R v Ferguson - [2015] NTSC 35

R v Ferguson [2015] NTSC 35
PARTIES:THE QUEEN

v
FERGUSON, Danny

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21343913
DELIVERED:  4 June 2015
HEARING DATES:  1-4 June 2015
JUDGMENT OF:  MILDREN AJ
CATCHWORDS:

CRIMINAL LAW – Procedure – Trials – Trials in absentia – Where defendant voluntarily absents himself after the commencement of trial – Considerations when exercising discretion to proceed with trial in defendant’s absence – Application of principles in R v Hayward [2001] QB 862
Criminal Code s 361(4)
R v Hayward [2001] QB 862; R v Jones (Anthony) [2003] 1 AC 1, followed
Kumar v R [2013] 3 NZLR 201, referred to

REPRESENTATION:
Counsel:
Plaintiff:S Robson
Defendant:T Collins
Solicitors:
Plaintiff:Director of Public Prosecutions
Defendant:Central Australian Aboriginal Legal Aid Service Inc
Judgment category classification:   A
Judgment ID Number:  Mil15535
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
R v Ferguson [2015] NTSC 35
No. 21343913
BETWEEN:

THE QUEEN

Plaintiff

AND:

DANNY FERGUSON

Defendant

CORAM: MILDREN AJ
EX TEMPORE
REASONS FOR RULING
(Delivered 4 June 2015)

This is an application by the Prosecution to proceed with the trial in the absence of the accused, pursuant to s 361(4) of the Criminal Code.
The accused is charged with two counts of sexual intercourse without consent, arising out of incidents that occurred at Finke on 2 and 3 October 2013. He was also charged with one count of unlawfully assaulting the same victim on the same occasion with circumstances of aggravation, to which he pleaded guilty. The trial proceeded on Monday 1 June 2015. The accused was present and represented by Ms Collins of the Central Australian Aboriginal Legal Aid Service.
The particulars of the offences which the Crown alleges are that the accused inserted a torch into the anus of the complainant without her consent, and then forced her to fellate him.
The complainant gave evidence and was cross examined, and witnesses were called. The Prosecution called Dr Katrina Lloyd, who examined the complainant; Kerry-Anne Lennon, Kevin Ferguson, and Cinthia Campbell, who were all involved in arranging for the complainant to get assistance from the Police and the local clinic; and Sergeant Michael Swain, who interviewed the complainant at the clinic for the purpose of finding out the details of the complaint and arranged for the matter to be investigated by the Alice Springs CIB. A number of photographs and other exhibits were tendered, and at the time of this application, the Crown case was virtually completed.
On the third day of the trial, the accused was called and did not appear. Extensive enquiries were made by both the Prosecution and Defence counsel as to his whereabouts. Ms Collins informed the Court that she was unable to contact her client because his phone was switched off. Ms Collins had also spoken to some of the accused’s family in Finke and was told that there was…

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 Ferguson

Details

AGLC: R v Ferguson [2015] NTSC 35
Case: [2015] NTSC 35
Decision Date: 4 June 2015

CaseChat Overview and Summary

In the matter of the Crown versus Ferguson, the defendant, a resident of Australia, was on trial for two counts of sexual intercourse without consent. The trial was conducted in the Supreme Court of New South Wales. The defendant, having been present for the initial stages of the trial, chose to absent himself from the proceedings without any explanation. The Crown sought to proceed with the trial in his absence, raising significant legal questions regarding the court's discretion to do so.

The central legal issues before the court were whether the trial should proceed in the defendant's absence and, if so, how the jury should be directed in light of the defendant's decision to not give evidence. The court had to consider the principles set out in R v Hayward, which provide a framework for determining when a trial may continue in the absence of the defendant. The Tenth Consideration, which weighed the potential delay in re-running the trial against the necessity of proceeding, was particularly relevant.

The court, after thorough deliberation, determined that the trial should proceed in the defendant's absence. The decision was based on the need to avoid significant delays and the potential impact on witnesses' memories if the trial were to be re-run. The court emphasised that the defendant's absence was not an admission of guilt and instructed the jury accordingly. The court also noted that, as the trial proceeded without the defendant, a Liberato direction, which would have been given if the defendant had testified, was no longer possible. The jury was to consider the case as if the defendant had chosen not to give evidence.

The final orders of the court were to proceed with the trial in the defendant's absence and to provide the jury with a specific direction regarding the defendant's absence, ensuring that it did not prejudice the defendant. This direction was to be consistent with the principles established in R v Hayward.

Orders

Orders of the court

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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

The Tenth Consideration: If the trial needed to be run again, there is the possibility of a long delay. A week would need to be found for the trial to be re-listed. Witnesses would also need to be recalled. A delay to allow the trial to be re-run means there is the possibility of the witnesses’ memories being affected. In my view, the trial should proceed. I exercise my discretion to continue the trial in the absence of the accused. Throughout the trial, it was apparent to me that the defence case was that neither of the allegations of sexual intercourse actually took place. I was informed that it was Ms Collins’ intent to call the accused to give evidence in his defence. I note that there would most likely have been a Liberato direction had that occurred. As the case now proceeds in his absence, such a direction will no longer be possible and the jury will now have to consider the case as if the defendant had chosen not to give evidence. In accordance with R v Hayward,[6] I will warn the jury that the absence of the accused is not an admission of guilt and adds nothing to the Prosecution case.