R v Gee
[2012] SASCFC 86
•26 July 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Case Stated)
Question of Law Reserved
R v GEE
[2012] SASCFC 86
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)
26 July 2012
CRIMINAL LAW - PROCEDURE - HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED - IN PRESENCE OF ACCUSED PERSON
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES
HIGH COURT AND FEDERAL COURT - THE FEDERAL JUDICATURE - NATURE AND EXTENT OF JUDICIAL POWER - GENERALLY
Questions of law reserved from a Judge of the District Court - whether the common law of Australia allows for the trial of a defendant to commence and continue to verdict in their absence - whether in the circumstances of this case, the trial Judge was correct to refuse the application to commence and continue to verdict the defendant's trial in his absence.
Whether commencing a trial in the absence of a defendant impermissibly interferes with the institutional integrity of the District Court - whether the Court is engaging in a proper exercise of judicial power.
Held: (Gray and Sulan JJ): The answer to the first question is 'yes' - there is no reason in principle for distinguishing between the circumstances of a defendant who is voluntarily absent before the trial, and a defendant who absconds during the course of a trial - a trial Judge retains a discretion to proceed with the trial in the absence of the defendant - this discretion is to be exercised with caution.
The answer to the second question is 'no' - the trial Judge erred in the exercise of his discretion by wrongly concluding that a fair trial would necessitate the prosecuting counsel to be placed in an unacceptable position, and the trial Judge to conduct himself in a manner inimical to his role as judge - the matter is to be remitted to the District Court for a re-hearing of the prosecution application.
Held: (Peek J, in dissent)
The decision of the House of Lords in R v Jones should not be followed and Question One should be answered in the negative. There is a clear rule of the common law of Australia that a trial must be conducted in the presence of the defendant. Some limited and defined exceptions have been accepted, including that “exceptionally the trial may continue where the defendant fails to appear at his trial after the trial has started”, but the rule itself remains and continues to prohibit the commencement of a trial in the absence of the defendant. There is a substantive and entrenched distinction as between commencing and continuing a trial in the absence of a defendant and authoritative statements of the High Court supporting the existence of the rule remain to be obeyed unless and until the High Court declares that the common law is otherwise or Parliament changes the law.
Further, a negative answer is also required for the following additional reasons. First, a purported trial commencing in the absence of the defendant would not be a “jury trial” within the meaning of s 6 Juries act 1927 (SA). Second, the common law and South Australian statutory provisions require a defendant to be arraigned in the presence of the jury panel and to enter a plea personally. Third, the common law and South Australian statutory provisions require a defendant to be present during the jury empanelment process.
Criminal Law Consolidation Act 1935 (SA) s 5D, s 284, s 285A and s 350; Australian Passports Act 2005 (Cth); Evidence Act 1929 (SA) s 18; Juries Act 1927 (SA) s 6, s 6A, s 15, s 61 and s 646; Criminal Code, RSC 1985, c C-46 s 475, s 597, s 598 and s 650; Criminal Law Act 1967 (UK) s 1; Commonwealth of Australia Constitution Act (Cth) s 80; South Australian Supreme Court Criminal Rules r 10; Criminal Code 1924 (Tas) s 369; Crimes Act 1900 (ACT) s 281, s 282 and s 284; Criminal Procedure Act 1986 (NSW) s 130; Criminal Code Act (NT) s 336, s 352, s 354 and s 361; Criminal Code 1899 (Qld) s 617; Criminal Procedure Act 2009 (Vic) s 210, s 215, s 217, s 228, s 230, s 246 and 330; Criminal Procedure Act 2004 (WA) s 88, s 103, s 140, s 142 and s 172; Criminal Procedure (Scotland) Act 1995 s 54 and s 92; Federal Rule of Criminal Procedure (US) r 43, referred to.
Attorney General’s Reference No 1 of 1988 (1988) 49 SASR 1; Jones, Planter and Pengelly [1991] Crim LR 856; R v Jones (Anthony) [2003] 1 AC 1, applied.
Dietrich v The Queen (1992) 177 CLR 292; Wakeley v The Queen (1990) 64 ALJR 321; Nudd v The Queen (2006) 162 A Crim R 301; Forge v Australian Securities and Investments Commission (2006) 288 CLR 45; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087; Ah Yick v Lehmert (1905) 2 CLR 593; Gould v Brown (1998) 193 CLR 346; Harris v Caladine (1990-1991) 172 CLR 84; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; Momcilovic v The Queen (2011) 85 ALJR 957; Pedersen v Young (1964) 110 CLR 162; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Polyukhovich v The Commonwealth (1991) 172 CLR 501; The Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; Nicholas v The Queen (1998) 193 CLR 173; The Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1; Leeth v The Commonwealth (1992) 174 CLR 455; International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; Williamson v Ah On (1926) 39 CLR 95; Thomas v Mowbray (2007) 233 CLR 307; The Queen v Humby; Ex Parte Rooney (1973) 129 CLR 231; R v Abrahams (1895) 21 VLR 343; R v Hayward [2001] 1 QB 862; R v Paraku [2002] DCR 669; R v Sthmer HC WN T1064/01 (17 June 2003); R v Collie (2005) 91 SASR 339; Lipohar v The Queen (1999) 200 CLR 485; R v King (2004) 155 ACTR 55; R v Jones (1998) 72 SASR 281; R v Rigney (1988) 48 SASR 72; Jago v District Court of New South Wales (1989) 168 CLR 23; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Hellenic Republic v Tzatzimakis (2003) 127 FCR 130; Whitehorn v The Queen (1983) 152 CLR 657; Dyers v The Queen (2002) 210 CLR 285; Ebatarinja v Deland (1998) 194 CLR 444; Kunnath v The State [1993] 1 WLR 1315; Moti v The Queen [2011] 86 ALJR 117; Lawrence v The King [1933] AC 699; Athanassiadis v Government of Greece [1971] AC 282; R v Jones (Robert) [No 2] [1972] 1 WLR 887; Tassell v Hayes (1987) 163 CLR 34; Weist v Director of Public Prosecutions (1988) 86 ALR 464; R v Hallocoglu (1992) 29 NSWLR 67; R v Andrews [2010] SASCFC 5; R v Berry (1897) 104 LT Jo 110; R v Lee Kun (1916) 1 KB 337; R v Browne (1906) 70 JP 472; R v Vernell [1953] VLR 590; R v Cornwell [1972] 2 NSWLR 1; R v Sykes and Campi (No 2) [1969] VR 639; R v McHardie and Danielson [1983] 2 NSWLR 733; R v Rigney (1988) 48 SASR 72; Browne v The Queen (1985-86) 160 CLR 171; PGA v The Queen (2012) 287 ALR 599; R v Talia (1995) 82 A Crim R 373; Crosby v United States (1993) 506 US 255; Cheatle v The Queen (1993) 177 CLR 541; Brownlee v The Queen (2001) 207 CLR 278; R v Ellis (1973) 57 Cr App R 571; R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295; Ayles v The Queen (2008) 232 CLR 410; Tasmania v Bosworth (2005) 153 A Crim R 278; Rodger Johns v The Queen (1979) 141 CLR 409; R v Cherry [2005] VSCA 89; Katsuno v The Queen (1999) 199 CLR 40; Maher v The Queen (1987) 163 CLR 221; R v Lee [1989] 2 SCR 1384; R v Touch [2005] SADC 65, considered.
