R v Cox & Sadler (No 10)

[2006] VSC 334

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1453 of 2003

THE QUEEN

v

STEPHEN COX AND GLENN SADLER

---

JUDGE:	KAYE  J
WHERE HELD:	Melbourne
DATE OF RULING:	16 June 2006
CASE MAY BE CITED AS:	R v Cox and Sadler (Ruling No. 10)
MEDIUM NEUTRAL CITATION:	[2006] VSC 334

---

CRIMINAL LAW – Procedure – Crimes Act 1958 s 418(d) – Whether second accused required to announce case at close of Crown case – exercise of judge’s discretion – connection between accused cases.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Tovey, QC with Mr D. Brown	Solicitor for the Office of Public Prosecutions
For the First Defendant	Mr B. Young	Tony Hargreaves & Partners
For the Second Defendant	Mr G. Georgiou with Ms H. Spowart	Victoria Legal Aid

HIS HONOUR:

1. The Crown case is due to close.  The accused who appears first on the presentment, Mr Cox, has, through his counsel, told me what course he will be adopting, which will involve, at the least, calling some evidence.  The Crown has submitted to me that at the conclusion of the Crown case not only should Mr Young, on behalf of Mr Cox, be required to announce his course to the jury, but immediately after that announcement, Mr Georgiou, for the second accused, Mr Sadler, should also be required to do so. 

1. The Crown argument is based on the decision of Sir John Young (the then Chief Justice) in R v Faure and Corrigan.[1]  In that case the first accused, Faure, had announced through his counsel his intention to give evidence and the question was whether Corrigan could defer making his announcement to the jury pending the argument of a no case submission on his behalf.  His Honour decided that Corrigan was entitled to defer making his no case submission until the conclusion of evidence called on behalf of the first accused, Faure. 

   [1][1978] VR 246.

1. Section 418(d) is the section which requires counsel to announce the course of the accused on conclusion of the Crown case; however, it is silent as to what course should be adopted where two or more accused are presented together.

1. Mr Brown, who appears as junior counsel for the Crown, has submitted that the decision in Faure and some of the observations of the learned Chief Justice dictate that the section requires that both accused should, on conclusion of the Crown case, announce the course which they propose to take to the jury. 

1. I disagree with that construction of His Honour’s judgment in Faure.  In my view, His Honour was doing no more than laying down useful guidelines which might ordinarily apply in the type of trial which was then before him.  His Honour did, however, at p.248 remark that ultimately the issue is one for the trial judge’s discretion to be exercised in the interests of justice. 

1. In my view, there are good reasons in the interests of justice why in this case the second accused, Mr Sadler, should not be required to announce his course immediately after the first accused, Mr Cox, has announced his course.  Ultimately, the course which Mr Sadler intends to adopt will potentially be dictated or affected by what course Mr Cox takes and, in particular, by the outcome of whatever evidence is called.  Any evidence called by or on behalf of Mr Cox will necessarily affect Mr Sadler’s case.  It will thus necessarily affect the decision as to what witnesses may or may not be called, and indeed it may substantially affect the decision whether Mr Sadler gives evidence or not.  In those circumstances, if I were to require Mr Georgiou to announce immediately after Mr Young the course that Mr Sadler intends to adopt, that could occasion unfair embarrassment to the second accused, should ultimately he need to call more or less evidence or change the course he proposes to adopt as a result of the evidence called on behalf of Mr Cox. 

1. For those reasons, I would consider that if I were to require Mr Georgiou to announce his course immediately after Mr Young had announced the course on behalf of Mr Cox, that could occasion unfair prejudice to the second accused, Mr Sadler. 

1. In addition, I think there is a useful purpose to be served by the two accused not announcing their course immediately after each other in circumstances where it appears evidence is to be called on behalf of Mr Cox.  Although this is a joint trial, I have already emphasised to the jury, and will be re‑emphasising in my final directions, that the jury will be adjudicating on two trials of two accused.  In light of the issues which have arisen in this case and in the state of the present evidence, that principle is of quite some importance.  It is, I think, useful that Mr Cox announce his course, calls his evidence and completes his case before Mr Sadler be required to do the same.  Adopting that procedure will, I think, serve to highlight the principle that I have already attempted to explain to the jury and which, as I say, will be explained to them again in my final directions. 

1. Mr Brown for the Crown frankly and fairly conceded that there was no real disadvantage to the Crown if I were to permit Mr Georgiou to defer announcing his course.  He adverted to some matters such as the element of surprise which can, as I have already stated, be appropriately catered for by allowing the Crown, or indeed any other party, appropriate time to prepare their case.  I have already made abundantly clear my attitude in this trial, that counsel are to have the opportunity to have time to prepare their case properly, and I have endeavoured to avoid forcing counsel to their feet when they genuinely feel they are not prepared to do so. 

1. In passing, although it may not be relevant, I should say at this stage, and it is appropriate for me to do so, that counsel have worked extraordinarily hard and have thus far shown themselves to be well prepared for each phase of this lengthy and difficult trial. 

1. Section 418(d) commences with the phrase “for the purpose of enabling him to determine the proper course of the proceedings the presiding judge shall at the close of the case for the prosecution question the accused’s [singular] legal practitioner or if he is unrepresented the accused himself as to what course the defence proposes to follow “.

1. I can see no need for me at this stage to question Mr Georgiou as to what course he shall follow in order for me to determine the proper course of the proceedings.  No issue has arisen which would require me to ascertain Mr Sadler’s position before I am able to determine any such issue. 

1. In all those circumstances, I consider that all of the factors in the case weigh against me requiring Mr Sadler to announce his course immediately after Mr Cox has announced his course.  Accordingly, in this trial I shall, at the conclusion of the Crown case, require Mr Young to state his proposed course to the jury.  If that proposed course does, as has been foreshadowed, involve Mr Cox calling evidence, that evidence shall be called and completed.  At the conclusion of Mr Cox’s case, I shall then require Mr Georgiou to announce to the jury what course he proposes to take.