R v Ferguson

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.