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

1. Application to embark upon a trial in the absence of the accused.

2. 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.

3. The trial was fixed to commence on 15 August 2011 and then adjourned until 22 August for reasons which are irrelevant to the application.

4. 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.

5. All of the offences are said to have been committed over a period of about two months in 2006.

6. 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. 

7. 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.

8. Gee did not appear when the trial was called on for hearing on 22 August.

9. His solicitor did not have sufficient instructions to enable him effectively to present Gee’s defence and I gave him liberty to withdraw accordingly. 

10. Gee was then unrepresented.

11. 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.

12. The authorities are conveniently set out in Mr Longson’s outline and again the relevant paragraphs of the outline are annexed. 

13. 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.

14. 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.

15. As can be seen from Mr Longson’s outline at [15]-[18], there is no authority which stands for the proposition that the same discretion exits in this country and nor is there any authority which directly stands in the way of its existence.

16. In my view there is every reason in principle and policy why trial judges in this State should have such a discretion and I am satisfied that I do.

17. I take the principles and considerations informing the exercise of the discretion to embark on a trial in the absence of an accused to be those identified by Rose LJ in R v Hayward & Ors [2001] QB 862 at [22]-[23], as set out in paragraphs 9 and 10 of Mr Longson’s outline. At least some of these principles have been accepted in this State in the context of the discretion to press on with a trial when an accused has absented himself after the trial has commenced: R v Jones above. 

18. As can be seen, the principles distil down to two fundamental questions:

    1       Has the accused deliberately absented himself knowing his trial is due to commence thus waiving his right to be present?

    2       Can the trial be conducted fairly in his absence or would embarking on the trial create a perceptible risk of miscarriage which could not be cured by a permissible moulding of the trial processes to meet the exigencies of the situation.

19. The charges are plainly extremely serious and, on the basis of the sentence imposed on a co-offender who has been dealt with, Gee would be facing a very lengthy term of imprisonment if he were to be convicted and he would be well aware of this. 

20. I am satisfied on the basis of the material sworn to in Detective Brain’s affidavit that Gee well knew that the trial was due to commence today, or earlier this month. I am also satisfied that he has voluntarily and deliberately chosen not to attend out of fear of conviction and sentence which would be magnified by associated fear of arrest and extradition to New South Wales to face sentence for an offence of possession of a false passport. I am thus satisfied that he has waived his right to be present at his trial.

21. Whether the trial can be conducted without perceptible risk of miscarriage is a matter of fact and degree. Determination of this question involves identification of the potential issues which might arise during the trial and the ramifications of Gee’s absence and his lack of representation. 

22. It is said that Gee was a distributor of illicit drugs who organised the delivery of significant amounts of drugs to others. The case against him is entirely circumstantial and largely turns on the inferences which might be drawn from a substantial number of intercepted telephone calls and text messages. These telephone calls and messages involved a number of mobile telephone services which were said to be operated by Gee. Many of the conversations and messages were in some form of jargon or code. The prosecution proposes to call a suitably qualified drug investigator to interpret the various conversations and messages.

23. It is the prosecution case that the only inferences which can be drawn from the various conversations and texts, when considered in their entirety, is that they relate to the distribution of drugs and to the drugs and occasions particularised in the charges. It follows that to establish its overall case, or its case in relation to any one charge, the prosecution would have to prove that, to the exclusion of all other possibilities, it was in fact Gee who was involved in the relevant conversations and that it was in fact him who was sending or receiving the relevant texts and that the conversations and texts related to the distribution of the drugs particularised. The prosecution appears to have a strong prima facie case.

24. By his pleas of not guilty Gee has, amongst other things, raised the potential issues of whether it was him speaking in the conversations or sending or receiving the texts, whether he was in fact operating the various mobile phone services and whether the investigators interpretations of the conversations and the messages are correct. Precisely what Gee’s case is in relation to each of these issues is simply unknown.

