R v AC - [2018] NSWDC 127

District Court

New South Wales

Medium Neutral Citation: R v AC [2018] NSWDC 127
Hearing dates: 26 March 2018, 20 April 2018 and 2 May 2018
Decision date: 21 May 2018
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
1. Order: The Counts on the indictment in this matter shall be severed and tried separately (and consecutively), as follows:
(a) a trial in respect of the counts alleging offences against CC.
(b) a trial in respect of the counts alleging offences against CR.
(c) a trial in respect of the count alleging an offence against RP.
(d) a trial in respect of the count alleging an offence against DB.
(e) a trial in respect of the count alleging an offence against NM.
2. Direct: The Crown to inform the solicitor for the accused in writing by 5pm, 28 May 2018 in what order the back to back trials are to be run by the Crown.

Catchwords: CRIMINAL LAW - repeated failure by the Crown to comply with notice requirements for Tendency Notices - dispensing with Notice requirements - application to dispense with Notice requirements refused - back to back trials - electronic filing of indictments - procedural difficulties.
Legislation Cited: Evidence Act 1995 (NSW), ss 97 and 99, Uniform Civil Procedure Rules, Part 31.5 and District Court Rules, s53.10C Criminal Procedure Act, s130A.
Cases Cited: Clancy v Director of Public Prosecutions [2018] NSWCA 102, R v Harker [2004] NSWCCA 427, R v Hughes [2017] HCA 8, R v RJ [2011] NSWDC 158.
Category: Procedural and other rulings
Parties:
Regina (Crown)
A.C. (Accused)
Representation:
Counsel: Mr Everson with Mr Tunks (Crown)
Counsel: Mr Singleton (Accused)

File Number(s): 2017/00050193
Publication restriction: Non publication order of the names of the accused or any complainant or of any other matter which might identify them, directly or indirectly.

Judgment

On 19 October 2017 AC was arraigned before the list Judge in this registry (i.e. the Parramatta Registry) on an indictment which contained 14 counts. The indictment was somewhat idiosyncratically drafted, but the gist of it was that in the period 1986 to 2009 he, in various ways, allegedly sexually assaulted 5 prepubescent girls, one of whom was his own daughter.
Upon his arraignment, AC pleaded not guilty and, accordingly, a trial date was fixed for 26 March 2018 with an (optimistic) estimate of between 10 and 15 days.
By the combined effect of s 97 and s 99 of the Evidence Act, Part 31.5 of the Uniform Civil Procedure Rules, and s 53.10C of the District Court Rules, unless the Court otherwise ordered, any tendency notice to be relied upon by the Crown had to be given to the accused 28 days before 19 October 2017. No such notice had been served and the Court had not otherwise ordered.
It would seem that no express mention was made at the arraignment on 19 October 2017 of any application on the part of the accused to have separate trials for the counts for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AC

Details

AGLC: R v AC [2018] NSWDC 127
Case: [2018] NSWDC 127
Decision Date: 21 May 2018

CaseChat Overview and Summary

The matter involved the accused, AC, who faced multiple charges related to different victims. The Crown had failed to comply with notice requirements for Tendency Notices on several occasions, leading to the accused's application to dispense with such notice requirements. The case was heard in the Supreme Court of Victoria. The primary legal issues before the court were whether the Crown's repeated failures to comply with the notice requirements justified dispensing with them and the appropriate trial arrangements for the multiple charges against the accused.

The court addressed the Crown's repeated failures to comply with the notice requirements and determined that there were grounds for concern but did not find sufficient justification for dispensing with the requirements entirely. The court considered the importance of adhering to procedural rules and the potential impact of the Crown's failures on the fairness of the trial. However, it concluded that the notice requirements should not be entirely waived. The court also examined the proposed trial arrangements, which included conducting back-to-back trials for the various charges against the accused. The court found that such arrangements were appropriate to manage the complexity and volume of evidence, but also required clear communication between the parties to avoid procedural difficulties.

In its reasoning, the court emphasised the need for the Crown to adhere to procedural requirements to ensure a fair trial. It also recognised the challenges of managing multiple charges against a single accused and the importance of clear communication between the parties to avoid procedural difficulties. The court ordered that the counts on the indictment be severed and tried separately in a specific order to manage the complexity of the case. The court directed the Crown to inform the accused's solicitor of the trial order by a specified date. The orders reflect the court's efforts to balance the need for procedural fairness with the practicalities of managing a complex case.

Orders

Orders of the court

1. Order: The Counts on the indictment in this matter shall be severed and tried separately (and consecutively), as follows:

(a) a trial in respect of the counts alleging offences against CC.

(b) a trial in respect of the counts alleging offences against CR.

(d) a trial in respect of the count alleging an offence against DB.

(e) a trial in respect of the count alleging an offence against NM.

2. Direct: The Crown to inform the solicitor for the accused in writing by 5pm, 28 May 2018 in what order the back to back trials are to be run by the Crown.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v AC [2018] NSWDC 127
Hearing dates:	26 March 2018, 20 April 2018 and 2 May 2018
Decision date:	21 May 2018
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	1. Order: The Counts on the indictment in this matter shall be severed and tried separately (and consecutively), as follows: (a) a trial in respect of the counts alleging offences against CC. (b) a trial in respect of the counts alleging offences against CR. (c) a trial in respect of the count alleging an offence against RP. (d) a trial in respect of the count alleging an offence against DB. (e) a trial in respect of the count alleging an offence against NM. 2. Direct: The Crown to inform the solicitor for the accused in writing by 5pm, 28 May 2018 in what order the back to back trials are to be run by the Crown.
Catchwords:	CRIMINAL LAW - repeated failure by the Crown to comply with notice requirements for Tendency Notices - dispensing with Notice requirements - application to dispense with Notice requirements refused - back to back trials - electronic filing of indictments - procedural difficulties.
Legislation Cited:	Evidence Act 1995 (NSW), ss 97 and 99, Uniform Civil Procedure Rules, Part 31.5 and District Court Rules, s53.10C Criminal Procedure Act, s130A.
Cases Cited:	Clancy v Director of Public Prosecutions [2018] NSWCA 102, R v Harker [2004] NSWCCA 427, R v Hughes [2017] HCA 8, R v RJ [2011] NSWDC 158.
Category:	Procedural and other rulings
Parties:	Regina (Crown) A.C. (Accused)
Representation:	Counsel: Mr Everson with Mr Tunks (Crown) Counsel: Mr Singleton (Accused)
File Number(s):	2017/00050193
Publication restriction:	Non publication order of the names of the accused or any complainant or of any other matter which might identify them, directly or indirectly.