Question of Law Reserved
R v GEE
[2012] SASCFC 86Court of Criminal Appeal Gray, Sulan and Peek JJ
GRAY and SULAN JJ:
The Court in this proceeding is to determine questions of law reserved before trial.
The authority for the reserving of questions of law for the consideration of the Full Court is to be found in section 350 of the Criminal Law Consolidation Act 1935 (SA) which relevantly provides:
Reservation of relevant questions
(1) In this section—
relevant question means a question of law and includes a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
(2) A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue—
(a) antecedent to trial; or
(b) relevant to the trial or sentencing of the defendant,
and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.
(3) Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant.
On 25 August 2011, Brebner DCJ presiding over the trial of the defendant, Robert Gordon Pollybank Gee, reserved the following questions of law for the consideration of this Court:
1. Was I right to conclude that the common law of Australia allows for the trial of a defendant to commence and continue to verdict in their absence?
2. If the answer to question 1 is “yes”, in the circumstances of this case, was I right to refuse the application to commence and continue to verdict the defendant’s trial in his absence?
The reservation of the above questions arose on 22 August 2011, the same day that Brebner DCJ was to embark upon the trial of the defendant. The Information before the court charged the defendant with 11 counts of taking part in the sale of drugs being offences under section 32(1)(d) of the Controlled Substances Act 1984 (SA). A co-accused, Adrian Jeremy Brown, was charged on the same Information with one count of taking part in the sale of drugs. Mr Brown had made an application for a separate trial that was at that time yet to be determined.
On the morning of 22 August 2011 the trial was called on for hearing. The defendant did not appear. Senior counsel appeared for the solicitor on record for the defendant, and made submissions in support of an application that the solicitor be given permission to withdraw. Having heard submissions, Brebner DCJ granted the application. As a consequence, the defendant had no representation. The prosecutor submitted that the trial should proceed. The Judge took the view that he had a discretion whether or not to proceed with the trial. The Judge, however, declined to proceed. He provided brief ex tempore reasons for his decision, and later provided considered written reasons.
The Proceedings before the Full Court
This Court considered that it would be assisted by hearing counsel in opposition to the Director of Public Prosecutions. This would allow the submissions of the Director to be better evaluated by the Court. As a consequence, senior counsel appeared as amicus curiae.
During the course of submissions the Solicitor-General, appearing for the Director, outlined the general nature of the prosecution case. It was said that the defendant, a distributor of illicit drugs, organised the delivery of significant quantities of drugs to others. The alleged offences were said to have been committed over a two-month period during 2006.
The case is entirely circumstantial and relies on intercepted telephone calls and text messages. These intercepted calls were made using mobile telephone services said to be operated by the defendant. Many of the conversations and messages were in a form of code or jargon. The prosecution proposed to call a suitably qualified drug investigator to interpret and explain the conversations and messages.
The Relevant Chronology
On 30 June 2006, the defendant was arrested in New South Wales and on 4 July 2006, was extradited to South Australia. He was charged with the earlier mentioned drug offences. The defendant was granted bail on conditions that permitted him to reside at a specified address in New South Wales, and included an obligation to report twice weekly to a suburban Sydney police station.
On 6 August 2010, the defendant was committed for trial in the District Court and on 6 September 2010, he was arraigned before a Judge of the District Court. At that time the defendant entered pleas of not guilty to all counts on the Information.
The defendant was not in attendance at Court at the next directions hearing on 30 September 2010. However, he was represented by counsel. On this occasion the matter was listed for trial in the District Court to commence on 6 June 2011.
On 3 November 2010, at a further directions hearing, the trial date was varied and an order was made that the trial commence on 15 August 2011. On this occasion the defendant was present, and was represented by senior counsel. On 10 February 2011, a further directions hearing was conducted. The defendant was present and represented by counsel. The commencement of the trial was confirmed for 15 August 2011.
On 7 April 2011, a further directions hearing was held. The defendant had been excused from attending on this occasion. Rice DCJ made a disclosure of matters relating to the defendant from a time when the Judge was a member of the independent bar. Senior counsel representing the defendant successfully applied for a copy of the transcript so that instructions could be taken.
On 19 June 2011, the defendant failed to report, as required by his bail agreement, to the police in New South Wales. The last date that the defendant had reported was 15 June 2011.