25. On the face if it, this is thus the kind of case where the prosecution evidence cannot be adequately tested and the accused’s answer to the charge cannot adequately emerge in the absence of properly instructed counsel.

26. I accept, as Rose LJ said in R v Hayward, that if the trial were to proceed in Gee’s absence, then a duty would be cast on Mr Longson to take “a slightly more challenging role to his own witnesses” and that it would also be incumbent upon me to point out weaknesses in the prosecution case, both during the trial and in summing up. The application thus turns on whether these modifications of our respective roles would be sufficient to obviate a perceptible risk of miscarriage.

27. Raising possibilities consistent with innocence in the circumstances of this case could well involve challenging the interpretations of the drug investigator which in turn could well involve Gee’s version of what was actually meant by the conversations and the messages. It could also involve challenging the inferences which might arise from the evidence about where the mobile phones were located or the subscriber information in relation to all or some of the phones. 

28. In these circumstances, prosecuting counsel might well have to adopt more than a “slightly more challenging” approach to his own witnesses in order to lay the full picture in front of the jury and he might find himself in the position where he would, almost of necessity, be forced to cross examine some of them on some aspects of their evidence in order to do so. He should not be placed in such an invidious position.

29. True it is that there is nothing to prevent me from asking at least some questions of my own with a view to exposing weakness in the prosecution case, but I would lack the information that I would need in order properly to explore for any potential weakness.

30. My responsibility to point out any weaknesses carries with it the imprimatur to involve myself in the proceedings by questioning witnesses and commenting on the evidence to a greater extent than would otherwise be the case. But there still remains a point beyond which I should not go. In the circumstances of this case, my asking questions with a view to exposing any weakness in the prosecution case and explaining any such weaknesses to the jury, both as the trial proceeds and during the summing up, could well involve my trespassing into what would ordinarily be counsel’s territory to an extent which is inimical to my role as trial judge.

31. The application to proceed with Gee’s trial in his absence was refused accordingly.

32. It may seem somewhat paradoxical that that by absenting himself Gee has been able to achieve the very result he obviously desired, but the overriding consideration must nonetheless be the fairness of the trial and the avoidance of the possibility of miscarriage.

33. Lest there be any misunderstandings, in reaching this conclusion I have found that all other relevant considerations, including those articulated by Rose LJ, pointed strongly in favour of embarking on the trial and had he been represented by counsel with reasonable instructions I would have directed that the trial proceed.

    APPENDIX:

    RELEVANT PARAGRAPHS OF PROSECUTING COUNSEL’S OUTLINE

    The Law

    4.     It has long been understood that an accused person not only has the right to be present at trial but must be present for a trial conducted on indictment. In Lawrence v The King[1], Lord Atkin sitting as member of the Judicial Committee of the Privy Council, in giving reasons for the committee said the following;

    “It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence. There is authority for saying that in cases of misdemeanour there maybe circumstances which permit a trial in the absence of the accused, but on trials for felony the rule is inviolable.”[2].

    [1] [1933] AC 699

    [2] [1933] AC 699, at 708

    5.     In quoting this passage with approval Lander J in R v Jones[3], with whom the other members of the Court agreed, noted that the difference between misdemeanours and felonies no longer applies in this jurisdiction. Lander J further identified that at the time the Privy Council considered Lawrence v The King, an accused charged with a felony was rarely admitted to bail.[4]

    [3] (1998) 72 SASR 281

    [4] (1998) 72 SASR 281, at 292

    6.     The ‘right’ to be present at trial can be waived by the accused. It is well understood that an accused person who is present at the commencement of their trial, through involuntary illness[5] or misbehaviour[6], may not be present through to the completion of the trial. An accused may also waiver their right to be present by deliberately absenting themselves after the commencement of the trial. It is well recognised and accords with practice in this jurisdiction that a court has a discretion to continue the trial in those circumstances.[7]

    [5] R v Abrahams (1895) 21 VLR 343, per Hood J at 349; see R v King (2004) ACTSC 82, at [7]-[14]

