R v Fischetti (No. 3)

[2016] ACTSC 120

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Fischetti (No. 3)

Citation:

[2016] ACTSC 120

Hearing Date:

26 May 2016

DecisionDate:

26 May 2016

Before:

Robinson AJ

Decision:

The application to adjourn the trial is dismissed

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by jury – application for adjournment

Cases Cited:

R v Fischetti (No.2) [2016] ACTSC 105

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:

SCC 95 of 2015

ROBINSON AJ:  

On the further application to adjourn the trial

1. On day 36 of this matter, in the absence of the jury, counsel for the accused applied for an adjournment of the trial so that a fresh subpoena could issue to Mr Ted Manny so that he might give evidence in the defence case.

1. At this point in the trial, the evidence had closed and both counsel for the Crown and the accused had addressed the jury.

1. I heard the application and dismissed it with reasons to be given at a later time.

1. These are my reasons for dismissing the application.

1. I had previously heard an application for an adjournment of the trial so that Mr Manny could be subpoenaed. I dismissed that application in R v Fischetti (No.2) [2016] ACTSC 105. I incorporate that judgment into these reasons.

1. In this application, counsel for the accused told me that Mr Manny “had been located as living at an address in Manly. I have the address here: it’s xxx Pittwater Road, Manly. The house is owned by Mr Petersen and it’s listed on RP Data as a rental property”.

1. I was also informed, again from the bar table, that no-one had spoken to Mr Manny and no telephone number for him was known. Counsel added that it would be fatuous for him to submit that Mr Manny would willingly give evidence.

1. I considered the position reached in the trial, the likelihood of Mr Manny ever giving evidence, the nature of his likely evidence, as best could be judged (see paragraphs [2]–[3] and [8]–[9] in R v Fischetti (No.2) [2016] ACTSC 105), and that there is again no known date when Mr Manny would give evidence.

1. In the exercise of my discretion, I declined to adjourn the trial for the above reasons.

I certify that the preceding nine [ 9 ] numbered paragraphs are a true copy of the Reasons for   Judgment of his Honour Acting Justice Robinson

Associate:

Date: 10 June 2016