On 20 June 2011, a further directions hearing was held before Rice DCJ. The transcript indicates that the defendant was excused from attendance. Counsel appearing for the defendant sought a listing to allow submissions to be made that Rice DCJ recuse himself. That application was listed for hearing on 7 July 2011.
On 24 June 2011, the defendant failed to appear in the New South Wales District Court in respect of two offences against the Australian Passports Act 2005 (Cth). Each offence carried a maximum penalty of 10 years imprisonment. The purpose of that hearing was for the making of sentencing submissions.
On 30 June 2011, the prosecution made an oral application to Rice DCJ for an order directing the defendant’s attendance on the application that the Judge recuse himself, due to be heard on 7 July 2011. The prosecution application was granted. On this occasion, the defendant was absent, but was represented by senior and junior counsel.
On 7 July 2011, the application that Rice DCJ recuse himself was heard. The defendant failed to attend. The Judge heard submissions from senior counsel appearing for the defendant and reserved his decision. On this occasion the prosecution sought an order that the defendant’s bail be revoked and that a warrant be issued for his arrest. Rice DCJ declined to hear this application and on the following day, 8 July 2011, the application proceeded before Stretton DCJ. An order was made revoking the defendant’s bail. A warrant was issued for his arrest. Counsel appeared for the defendant but made no submissions in opposition to the application.
On 15 July 2011, Rice DCJ indicated that he would step aside as trial Judge. On 25 July 2011, a directions hearing was conducted before Brebner DCJ, who was now to preside at the trial due to commence on 15 August 2011. The defendant failed to appear on this occasion.
On 29 July 2011, the defendant again failed to appear in the New South Wales District Court in respect of the offences committed against the Australian Passports Act. On that occasion sentencing submissions were due to be made. The New South Wales District Court Judge issued a warrant for the defendant’s arrest.
On 5 August 2011, the matter was listed for mention before Brebner DCJ. The defendant failed to appear. On this occasion, the solicitor for the defendant sought leave to withdraw from representing the defendant in the proceeding. An affidavit was filed in support of the application. The affidavit disclosed that the solicitor had last met with and spoken to the defendant on 14 April 2011. On 3 June 2011 the defendant contacted the solicitor’s office to arrange an appointment on 7 July 2011. This date was not convenient to the solicitor. This was the last contact between the solicitor and the defendant. At this time the commencement of the trial had been delayed to 22 August 2011. The solicitor’s application to withdraw was adjourned until that date.
On 22 August 2011, senior counsel appeared for the solicitor and submissions were made in support of the application that permission be given for the solicitor to withdraw. Having heard submissions, Brebner DCJ granted the solicitor’s application. The prosecution then sought to proceed with the trial in the absence of the defendant. Brebner DCJ concluded that he had a discretion whether or not to proceed with the trial in the absence of the defendant. However, as mentioned earlier, he declined to proceed. Brebner DCJ then resolved to refer the abovementioned questions of law for the determination of the Full Court.
There is a further matter that needs to be noted. The Information originally included counts against another defendant, Leslie Graham Richards. At some time prior to 22 August 2011, Mr Richards was separately arraigned and pleaded guilty. The Information was then amended but still included one count against another defendant, Mr Brown, who, as mentioned above, applied for a separate trial.
The Commencement of a Trial
In South Australia there is no specific legislative provision concerning the presence or absence of a defendant at trial in the superior courts.
In Attorney General’s Reference No 1 of 1988,[1] King CJ considered that a trial in South Australia commences when the defendant is arraigned before the trial Judge. In reaching this conclusion King CJ drew attention to the terms of section 285A of the Criminal Law Consolidation Act which provides:
A court before which a person has been arraigned may, if it thinks fit, hear and determine any question relating to the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled.
[1] Attorney General’s Reference No 1 of 1988 (1988) 49 SASR 1.
King CJ reasoned that as a trial judge in South Australia can hear and determine questions relating to the trial before the jury is empanelled, it followed that the trial commenced following the defendant’s arraignment before the trial judge. In particular King CJ observed:[2]
In Newell's case, the High Court held that the trial commenced on the date of the accused's first arraignment before the court. This decision was based, however, upon an express provision of the Criminal Code of Tasmania which provides that the trial in criminal cases shall be deemed to be begun when the prisoner is called upon to plead. There are similar provisions in the Crimes Act 1900 (NSW), the Crimes Act 1958 (Vic) and the Criminal Code (Qld). There is no similar provision in South Australia where the matter is governed, subject to a qualification which I shall shortly mention, by the common law.
The common law rule is expounded in R v Tonner. In that case during the period which elapsed between the discharge of the jury in the first trial due to disagreement and the commencement of the retrial, the Criminal Justice Act 1982 which abolished the right to make an unsworn statement had come into operation and it was expressed to apply to trials except those which had begun before the commencement of the section. It was argued that the trial had commenced when the accused was first arraigned. The Court of Appeal rejected that argument and held that the trial commenced when the jury had taken the accused into their charge to try the issues.
The qualification, to which I referred above, in this State to this rule of the common law is to be found in s 285a of the Criminal Law Consolidation Act which provides that "a court before which a person has been arraigned may, if it thinks fit, hear and determine any question relating to the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled". The purpose of that section is not, I apprehend, to institute in this State an analogue of the American pre-trial motion system whereby questions of law would be determined in pre-trial proceedings distinct from the trial. The purpose is indicated by the final clause of the section. It is to enable questions of admissibility of evidence and other questions of law to be determined at trial before the jury is empanelled. The notorious mischief aimed at is the inconvenience and cost which was involved in keeping juries waiting and unoccupied for days and even weeks while voir dire hearings and preliminary arguments were conducted in their absence. The "court" referred to in the section is not the court as an institution, but the particular court constituted of the judge who is sitting to try the case. The arraignment is not the first arraignment at which the accused pleads but the process by which the accused is arraigned before the trial judge at the commencement of the trial. In this State, therefore, the trial commences when the accused having been arraigned before the judge who is to try him, that judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury.