    [6] R v Abrahams, per Williams J at 347

    [7] R v Rigney (1988) 48 SASR 72; see R v McHardie & Danielson (1983) 2 NSWLR 733, per curiam at 745; R v Mokbel (2010) 249 FLR 169 per curiam at [34]-[42]

    7.     In R v Jones[8], the accused was on bail, and had been charged with wounding with intent to cause grievous bodily harm. He appeared on the first day of his trial. On the second day he did not appear and a bench warrant was issued. On the third day he did not appear and his counsel could not assist the court as to the whereabouts of the accused. After hearing argument and over the objection of the accused’s counsel, the trial proceeded in the absence of the accused, his counsel having been given leave to withdraw. The accused was convicted by the jury and appealed his conviction following his eventual arrest on the bench warrant. Lander J held the following;

    “In my opinion a court may proceed with a trial in the absence of an accused person. It may do so in circumstances where the accused has indicated that he or she waives the right to be present … when that person during the currency of the trial … escapes from custody, or where the accused unlawfully absents himself or herself in breach of a bail agreement …

    In any of those cases, if the court is satisfied that the accused has waived his or her right to be present during the trial, and that the trial may proceed without any injustice to that person except the injustice caused by the accused’s own waiver, then the court may proceed with the accused’s trial.

    [8] (1998) 72 SASR 281

    …

    There must be circumstances where a trial can proceed in the absence of the accused. Otherwise any accused, who was on bail, and who believed at some time during the trial that his or her prospects of acquittal were remote could absent himself or herself from the trial and thereby force a new trial. That cannot be right. If that was a principle then it would be necessary to revoke the bail of all accused persons at the outset of their trial … that right can be waived and when it is waived the court may proceed to complete the trial in the absence of the accused.”[9]

    The other members of the court concurred.

    [9] (1998) 72 SASR 281, at 295

    8.     In R v Hayward[10], the Court of Appeal heard two separate appeals against conviction (Hayward & Jones) and an application for leave to appeal (Purvis). All three appellants had been tried in their absence. The Court of Appeal affirmed the decision in R v Jones, Planter & Pengelly[11] where Lord Lane CJ found that a discretion exists for a trial to commence or continue in the absence of the defendant, regardless of whether the absence is voluntary or involuntary, and went on to say;

    “There is no distinction in principle between a defendant who misbehaves in such a way as to make his/her removal from the court necessary and on the other hand the person who deliberately refuses to attend trial when he is at liberty to do so.”[12]

    [10] [2001] QB 862

    [11] [1991] Crim LR 856

    [12] [2001] QB 862, per Rose LJ at [6]

    9.     Lord Rose gave the judgement for the Court in R v Hayward and set out the following principles that should guide courts for trials in absentia;[13]

    [13] [2001] QB 862, per Rose LJ at [22]-[23]

    9.1    a defendant has “in general” a right to be present and legally represented,

    9.2    those rights “can be waived wholly, separately or together, wholly or in part by the defendant”,

    9.3    the trial judge has a discretion as to whether the trial should take place or continue, in the absence of the defendant and/or their legal representatives,

    9.4    the discretion is to be exercised with great care and “only in rare and exceptional circumstances that it should be exercised in favour of a trial taking place or continuing , particularly if the defendant is unrepresented”,

    9.5    fairness to the defence “is of prime importance”, but also fairness to the prosecution must be considered. In considering this the trial judge should consider the following;

    9.5.1 was the nature of the defendant’s behaviour in absenting themselves deliberate and voluntary, allowing for the inference that the defendant has waived their right to appear,

    9.5.2 whether the adjournment might allow for the defendant to be located or to attend voluntarily,

    9.5.3 the likely length of any adjournment,

    9.5.4 whether the absent defendant is or wishes to be represented, or has by their conduct waived the right to be represented,

    9.5.5 whether the absent defendant’s legal representatives are able to receive instructions and the extent to which they are able to present his defence,

    9.5.6 the extent of the disadvantage to the defendant in not being able to present his defence, having regard to the nature of the prosecution case,

    9.5.7 risk of an improper verdict by the jury,

    9.5.8 the seriousness of the alleged offending,

    9.5.9 the public interest and the interest of victims in the matter being dealt with in a timely manner,

    9.5.10 the effect of delay on the memory of witnesses,

    9.5.11 the presence of co-accused who have not absconded, whether they can get a fair trial in the absence of the defendant and the undesirability or not, of separate trials.

