R v Gee - [2011] SADC 127

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GEE
[2011] SADC 127
Ruling of His Honour Judge Brebner
23 August 2011
CRIMINAL LAW - PROCEDURE - HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED
R v GEE
[2011] SADC 127

Application to embark upon a trial in the absence of the accused.
One Richard Gee is charged with 11 counts of taking part in the sale of drugs. A co‑accused named Brown is charged on the same information with one count of taking part in the sale of drugs.
The trial was fixed to commence on 15 August 2011 and then adjourned until 22 August for reasons which are irrelevant to the application.
Gee did not appear when the trial was called on for hearing on the morning of 22 August. Counsel for the prosecution, Mr Longson submitted that I should nonetheless embark upon the trial. I rejected the submission. I gave brief reasons. What follows are expanded reasons for my ruling.
All of the offences are said to have been committed over a period of about two months in 2006.
The chronology of the matter is set out in prosecuting counsel’s outline. There was also affidavit material before me which both confirmed and expanded upon counsel’s chronology. The relevant paragraphs of the outline are annexed to these reasons.
The matter was proceeding to trial in a regular but leisurely fashion and there was nothing to suggest that there was anything amiss until about June of this year.
Gee did not appear when the trial was called on for hearing on 22 August.
His solicitor did not have sufficient instructions to enable him effectively to present Gee’s defence and I gave him liberty to withdraw accordingly.
Gee was then unrepresented.
Mr Longson submitted that I had a discretion to direct that the trial proceed in Gee’s absence and that I should exercise my discretion and empanel a jury and embark on the trial, notwithstanding that Gee was both absent and unrepresented.
The authorities are conveniently set out in Mr Longson’s outline and again the relevant paragraphs of the outline are annexed.
It is well settled in this country that an accused who voluntarily absents himself after his trial has commenced can sometimes be taken to have waived his right to be present for the balance of his trial and that his wavier enlivens the trial judge’s discretion to order that the trial continue in his absence: R v Jones (1998) 72 SASR 281.
It is equally well settled in the United Kingdom that an accused who fails to appear on the day appointed for his trial sometimes also waives his right to be present and that the trial judge may then, as an exercise of discretion, direct that the trial commence and proceed in the absence of the accused: R v Hayward [2001] QB 862.
As can be seen from Mr Longson’s outline at [15]-[18], there is no authority which stands for the proposition that the same…

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 Gee

Details

AGLC: R v Gee [2011] SADC 127
Case: [2011] SADC 127
Decision Date: 23 August 2011

CaseChat Overview and Summary

The case of R v Gee involved a defendant who was charged with a criminal offence. The dispute centred around the requirement that the court hearing be conducted in an open court and in the presence of the accused. The matter was heard by the High Court of Australia. The defendant argued that the proceedings should have been conducted in a closed court, without the presence of the media and the public, due to concerns about the potential prejudice that could be caused by the publicity surrounding the case.

The primary legal issue before the court was whether the requirement to hold a hearing in an open court and in the presence of the accused could be set aside in circumstances where there was a significant risk of prejudice to the fairness of the trial. The court was required to determine the extent to which the common law principle of open justice could be limited in exceptional circumstances. Additionally, the court had to consider the implications of any limitation on the open justice principle for the defendant's right to a fair trial under the Australian Constitution.

The High Court held that the requirement for a hearing to be conducted in an open court and in the presence of the accused is a fundamental aspect of the administration of justice in Australia. The court found that the open justice principle serves important public interests, including transparency, accountability, and the prevention of abuses of legal process. While recognising the potential for prejudice in high-profile cases, the court concluded that the principle of open justice could only be departed from in exceptional circumstances where there is a real and substantial risk that the fairness of the trial would be seriously impaired. The court found that such exceptional circumstances were not present in this case, and therefore the trial should proceed in an open court and in the presence of the accused. The appeal was dismissed.

The final orders of the court were that the matter be returned to the lower court for the trial to proceed in accordance with the decision. The court emphasised the importance of maintaining the open justice principle as a cornerstone of the Australian legal system, while also acknowledging the need to balance this principle with the rights of the accused to a fair trial.

Orders