[Footnotes omitted.]
[2] Attorney General’s Reference No 1 of 1988 (1988) 49 SASR 1, 5.
In the present proceeding the defendant was due to stand trial on 22 August 2011. That was the date on which he was to be arraigned before the trial Judge and, absent any preliminary matters, the trial would proceed forthwith before judge and jury. It follows that for the purposes of addressing the issues arising in this proceeding, the defendant was not present at the commencement of the trial. The within proceeding is to be distinguished from the circumstance where, a defendant having been present at the commencement of the trial chooses to absent him or herself during the course of the trial.
The District Court Proceeding
In support of the application made that the trial proceed in the absence of the defendant, the prosecutor outlined the prosecution case. It was said that the only inference which could reasonably be drawn from the conversations and text messages sought to be tendered, when considered in their entirety, is that those conversations and text messages relate to the distribution of drugs and to those drugs and times particularised in the charges.
Brebner DCJ considered that the prosecution appeared to have a strong case. However, he considered that on the face of it, this is a type of case where the prosecution evidence could not be adequately tested and the defendant’s answers could not adequately emerge in the absence of properly instructed defence counsel.
In order for the prosecution to establish its case, Brebner DCJ noted that it would need to prove, to the exclusion of all other possibilities, that it was the defendant who was involved in the relevant conversations and that it was in fact the defendant who was sending or receiving the relevant text messages. He considered that raising possibilities consistent with innocence could involve challenging the interpretations of the drug investigator, and ultimately the defendant’s version of what was actually meant by those conversations and messages. This would cast a duty on the prosecutor to take a challenging role to his own witnesses and a duty on the judge during the trial and when summing up to point out weaknesses in the prosecution case. Brebner DCJ considered that the application therefore turned on whether the modifications of the respective roles of counsel and judge in the trial would be sufficient to obviate a perceptible risk of miscarriage.
In the Judge’s view, although concluding that he had a discretion to commence the trial in the absence of the defendant, it was not appropriate to do so in the present proceeding.
Institutional Integrity
It was contended by amicus, in support of the Judge’s ruling, that each of the three integral components of the exercise of judicial power, namely adversarial justice, impartiality and fairness, would be compromised in a trial conducted in the absence of the defendant.
Amicus submitted that to commence a trial in the absence of a defendant impermissibly interferes with the institutional integrity of the District Court. It was submitted that the District Court would be incapable of administering adversarial justice as the defendant is not afforded an opportunity to hear the allegations made against him, to present evidence and to challenge the evidence of his antagonist. Further, it was submitted that any trial would be unfair due to a necessary and consequential abrogation of the defendant’s rights, including the right to representation although not at public expense,[3] the right to hear the allegations and to know the evidence adduced in support of them, the right to challenge the evidence,[4] the right to call and give evidence in one’s defence, [5] and the right to object to and challenge jurors.[6] As a consequence, it was argued that as any trial could not proceed as an adversarial trial, it could not be said that the Court was engaged in a proper exercise of judicial power.
[3] Dietrich v The Queen (1992) 177 CLR 292.
[4] Wakeley v The Queen (1990) 64 ALJR 321.
[5] Evidence Act 1929 (SA), section 18.
[6] Juries Act 1927 (SA) section 61.
Counsel submitted that the strict division of functions between the court and parties to the litigation preserves the integrity and impartiality of the judicial process. This occurs by precluding the court from actively partaking in the collation and presentation of evidence, and the strategic decision-making process. It was argued that the exercise of judicial power must be conducted in accordance with the Constitution, which requires that courts which may exercise federal jurisdiction possess a number of defining characteristics. It is within this context that parties are afforded an opportunity to hear the allegations made against them, to challenge such evidence, and to present evidence accordingly.
Counsel contended that a trial at which a defendant is absent erodes its adversarial character. The Court would no longer be called to adjudicate between two competing parties. Instead, it may be contemplated that the situation be remedied by imposing additional obligations on the prosecutor and trial judge. It was said that a prosecutor may be required to take a more challenging approach to their own witness. Counsel pointed to the emphasis of the adversarial context referred to in Nudd where Gleeson CJ explained:[7]
Judges can do their best to minimise the effects of differences between the abilities of opposing counsel, but their capacity to intervene is limited by their own obligations of neutrality.
[7] Nuddv The Queen (2006) 162 A Crim R 301, [11].
It was argued that the blurring of the roles of parties in this manner further erodes the appearance of impartiality, another defining characteristic of a court.[8] It would be necessary for a trial judge to highlight to a jury any defects in the prosecution case during the trial and in the course of the summing up. The question that then arises is how this upholds the notion of the appearance of impartiality. Counsel referred to Dietrich where Mason CJ and McHugh J made the following observations:[9]
The hallowed response that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a “helping hand” to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems.
[Footnotes omitted.]
[8] Forge v Australian Securities and Investments Commission (2006) 288 CLR 45.
[9] Dietrich v The Queen (1992) 177 CLR 292, 302.
Amicus disputed the proposition of the Solicitor-General that the relevant question is whether a fair trial can be conducted in the absence of the defendant. It was submitted that the question has to be taken in the context arising once the defendant is absent. That is, can a trial still be characterised as fair where: the defendant is not present, does not have knowledge as to the nature of the allegations, does not have the opportunity of hearing, testing and challenging the evidence led, cannot exercise the right to give evidence, and does not have the opportunity to challenge and object to the constitution of the jury. It is contended that to look to the motives of the defendant is to critique policy considerations for trial in absentia.
