chronology with which the jury were provided at the commencement of the trial setting out how the Crown puts its case.
For those reasons, and in the exercise of my discretion, I propose to allow the Crown Prosecutor to make a final address to the jury. Needless to say, the accused will also be given the opportunity to address the jury if he wishes to do so.
I make the following orders:
1. Pursuant to Part 55 Rule 11(1) of the Supreme Court Rules 1970 (NSW), I direct the Registrar to apply by motion for, or to commence proceedings for, the contempt of Court which has been prima facie committed by the accused today.
2. For the purposes of order 1, I direct that a copy of this judgment, and a copy of the transcript of today's proceedings, be provided to the Registrar.
3. In the exercise of my discretion, I allow the Crown Prosecutor to make a final address to the jury.
See T1472 - T1473. Also see T1511.25 and T1515.10 - T1515.15.
T1474.33 - T1474.46.
T1478.8 - T1478.11.
T1479.16 - T1479.17 and T1481.3.
T1480.42 - T1480.43 and T1481.10 - T1481.11.
T1485.7 - 1485.10.
T1485.12 - T1485.15.
Commencing at T1486.34.
Commencing at T1488.3.
[1982] 2 NSWLR 608.
At 616.
(1977) 16 SASR 444.
At 616.
(1990) 19 NSWLR 91.
At 94.
At 94.
At T1146.41 - T1146.44.
T1132.3 - T1132.6.
At [95].
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Decision last updated: 08 April 2020