R v Fischetti (No. 2)
[2016] ACTSC 105
•18 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Fischetti (No. 2) |
Citation: | [2016] ACTSC 105 |
Hearing Dates: | 13 May 2016, 16 May 2016, 17 May 2016, 18 May 2016 |
DecisionDate: | 18 May 2016 |
Before: | Robinson AJ |
Decision: | The application for adjournment of the trial is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by jury – application for adjournment to subpoena witness to give evidence |
Parties: | The Queen (Crown) Frank John Fischetti (Accused) |
Representation: | Counsel Ms M Jones (Crown) Mr R McCrudden (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Macquarie Lawyers Burwood (Accused) | |
File Number(s): | SCC 95 of 2015 |
ROBINSON AJ:
On the application for adjournment of the trial
The accused has been indicted on what might be described, for present purposes, as 12 counts of fraud. He is before the jury. The Crown has closed its case. At the conclusion of the Crown case, the accused sought an adjournment of the trial in order to serve a subpoena on Mr Ted Manny and then secure his attendance so that Mr Manny could give evidence in the case for the accused. Mr Manny is, apparently, usually a resident of NSW. At the time of the application, the trial had run for 27 days. It commenced on 4 April 2016.
Mr Manny did not feature in the Crown case but he was mentioned as playing some part in one count of the indictment. Counsel for the defence sought to explore this part more fully in cross-examination where he could do so. However, no specific factual assertion emerged from the cross-examination or otherwise as to how the evidence of Mr Manny could assist the accused’s case. Nor was I told from the bar table, or by the tender of any statement or document, how Mr Manny’s evidence could assist the accused. I was told from the bar table that Mr Manny could give evidence as to that above count and also in relation to two additional counts but I was not told what that evidence would be.
It is not obvious to me, on the evidence already given, what testimony Mr Manny could give that would assist the accused in any of these three counts.
It was, however, made clear from the bar table that the accused himself would not be giving evidence at his trial. This is, of course, his right.
During the course of the trial, by email dated 28 April 2016, the accused asked the Crown to locate Mr Manny and indicated that they would like Mr Manny available for cross-examination. Thereafter, the police have apparently searched for Mr Manny, but there is evidence before the Court that these searches were unproductive. I interpolate to record that searches for three other witnesses who appeared to play much larger parts in the events, the subject of the twelve counts in the indictment, have similarly been unproductive.
On Friday 13 May 2016, upon receipt of the application for leave to subpoena Mr Manny on short notice, I acceded to that request acting on what I had been told from the bar table. The Deputy Registrar of this court duly issued a subpoena. By Monday 16 May 2016, the witness had not been served and no information was available as to when he might be served. I adjourned the case until Tuesday 17 May 2016 and told the parties that I would require evidence upon which to act.
On Tuesday 17 May 2016, at 10:00am, I was again told matters from the bar table and without any evidence being supplied to the court. In the circumstances then pertaining, I hesitantly, adjourned the matter until 2:00pm at which time I requested that evidence be available to explain the situation.
At 2:00pm on Tuesday 17 May 2016, no evidence was available to explain the situation. Counsel for the accused made a further application to adjourn the proceedings. It was at this time that I inquired of counsel what precisely Mr Manny might be able to say which would assist the accused in his defence of these charges. I did so because the content of the proposed evidence may be a factor to be weighed in the application. On instructions, I was told from the bar table of the various payments made to Mr Manny by the accused in order to “facilitate” three transactions, the subjects of the counts in the indictment. Although the dollar amount of some of these payments, given on instructions, can be traced into records already in evidence, the relationship between the payments alleged to be made to Mr Manny and the offences charged against the accused is not nearly straightforward.
In any event, the instructions which were relayed from the bar table to the court were such that all of the information conveyed was within the knowledge of the accused and had been so at all times.
I adjourned the proceedings until 10:00am on Wednesday 18 May 2016. The following exchange occurred at the end of submissions:
HIS HONOUR: As a matter of logic, if for example tomorrow morning came and we didn’t have a definite start time - - -
MR McCRUDDEN: I would anticipate, your Honour, if I may interrupt, I apologise if I am, I would anticipate that I would make the same application and your Honour would say no, enough is enough Mr McCrudden, get the jury in and I couldn’t be seen to complain. At least I wouldn’t be heard to complain.
HIS HONOUR: I will deal with this at 10 o’clock tomorrow morning. I just want you to be under no misunderstanding that the case is likely, unless something else occurs, to commence at 10 o’clock.
MR McCRUDDEN: I accept that, your Honour. The defence cannot reasonably ask for more.
HIS HONOUR: And it would require persuasive sworn evidence of a definite date when the trial would recommence and time.
MR McCRUDDEN: Yes.
Today, I was provided with an email from a process server. It reports on attempts to serve Mr Manny. There has been no success in locating Mr Manny. The probabilities are that Mr Manny does not wish to be found, based upon the state of the evidence. There is no known date when Mr Manny would be available to give evidence.
I dismiss the application for a further adjournment.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson Associate: Date: 10 June 2016 |
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