The Solicitor-General submitted that the above contentions appear to draw upon the constitutional principle derived from Kable v Director of Public Prosecutions (NSW).[10] It was suggested that the Kable principle had no application to the present proceeding for several reasons. It was said that the Kable principle operates as a constraint upon the legislative power of a State and has no direct application in a case such as this where the Court is concerned with the content of the common law of Australia. Further, at the time of the alleged commission of the offences contained in the Information, his arrest and charge, the defendant was resident in New South Wales. Accordingly the District Court exercised, and in any trial would exercise, federal jurisdiction in the conduct of the matter.
[10] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
The Solicitor-General developed this submission through the following propositions:
-Section 75(iv) of the Constitution vests original jurisdiction in terms of authority to adjudicate in all matters between a State and a resident of another State.[11]
-Section 77(ii) of the Constitution vested in the Parliament power to define the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the court of the States. Section 39(1) of the Judiciary Act 1903 (Cth) made exclusive to the High Court the jurisdiction vested in that Court by the Constitution which the Constitution did not itself make exclusive. That is, section 39(1) made exclusive to the High Court jurisdiction in all matters between a State and a resident of another State. ‘Matters’, within the meaning of section 75(iv), includes criminal prosecutions.[12]
-Jurisdiction to try a matter between a State and a resident of another State is vested in the courts of the States by section 39(2) of the Judiciary Act. As the District Court is a court of a State within the meaning of section 39(2), it has jurisdiction to try the matter. In the exercise of that jurisdiction, sections 79 and 80 of the Judiciary Act serve to pick up the laws of this State, some of which include those relating to procedure, evidence and the competency of witnesses. Those laws then become federal laws.[13]
[11] Ah Yick v Lehmert (1905) 2 CLR 593, 603; Gould v Brown (1998) 193 CLR 346, 379; Harris v Caladine (1990-1991) 172 CLR 84, 136; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, [53].
[12] Baxter v Commissioners of Taxation(NSW) (1907) 4 CLR 1087, 1142; Momcilovic v The Queen (2011) 85 ALJR 957, [6] (French CJ), [134]-[139] (Gummow J), [280] (Hayne J), [594] (Crennan and Kiefel JJ).
[13] Pedersen v Young (1964) 110 CLR 162, 165 (Kitto J); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 610.
Consequently it was argued that this Court is not concerned with notions of whether or not a trial in the absence of the defendant undermines the institutional integrity of the District Court such that it is no longer a fit repository of federal judicial power. Rather, it was said that the Court is concerned with the essential requirements of the exercise of federal judicial power. The common law, it was said, does not countenance the exercise of judicial power in a manner repugnant to the Constitution.
In our view, these submissions advanced by the Solicitor-General should be accepted. The primary question in this case is whether or not the common law of Australia permits the trial of a defendant charged with a State offence in the exercise of federal jurisdiction to be commenced and continued to verdict in the absence of the defendant.
The Solicitor-General submitted that anterior to this primary question is the question of what constitutional requirements exist in the exercise of federal judicial power by a court of a State, in the conduct of the trial of a State offence, where the defendant is the resident of another State.
The Solicitor-General argued that the fact that the District Court exercises federal judicial power serves to acknowledge the source of the Court’s power. That source is the Judiciary Act. Relevantly, the Judiciary Act is supported by section 77(iii) of the Constitution. It is the judicial power of the Commonwealth that is exercised. By virtue of the separation of powers and the provisions of Chapter III of the Constitution, such power cannot be exercised “in a manner which is inconsistent with the essential character of a court or with the nature of judicial power”.[14]
[14] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 26-7; Polyukhovich v The Commonwealth (1991) 172 CLR 501, 607, 704.
Attention was drawn to the following observations of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration:[15]
There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and “could not be excluded from” the judicial power of the Commonwealth.
[Footnotes omitted.]
[15] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27. See also Polyukhovich v The Commonwealth (1991) 172 CLR 501, 608-9; The Waterside Workers’ Federation of Australia v J W AlexanderLtd (1918) 25 CLR 434, 444; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, 107.
The Solicitor-General further submitted that whether or not the District Court is called upon to exercise judicial power is not in issue in this case. It is the method or process to be invoked in the adjudgment and punishment of criminal guilt in the exercise of judicial power that is under discussion. It is this method or process of the exercise of power that is at the heart of the submission.
The Solicitor-General referred to the judgment of Kitto J in Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, on the topic of the content of judicial power:[16]
Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.
[16] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374-5.
Finally the Solicitor-General submitted that there was an important distinction to be made between ancillary powers and ultimate powers to make binding determinations as to guilt or innocence.[17] He advanced the following propositions:
-A law does not usurp judicial power because it regulates the method or burden of proving facts.[18] A law that governs the exercise of a jurisdiction which it confers does not trespass upon the judicial function.[19]
-A law would impermissibly interfere with the exercise of judicial power if it were to require a court to act contrary to the rules of natural justice.[20]
-A law that directs a court as to the order or judgment it must make will be repugnant to Chapter III.[21]
[17] Nicholas v The Queen (1998) 193 CLR 173, [71] (Gaudron J).
[18] The Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1, 12 (Knox CJ, Gavan Duffy and Starke JJ); Williamson v Ah On (1926) 39 CLR 95, 122 (Higgins J); Nicholas v The Queen (1998) 193 CLR 173.
[19] Leeth v The Commonwealth (1992) 174 CLR 455, 470 (Mason CJ, Dawson and McHugh JJ).
[20] Leeth v The Commonwealth (1992) 174 CLR 455, 470 (Mason CJ, Dawson and McHugh JJ); International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319, [55] (French CJ), [97]-[98] (Gummow and Bell JJ).
[21] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 36-7 (Brennan, Deane and Dawson JJ); International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319.
In our view these contentions of the Solicitor-General should be accepted and should guide the approach of this Court in answering the questions reserved. In a sense, the same issues arise whether approached in the manner advocated by the Solicitor-General, or whether considered as amicus contended under Chapter III of the Constitution.
Ultimately, a trial can only proceed if the court is engaged in a proper exercise of judicial power. If that were not to occur, the trial should not proceed.
