Slotboom v R

The Application for Leave to Appeal 13The sole basis upon which adjournment of the trial was sought on 29 January 2013 was to defer the trial of the Applicant (who is on bail) until the Court of Criminal Appeal had heard and determined an appeal against conviction by Shamoun which, so the trial Judge and this Court were informed, would include a ground of appeal that the verdict of guilty of murder was unreasonable or could not be supported by the evidence. If this ground was made out, the Court of Criminal Appeal would be asked to acquit Shamoun of murder. 14A premise of the application was that, given the way in which the Crown has put its case, if Shamoun was acquitted of the murder of Mr Carruthers, then the Applicant, whom the Crown alleges directed the attack upon Mr Carruthers, could not be liable to conviction for the murder of Mr Carruthers. 15As the Crown case had been conducted at the first trial upon the basis that the Applicant could not be convicted of murder if Shamoun was acquitted, it was argued that the Applicant's trial should not proceed until the Court of Criminal Appeal had determined whether Shamoun's murder conviction should stand. 16Mr Dhanji SC, counsel for the Applicant before this Court, developed submissions in support of three proposed grounds of appeal: (a) Ground 1 - His Honour failed to have regard to a relevant consideration, that is the prejudice to the Applicant arising from refusal of the application. (b) Ground 2 - His Honour placed too much weight on case management to the exclusion of other factors. (c) Ground 3 - His Honour's decision was unreasonable or plainly unjust, in that real injustice would be occasioned to the Applicant if the adjournment was not granted. 17It was submitted by Mr Dhanji SC that the primary Judge had focused on the issue of delay in his judgment refusing the adjournment, but had failed to balance competing considerations which were relevant to the discretionary decision to be made. It was submitted that his Honour failed to have regard to the prejudice to the Applicant which was said to arise in the following ways: (a) the Applicant's trial was likely to conclude well before Shamoun's appeal is heard and, if the Applicant is convicted, he faced a lengthy period in custody in circumstances where, if Shamoun is subsequently acquitted by this Court, the impact of that judgment will be that the Applicant should have been acquitted at his first trial; (b) the Applicant at this trial is not able to cross-examine the central Crown witness, David Saad, about his evidence that Shamoun was the killer and the Applicant is not able to put a positive case that Shamoun was not the killer; (c) in the event that the Applicant is convicted and Shamoun is acquitted by this Court on appeal, there will be an inconsistency between that acquittal and the conviction of the Applicant - quite apart from questions of incontrovertibility and abuse of process, the inconsistency will tend to bring the system of criminal justice into disrepute. 18Whilst acknowledging that delay was a relevant consideration, Mr Dhanji SC submitted that the likely delay before this Court determined Shamoun's conviction appeal was not a decisive factor, given the delay by the Crown in taking four-and-a-half years to bring the Applicant to trial and the fact that the key Crown witnesses had all provided statements and given evidence on several occasions. 19Mr Dhanji SC noted that the Crown had sought to change its position for the purpose of the retrial, by contending that it would be open to the jury to convict the Applicant even if it was not satisfied beyond reasonable doubt that it was Shamoun who was responsible for the killing. Referring to R v King (1985) 17 A Crim R 184 at 188-189 and King v The Queen (1986) 161 CLR 423 at 433, Bellew J ruled (at [30]-[48]) that the Crown ought not be permitted to present its case at the retrial upon a different basis, so that a direction would be given that it was necessary for the jury to be satisfied that Shamoun killed Mr Carruthers before the Applicant could be convicted of murder. Mr Dhanji SC submitted that the Crown's desire to change its case should lead the Court to conclude that there was a real question as to whether Shamoun had killed Mr Carruthers, and thus there was substance in Shamoun's conviction appeal. 20The Crown submitted that leave to appeal should be refused in circumstances where the application was based upon what were, at best, two possibilities - firstly, that Shamoun would proceed with an appeal to this Court and secondly that, if he did, that he would be acquitted by this Court following that appeal. 21The Crown pointed to the consequence that a further delay in the trial may serve to erode recollections of witnesses to be called at the trial. 22The Crown emphasised, as well, the need for exceptional circumstances before this Court would grant leave to appeal under s.5F from a discretionary determination declining to adjourn a trial.