    9.6    If the trial is to commence or continue in the absence of the defendant, the trial judge must ensure the trial is fair, as “the circumstances permit”. The trial judge must during the trial and in summing highlight any weaknesses in the prosecution case. The jury must be warned that the absence of the defendant does not add to the prosecution case.

    10.    The Court said there was no necessity for the defendant who is on bail to be warned that the trial may proceed in their absence.[14]

    [14] [2001] QB 862, per Rose LJ at [23]

    11.    Hayward’s appeal was granted, as the trial judge had not heard any argument before proceeding with the trial in the absence of the defendant. Purvis was not granted leave to appeal and Jones’s appeal was dismissed. Jones then appealed, with leave to the House of Lords. The Court of Appeal certified the following question for the House of Lords;

    “Can the Crown Court conduct a trial in the absence, from its commencement, of the defendant?”[15]

    [15] [2001] QB 862, at [46]

    12.    In R v Jones (Anthony)[16] the House of Lords was required to determine whether to overrule the decision in R v Jones, Planter & Pengelly “as being inconsistent with Strasbourg jurisprudence, or contrary to principle, or apt to lead in practice to work injustice”.[17] The certified question was answered in the affirmative by all five Law Lords.[18] The principles said to guide a trial judge set out by Lord Rose in the Court of Appeal below, were affirmed.[19]

    [16] [2003] 1 AC 1

    [17] [2003] 1 AC 1, per Bingham LJ at [7]

    [18] [2003] 1 AC 1, per Bingham LJ at [13], Nolan LJ at [16]-[17], Hoffman LJ at [19], Hutton LJ at [23] & Rodger LJ at [42]

    [19] [2003] 1 AC 1, per Bingham LJ at [13], Nolan LJ at [16], Hoffman LJ at [19], Hutton LJ at [39] & Rodger LJ at [58]

    13.    Though two Law Lords were of the view that it was not necessary for a trial court to make a finding that the defendant had deliberately “waived” their right to be present at trial,[20] all five Law Lords agreed that the ultimate issue was whether the defendant received a fair trial or not.[21]

    [20] [2003] 1 AC 1, per Hoffman LJ at [19] & Rodger LJ at [54]

    [21] [2003] 1 AC 1, per Bingham LJ at [15], Nolan LJ at [18], Hoffman LJ at [20] & Rodger LJ at [69],[77]

    14.    Whilst at Jones’s trial his counsel sought and was granted leave to withdraw and no criticism was made of that either in the Court of Appeal or the House of Lords, Lord Bingham, with whom Lord Rodger agreed made the following observations;

    “But the presence throughout the trial of legal representatives, in receipt of instructions from the client at some earlier stage, and with no other object that to protect the interests of that client, does provide a valuable safeguard against the possibility of error and oversight.”[22]

    Chronology

    21.    Gee was arrested by New South Wales police on the 30th June, 2006.

    22. On the 4th July, 2006 Gee was extradited to South Australia and charged with offences under section 32 (1) of the Controlled Substances Act 1984.

    23.    Gee was admitted to bail on the 16th August 2006. On the 3rd November, 2006 Gee’s bailed was varied to include the following conditions;

    22.1 Gee reside at 21 Gordon St., Petersham NSW.

    22.2 Gee report to the Marrickville police station every Wednesday and Sunday before 6pm.

    24.    Gee was committed to the District Court for trial by Mr Ackland SM sitting at the Adelaide Magistrates Court on the 6th August, 2010 (see attached ‘Certificate of Record’).