Against the background of the above authorities, the question that ensues is whether the absence of a defendant from the commencement of a trial would interfere with the essential characteristics of judicial power. A number of tests have been formulated to assist the resolution of this question.
In Thomas v Mowbray,[22] it was said that a law requiring a court to depart to a significant degree from the methods and standards which have characterised judicial activities would be invalid.[23]
[22] Thomas v Mowbray (2007) 233 CLR 307.
[23] Thomas v Mowbray (2007) 233 CLR 307, [111] (Gummow and Crennan JJ), [600] (Callinan J), [651] (Heydon J).
Further, in Humby; Ex parte Rooney,[24] it was said that legislation would be invalid if it “constituted a marked interference with the judicial process and circumscribed the judicial function and the discretions incidental to it”.[25]
[24] The Queen v Humby; Ex Parte Rooney (1973) 129 CLR 231.
[25] The Queen v Humby; Ex Parte Rooney (1973) 129 CLR 231, 250.
In Chu Kheng Lim v Minister for Immigration,[26] it was held that a law which requires or authorizes a court to “exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power” would be invalid.[27]
[26] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
[27] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ). See also, Nicholas v The Queen (1998) 193 CLR 173, [73] (Gaudron J).
In Nicholas,[28] a more specific test was identified concerning legislation that modified the law of evidence and procedure. For Brennan CJ “a law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid. However, a law which merely prescribes a court’s practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion.”[29] Gummow J considered that the essential question was whether the impugned provision was “such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused other than by the exercise of the judicial power of the Commonwealth.”[30]
[28] Nicholas v The Queen (1998) 193 CLR 173.
[29] Nicholas v The Queen (1998) 193 CLR 173, [20].
[30] Nicholas v The Queen (1998) 193 CLR 173, [145].
Ultimately the Solicitor-General submitted that the most helpful test to be applied was that expressed by Gaudron J in Nicholas:[31]
In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.
[31] Nicholas v The Queen (1998) 193 CLR 173, [74].
It is our view that the above authorities do provide useful tests to be applied in resolving the questions referred.
A Trial in the Absence of the Defendant
An issue that has troubled the Courts over many decades is whether a trial may proceed in the absence of the defendant. Historically, the issue arose in circumstances where the defendant, being present during part of the trial, then absented himself.
An early example is to be found in the Victorian decision of Abrahams.[32] In that decision, Williams J considered that if a defendant absconded and failed to appear at trial, there had clearly been a waiver of the right to be present, and that in that circumstance, the prosecution may elect to go on with the trial in the absence of the defendant. Williams J considered that in such an event, the Judge had a discretion as to whether the trial should proceed or not. These were obiter observations:[33]
The primary and governing principle is, I think, that in all criminal trials the prisoner has a right, as long as he conducts himself decently, to be present, and ought to be present, whether he is represented by counsel or not. He may waive this right if he so pleases, and may do this even in a case where he is not represented by counsel. But then a further and most important principle comes in, and that is, that the presiding Judge has a discretion in either case to proceed or not to proceed with the trial in the accused's absence.
[32] R v Abrahams (1895) 21 VLR 343.
[33] R v Abrahams (1895) 21 VLR 343, 346.
Hood J remarked:[34]
All that we are here deciding, in my opinion, is that the presiding judge may in misdemeanours proceed without the presence of the prisoner, where the absence is voluntary. He has in law a discretion, but that discretion should be exercised with great reluctance, and with a view rather to the due administration of justice than to the convenience or comfort of anyone.
[34] R v Abrahams (1895) 21 VLR 343, 353.
In Jones, Planter and Pengelly,[35] three defendants were charged with a number of offences. The defendants Planter and Pengelly, who were on bail, absconded after the prosecution case and Jones’ defence case had been completed. The Judge discharged the jury and a new trial began a fortnight later. While Planter and Pengelly were still at large, an application was made that the matter should not proceed in their absence. The Judge ruled that the trial should continue and all three defendants were convicted. Lord Lane CJ held that it is plain in principle and has been since the end of the 19th century that a judge has a discretion to order a trial to start or continue not only where a defendant voluntarily absents himself but also where he is involuntarily absent:[36]
There is no distinction in principle between a defendant who misbehaves in such a way as to make his/her removal from court necessary and on the other hand the person who deliberately refuses to attend the trial when he is at liberty to do so.
[35] Jones, Planter and Pengelly [1991] Crim LR 856.
[36] Cited in R v Hayward [2001] 1 QB 862, [6].
In Hayward,[37] it was held that though a defendant has a right to be present at his trial and a right to be legally represented, these rights could be waived, separately or together, wholly or in part, by the defendant himself. That is, they may be wholly waived if, knowing, or having the means of knowledge as to when and where his trial is to take place, the defendant deliberately and voluntarily absents himself and withdraws instructions from those representing him. Similarly, they may have been waived in part if, being present and represented, the defendant behaves in such way during the course of the trial as to obstruct the proper course of the proceedings or to withdraw instructions.
[37] R v Hayward [2001] 1 QB 862.
Rose LJ considered that the trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and his legal representatives. However, this discretion must be exercised with great care, and it is only in the rare and exceptional case that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented. The Court considered that in exercising that discretion, fairness to the defence is of prime importance, but fairness to the prosecution must also be taken into account. Further, the Judge must have regard to all the circumstances of the case including:[38]
[38] R v Hayward [2001] 1 QB 862, [22].
(i)the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;
(ii)whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;
(iii) the likely length of such an adjournment;
(iv)whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;
(v)whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;
(vi)the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;
(vii)The risk of the jury reaching an improper conclusion about the absence of the defendant;
(viii) the seriousness of the offence, which affects defendant, victim and public;
(ix)the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
(xi)where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.
Rose LJ went on to say:[39]
If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.
[39] R v Hayward [2001] 1 QB 862, [22].
