State of Tasmania v Bosworth [2005] TASSC 29, 153 A Crim R 278, followed.

R v McHardie and Danielson [1983] 2 NSWLR 733, R v Jones [1998] SASC 7021; (1998) 72 SASR 281, 104 A Crim R 399, applied.

Judgment Number: [2018] TASSC 13

1. The accused, Nathan Davidson, was arraigned on 14 March 2018 on one count of trafficking in a controlled drug and six counts of dealing in property suspected of being proceeds of crime. His trial continued before a jury until, on 20 March 2018, after four days of hearing before the jury, the accused did not appear in answer to his bail. No explanation for his absence has been advanced. His counsel has not been made aware of any reason for her client's non-appearance, is without instructions, and has withdrawn. I issued a warrant for the arrest of the accused. I allowed until the afternoon of Wednesday, 21 March 2018, for him to appear, or for his attendance to be secured, but to no avail. For the following reasons I rule that the trial is to proceed despite the absence of the accused and his counsel.
2. The case against the accused on the trafficking charge is that, between 24 October 2014 and 2 December 2014, he trafficked in cannabis, methylamphetamine, methylphenidate and morphine. The State contends that during that period the accused carried on the business of trafficking in drugs. It does not rely on any of the evidentiary presumptions in the Misuse of Drugs Act 2001, s 12. On the remaining counts it is alleged that on 2 November, 11 November, 21 November, 25 November (twice) and 2 December 2014, the accused dealt with, by having possession of, property suspected of being proceeds of crime. The prosecution case against the accused is not closed. The evidence has mostly been given, but some remains. The accused has not yet been put to his election. That is a factor of some import in this case because the nature of the charge of dealing with property suspected of being the proceeds of crime is that the accused may, if the prosecution proves the elements of the crime, establish a defence if he proves on the balance of probabilities that he had no reasonable grounds for suspecting that the property was substantially derived or realised from a criminal act. With the exception of one witness of little consequence, the evidence, both so far given and remaining to be given, is not the subject of dispute. It is mostly in the form of evidence of police officers, agreed facts or photographs. Little depends upon the credibility or reliability of witnesses. For the most part, whether the prosecution case is proved depends on the inferences to be drawn from the evidence. In brief summary the jury heard evidence adduced before the accused's non-appearance, capable of proving that:
   • at about 2.40am on 2 November 2014 a car being driven by the accused was intercepted by the police. He attempted to run off but was found in possession of, either in his car or on his person, $800 in cash, valuable gold chains, two very valuable watches, two small bags of morphine powder and a larger bag of methylamphetamine which had been concealed in his trousers. There is unchallenged evidence that the two watches were stolen from the same man in August 2014;
   • on 7 November 2014 a motor cycle the accused was riding, with a female as a pillion passenger, was pulled over by the police in Perth. The female was searched and found in possession of two small bags of methylamphetamine;
   • on 11 November 2014 the police searched a unit at a storage facility at Killafaddy Road in Launceston. While they were there the accused arrived in a vehicle. Inside the unit the police found a large amount of goods. The contents of the unit included property which had been stolen over the course of the previous months;
   • at about 10.55am on 24 November 2014 a vehicle being driven by the accused was intercepted by the police in Glen Dhu Street in Launceston. The accused was found in possession of a plastic container containing morphine powder and 12 tablets. He was arrested. When waiting in the laneway outside the charge room at the police station he ran from the police and attempted to tip into a drain the contents of a bag of methylamphetamine which had been concealed in his trousers;
   • on 25 November 2014 the police searched a unit at a storage facility at 8 Pateena Road, Travellers Rest. They found items which the jury could reasonably conclude were stolen, including a large volume of power tools, other tools and dental bibs;
   • on the same day, 25 November 2014, the police searched a unit in a storage facility at The Door of Hope Church building, formerly Coats Patons, in Launceston. As with the unit at Killafaddy Road, the contents of the unit included property which had been stolen over the course of the previous months;
   • on 2 December 2014 police officers searched a unit in South Launceston. The accused was present with the same female who was with him on the motor bike at Perth on 7 November. The police found items at the unit which the jury may reasonably conclude were stolen.
3. A crucial part of the prosecution evidence is audio recordings of intercepted phone calls. The jury has spent many hours listening to the recordings during the course of the trial. The State's case is that the accused is one of the participants in each of the phone calls. To me, the evidence of the dates, times and contents of the phone calls, when considered with the other evidence, provides overwhelming evidence that the person heard in the phone calls is the accused, and of his guilt of the charges. The nature and effect of the evidence the jury heard on Monday, 19 March, in the afternoon, led me to consider whether the accused's bail should be revoked. I did not act on my concern, but my fears about what the effect of the evidence may be on the accused were realised when he failed to appear the next day. In the phone calls the accused makes statements consistent only with the purchase and sale of methylamphetamine, morphine and cannabis during the period of the indictment. His statements establish beyond doubt his connection, at the relevant time, to the stolen watches and the items stored at least in the Killafaddy and Door of Hope Storage facilities, and the effect on him of the seizure of those goods by the police.
4. It is a fundamental aspect of a criminal trial that the accused should be present to hear and reply to every allegation and argument urged against him or her by witnesses and counsel for the prosecution. The presence of the accused throughout the trial has generally been regarded as essential. I need only refer to the reasons of Crawford J (as he then was) in State of Tasmania v Bosworth [2005] TASSC 29, 153 A Crim R 278 at [17]. The reason for this extends beyond the practical desirability of enabling the accused to provide instructions to counsel. In R v Abrahams [1895] ArgusLawRp 62; (1895) 21 VLR 343, a decision of the Victorian Full Court, Hood J expressed the requirement of the presence of the accused as follows:

"I think that not only has an accused person a right to be present during the hearing of any proceedings against him, but as a rule, which should never be departed from except under special circumstances, he is also bound to be there. 'The object of a trial is the administration of justice in a course as free from doubt or chance of miscarriage as merely human administration of it can be; not the interests of either party': R v Bertrand. That being so, unless the accused be present to defend himself, or to instruct those who are defending him, no one could feel any confidence in the correctness of any result adverse to him, nor feel satisfied that justice had been fairly done."