    25.    Gee was arraigned before Chivell DCJ on the 6th September, 2010, when he entered pleas of not guilty to all counts.

    26.    On the 30th September 2010, Ms Downey of junior counsel appeared for Gee at a directions hearing before Davey DCJ. Gee was not in attendance. Her Honour listed the matter for trial over Ms Downey’s objection, to commence on the 6th June, 2011. The basis of Ms Downey’s objection was the unavailability of her leader, Mr Edwardson QC on the 6th June 2011.

    27.    On the 3rd November 2010, Mr Edwardson QC appeared for Gee at a directions hearing before Davey DCJ, Gee was in attendance. Mr Edwardson successfully brought an application to vary the trial date and the matter was listed in Gee’s presence, to commence on the 15th August, 2011.

    28.    On the 10th February 2011 a directions hearing was held before Lovell J. Gee was present and was represented by Mr Lister. The trial date of the 15th August, 2011 was confirmed by His Honour in Gee’s presence.

    29.    On the 7th April 2011 a directions hearing was held before Rice DCJ. Gee was excused on that occasion. His Honour indicated that he was to be the trial judge and made disclosure of matters related to Gee from when His Honour was at the bar. Mr Edwardson successfully applied for a copy of the transcript to be made available to the parties, so he could provide the transcript to Mr Lister and Gee.

    30.    On the 19th June 2011 Gee failed to report at the Marrickville police station in accordance with his bail agreement.

    31.    A further directions hearing was held before Rice DCJ on the 20th June. Gee was not in attendance, the transcript indicates that he was excused, though no such order was made on the previous directions hearing on the 7th April 2011. Mr Lister sought the matter to be listed for argument that Rice J should recuse himself.

    32.    On the 24th June 2011 Gee failed to appear in the District Court in Sydney, for sentencing submissions in relation to the following offences;

    32.1  Produce misleading document in an application for an Australian passport,

    Contrary to s.31(1) Australian Passports Act 2005 (Cth) (3 counts)

    Maximum penalty: 10 years imprisonment

    32.2  Make a false statement in the application for an Australian passport

    Contrary to s.29(1)(b)(i) Australian Passports Act 2005 (Cth)

    Maximum penalty: 10 years imprisonment

    The matter was remanded to the 29th July 2011.

    33.    On the 30th June 2011 the prosecution made an oral application before Rice DCJ to direct Gee’s attendance on the application for His Honour to recuse himself, which was listed to be heard on the 7th July 2011. That application was granted. Mr Edwardson QC appeared on that application, Mr Lister was present in court.

    34.    Rice J heard Gee’s application that he recuse himself, on the 7th July 2011. Mr Edwardson QC appeared for Gee, who failed to attend pursuant to Rice DCJ direction  made on the 30th June 2011. Rice J was of the view that he should not determine the prosecution application that Gee’s bail be revoked and a warrant for his arrest be issued.

    35.    On the 8th July 2011 the prosecution brought a successful application before Stretton DCJ to revoke Gee’s bail and issue a warrant for his arrest. Mr Lister appeared and made no submissions in opposing that application.

    36.    On the 15th July 2011 Rice DCJ indicated that he would step aside as trial judge.

    37.    On the 25th July 2011 a directions hearing was conducted before Brebner DCJ. Gee failed to appear.

    38.    On the 29th July 2011 Gee failed to appear in the District Court in Sydney for sentencing submissions in relation to the offence of being in possession of a false passport and a warrant was issued for Gee’s arrest.

    39.    On the 5th August 2011 the matter was listed for mention before Brebner DCJ. Gee failed to appear. Mr Lister filed an affidavit in support of his application for leave to withdraw from representing Gee. That application was not heard but the affidavit disclosed that Mr Lister last spoke to Gee on the 14th April 2011. This conversation was in person. Gee contacted Mr Lister’s office on the 3rd June to arrange an appointment on the 7th July which was not convenient to Mr Lister. That appears to be the last contact between Mr Lister and Gee.