In the later decision of Jones (Anthony),[40] the defendant and a co-defendant were both arraigned and pleaded not guilty. On the start date for the trial, neither surrendered. The trial date was relisted to commence some months later. By this date, the defendants were still to be arrested. Legal representation for both defendants withdrew. The trial Judge ruled that the trial should begin, taking the view that the defendants had deliberately frustrated the attempt of the prosecuting authorities to have the case finally concluded. He indicated that anything of advantage to the defendants would be highlighted during the evidence and that any material of assistance to the defendants would be put before the jury. The trial proceeded. During summing up, the Judge warned the jury not to hold the absence of the defendants against them.
[40] R v Jones (Anthony) [2003] 1 AC 1.
Both defendants were convicted. On appeal to the House of Lords, the question before the House was “Can the Crown Court conduct a trial in the absence, from its commencement, of the defendant?”.[41] The House of Lords dismissed the appeal, holding that a judge has a discretion to commence a trial in the defendant’s absence, though it was to be exercised with great caution, affirming the decision in Jones, Planter and Pengelly.[42]
[41] R v Jones (Anthony) [2003] 1 AC 1, [1].
[42] Jones, Planter and Pengelly [1991] Crim LR 856.
The members of the Court all answered the certified question in the affirmative. In reaching their conclusion, their Lordships accepted that it was well established that a judge had a discretion to proceed with a trial at which the defendant had been present at the commencement of the trial, but was absent once the trial was underway. The discretion in these circumstances, as Lord Bingham noted, was supported by a long line of authority:[43]
For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant; or misbehaviour; or because the defendant has voluntarily absconded. In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. The existence of such a discretion is well-established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.
[Footnotes omitted.]
[43] R v Jones (Anthony) [2003] 1 AC 1, [6].
Lord Bingham noted that as a matter of general principle, it was hard to discern any principle of distinction between continuing a trial in the absence, for whatever reason, of the defendant and beginning a trial which has not in law commenced. Lord Bingham continued:[44]
… If, as is accepted, the court may properly exercise its discretion to permit the one, why should it not permit the other? It is of course true that if a trial has begun and run for some time, the inconvenience to witnesses of attending to testify again on a later occasion, and the waste of time and money, are likely to be greater if the trial is stopped than in the case of a trial that has never begun. But these are matters which, however relevant to the exercise of discretion, provide no ground for holding that a discretion exists in the one case and not in the other. … If a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial, voluntarily absents himself, there is no reason in principle why his decision to violate his obligation to appear and not to exercise his right to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended.
[44] R v Jones (Anthony) [2003] 1 AC 1, [10].
Lord Nolan considered that the critical question for the judge was whether the defendant “has deliberately and consciously chosen to absent himself from the court.”[45] In his view, where a defendant had the advantage of legal advice and representation at all stages prior to the commencement of the trial, his deliberate and conscious choice to take no further part in the proceedings could permissibly be described as a waiver of his rights of attendance and of legal representation at his trial.
[45] R v Jones (Anthony) [2003] 1 AC 1, [18].
Lords Hoffman and Rodger were of the view that it was not necessary for a trial court to make a finding that the defendants had deliberately ‘waived’ their right to be present at trial. Lord Hoffman preferred the notion that they deliberately chose not to exercise their right to be present or to give adequate instructions to enable lawyers to represent them. The majority of the Lords considered that the ultimate issue was whether the defendant received a fair trial or not.
Amicus submitted that there is no Australian authority for a common law power or discretion to commence a trial in the absence of a defendant, and that the English authority should not be followed in Australia.
In respect of Jones (Anthony)[46] it was submitted that the application of waiver was problematic. It was argued that a party cannot waive a right of which they are not aware, and a court could not proceed on the assumption that a defendant has such knowledge. Courts do not routinely warn a defendant that if he or she is not present for his or her trial it may commence in their absence, and may do so without them being legally represented.
[46] R v Jones (Anthony) [2003] 1 AC 1.
It was further argued that the Court in Jones (Anthony)[47] relied on the existence of the appellate process to remedy any unfairness post-trial. Counsel submitted that the fact that there is an avenue of appeal does not cure the inherent unfairness of commencing a trial in the absence of the defendant. Amicus referred to the case of International Finance Trust Co Ltd v NSW Crime Commission where French CJ made the following observations:[48]
The question whether there has been an impermissible invasion of the judicial function of the Court is not to be resolved simply by engaging in a calculus of fairness and assessing whether prejudice to a party, flowing from denial to it of a hearing prior to a restraining order being made, can be remedied at some later time.
It was submitted that the presence of an appellate process is not an appropriate way in which to view the issue.
[47] R v Jones (Anthony) [2003] 1 AC 1.
[48] International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319, [48].
The Solicitor-General disputed the application of International Finance Trust Co Ltd v NSW Crime Commission.[49] He submitted that in that case the right to be heard at first instance had been excluded upon the executive determining to proceed ex parte. This differed from the present case where the Director took no step to make an application that the matter proceed in this way. Rather, the matter was at all times inter partes. It was the deliberate choice of the defendant not to attend, upon which basis this case may be distinguished.
[49] International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319.
Other Common Law Jurisdictions
In Canada, a general principle exists that a defendant is entitled to be present during the whole of his or her trial.[50] A defendant who absconds during the course of his or her trial is deemed to have waived his or her right to be present at the trial.[51] In addition, a defendant who has elected to be tried by a jury and then does not appear at the beginning of, or during the trial, may lose the right to be tried by jury. The defendant is then deemed to have elected to be tried by a judge alone. This is so unless the defendant can establish that there was a legitimate excuse for the failure to appear or the Attorney-General directs otherwise.[52]
[50] Criminal Code, RSC 1985, c C-46, section 650(1).
[51] Criminal Code, RSC 1985, c C-46, section 475(1)(a).