1. In Tasmania, the requirement that an accused be present during his trial is dealt with in the Criminal Code, s 369, which provides:

"(1) The trial of an accused person shall take place in his presence, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which case the judge may order him to be removed, and may direct the trial to proceed in his absence.

(2) The judge may, in any case, if he thinks fit, permit a person charged with a crime to be absent during the whole or any part of the trial on such conditions as the judge thinks fit, and may, if he thinks fit, grant him bail for that purpose."

1. In Bosworth, Crawford J concluded, after a review of the provision and the authorities, that there is no absolute rule that prevents the Court from conducting hearings in the course of its criminal jurisdiction in the absence of the accused person. Generally speaking, it has a discretion whether to do so or not, subject of course to the requirements of the Code, s 369. I apply his Honour's conclusion. A similar conclusion was reached by the Court of Criminal Appeal in R v McHardie and Danielson [1983] 2 NSWLR 733, that if an accused fails to appear at the trial after it has started, the trial judge has a discretion whether or not to continue with the trial or discharge the jury. Because the right of an accused to be present at his or her trial is fundamental, the authorities strongly support the proposition that the discretion should be exercised sparingly and with reluctance. There are a number of factors which favour discharge of the jury in this trial. Counsel will not be present to represent the interest of the accused, to cross-examine any remaining witnesses, to give advice concerning his election, and to make a closing address to the jury. Here, most of the witnesses are police officers and could readily give evidence again if required. The photographic evidence can easily be led again. Other evidence is in the form of agreed facts, although the position may not be the same in any future trial. The jury can be directed in strong terms that they must be satisfied of guilt beyond reasonable doubt on the basis of the evidence adduced by the State, but there is a real chance that they will be influenced by the failure of the accused to appear, and draw inferences adverse to him as a result. His defence may be prejudiced as a result of the matters to which I have referred.
2. However, there are other factors which persuade me towards continuation of the trial in the absence of the accused. The case has already occupied five sitting days. During that time the witnesses and the jury have been put to inconvenience, and the resources of the Court and the State have been called upon. Other trials have been delayed while this one is heard. If the jury was discharged there would be an impact on the administration of justice.
3. An accused may waive his right to be present and be legally represented during a trial. In R v McHardie, the New South Wales Court of Criminal Appeal held 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". A similar approach to waiver was taken by the Court of Criminal Appeal in South Australia in R v Jones [1998] SASC 7021; (1998) 72 SASR 281, 104 A Crim R 399. In Jones, Lander J, with whom Prior and Wicks JJ agreed, stated:

"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 at some time during a 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. "

1. While explaining that the discretion to proceed in the absence of the accused should be exercised sparingly, Lander J held that, in that case, there had been no miscarriage of justice in continuing the trial in the absence of the accused in that case. His Honour said at 412:

"[A] 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."

1. In Mokbel [2010] VSCA 11, 30 VR 115, 124-5 [40]-[42], the Court of Appeal in Victoria made clear that the "essential principle" requiring the accused's presence is subject to the qualification that the right to be present may be waived. In R v Bonacci [2015] VSC 121, Kaye JA stated that the right to be present is not an inflexible rule, but admits of exceptions such as where an accused person has deliberately absented himself by absconding on bail during the trial, which may constitute a waiver by the accused of his or her right to be present at the trial. The principles have more recently been applied by the Victorian Court of Appeal in Taupati v The Queen [2017] VSCA 106.
2. In this case the accused is a competent adult male. He did not attend the trial alone. At various stages his partner and daughters have been present. One of his daughters is his surety. Putting aside the remote chance that he has been kept away from the trial against his will, the absence of an explanation for his non-appearance excludes the possibility that it is due to illness or unforeseen misadventure. The only reasonable conclusion is that he has voluntarily and deliberately absented himself from the trial, and that he did so in order to frustrate the trial process. I find that the accused has, by his non-appearance, demonstrated that he has no intention of putting forward a defence, and he has voluntarily, deliberately and unequivocally waived his right to be present.
3. I am not, in the exercise of my discretion, obliged to accept the waiver. The risk of a miscarriage of justice must be assessed. I see little risk in this case. The rights of the accused can be safeguarded by the manner in which the balance of the trial is conducted and through the accused's right to appeal to the Court of Criminal Appeal if he is found guilty. Thus far, the case has been conducted by counsel for the State with the utmost fairness. I see no reason to conclude that this would not continue. On the information I have been given nothing turns on the credibility or reliability of the principal remaining prosecution witness, the senior investigating officer in this case. Some evidence from the current police witness remains outstanding, but the same applies to that evidence. As to the principal remaining witness, she will relate the result of searches and the accumulation of evidence. The absence of cross-examination is unlikely to result in injustice to the accused. As I have already commented, I see the strength of the prosecution case as overwhelming. It is likely that it is recognition that the prospects of acquittal are remote which prompted the accused to abscond. In light of the evidence of the accused's statements in the recorded phone conversations, there is little prospect that he could discharge his onus of establishing that he had no reasonable grounds for suspecting that the property was substantially derived or realised from a criminal act.