[52] Criminal Code, RSC 1985, c C-46, section 598.
In New Zealand, reliance has been placed on the House of Lords decision in Jones (Anthony)[53] when determining whether to commence or continue a trial in the absence of the defendant.[54]
[53] R v Jones (Anthony) [2003] 1 AC 1.
[54] R v Paraku [2002] DCR 669, R v Sthmer HC WN T1064/01 (17 June 2003).
Conclusion on the First Question
It is a general principle of the common law that a defendant should be present throughout trial.[55] As the High Court observed in Lipohar,[56] there cannot, in the ordinary course, be a trial in absentia.
[55] R v Collie (2005) 91 SASR 339.
[56] Lipohar v The Queen (1999) 200 CLR 485, [69].
It is also established in Australia that a trial Judge has a discretion to continue a trial in the absence of a defendant who, while present at its commencement, subsequently falls ill, or misbehaves and is excluded.[57] It is also settled that a trial may continue where a defendant who was present at its commencement thereafter voluntarily absents himself or herself.[58] It is less clear whether such a discretion exists to commence a trial in the defendant’s absence.
[57] R v Abrahams (1895) 21 VLR 343, 347; R v King (2004) 155 ACTR 55, [7]-[14].
[58] R v Jones (1998) 72 SASR 281; R v Rigney (1988) 48 SASR 72.
The ultimate responsibility of the court is to ensure that every defendant has a fair trial according to the law. In Dietrich this was explained by Mason CJ and McHugh J in the following terms:[59]
The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system. As Deane J. correctly pointed out in Jago v District Court (N.S.W.), the accused’s right to a fair trial is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial, for no person can enforce a right to be tried by the State; however, it is convenient, and not unduly misleading, to refer to an accused’s positive right to a fair trial. The right is manifested in rules of law and in practice designed to regulate the course of the trial.
[Footnotes omitted.]
[59] Dietrich v The Queen (1992) 177 CLR 292, 299-300. See also Jago v District Court of New South Wales (1989) 168 CLR 23, 29, 72, 75.
This right of a defendant to have a fair trial may be viewed as a constitutionalised concept, central to the defining characteristic of a court within the meaning of Chapter III of the Constitution. It must first be observed that the trial is adversarial. In Forge v Australian Securities and Investments Commission,[60] the High Court considered that an important element in the institutional characteristics of courts in Australia is their capacity to administer the common law system of an adversarial trial. Vital to this system is the conduct of the trial by an independent and impartial tribunal.
[60] Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, [64]. See also Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, [162].
For our part, we find the reasoning in the approach of the members of the House of Lords in Jones (Anthony)[61] compelling. There appears to be no reason in principle for distinguishing between the circumstances of a defendant who is voluntarily absent before the trial, and a defendant who absconds during the course of a trial. Principle strongly supports the conclusion that a trial judge retains a general discretion to proceed with the trial in the absence of the defendant. However, that discretion should be exercised with caution. The factors discussed by Lord Justice Rose in Jones, Planter and Pengelly[62] are important considerations.
[61] R v Jones (Anthony) [2003] 1 AC 1.
[62] Jones, Planter and Pengelly [1991] Crim LR 856.
The House of Lords decision in Jones (Anthony)[63] has been referred to with apparent approval by intermediate Courts of Appeal in South Australia, Western Australia, Victoria, and in the Federal Court.
[63] R v Jones (Anthony) [2003] 1 AC 1.
In Collie, Duggan J speaking on this topic, observed:[64]
As a general rule, an accused person must be present throughout his or her trial. Recognised exceptions to the rule include misbehaviour by the accused or voluntary absence such as by absconding. The general rule was stated by Lord Bingham in R v Jones as follows:
…
[As extracted above.]
[64] R v Collie (2005) 91 SASR 339, [33].
In Hellenic Republic v Tzatzimakis, Finkelstein J relevantly commented:[65]
Even now a trial may proceed in the accused's absence. I put to one side statutory provisions for in absentia trials for summary offences such as are found, for example, in s 41 and Sch 2 of the Magistrates' Court Act (1989) (Vic). According to the common law, a criminal case begins when the accused has been arrested and charged. At this point the court assumes jurisdiction over the accused. As regards his trial, it is a fundamental principle of the common law that an accused has a right to be present. But the right is not unqualified. In exceptional circumstances, the trial may proceed in his absence, perhaps even without an arraignment. The circumstances include, but are not confined to, those in which the accused is ill, misbehaves himself or has voluntarily absconded. In R v Jones the Law Lords regarded these as instances of a trial which takes place in the accused's absence. The issue in that case was whether a criminal trial could proceed when the defendant had absconded. The precise question that was certified for the House was: "Can the Crown Court conduct a trial in the absence, from its commencement, of the defendant?" The speeches are replete with references to the trial of an absconding defendant as a trial in his absence. A few examples will suffice.
Australian authority appears to adopt and confirm the correctness of the observations of the House of Lords in Jones (Anthony).[66]
[65] Hellenic Republic v Tzatzimakis (2003) 127 FCR 130, [89].
[66] R v Jones (Anthony) [2003] 1 AC 1.
For these reasons we have reached the conclusion that Brebner DCJ had a discretion as to whether to proceed with the trial of the defendant in his absence.
The Second Question Reserved
On 23 August 2011, Brebner DCJ published his reasons for refusing to proceed with the defendant’s trial in his absence.
The Solicitor-General submitted that Brebner DCJ’s exercise of discretion miscarried. It was contended that the Judge proceeded under a serious misapprehension as to the role of the trial judge and of the prosecutor in the event of the trial proceeding in the absence of the defendant. It was further contended that the Judge had proceeded under a misunderstanding of fact. The Solicitor-General invited the Court to answer the second question ‘no’ and to remit the matter for further consideration by the trial Judge in accordance with the reasons of this Court.
It was a principal submission of the Solicitor-General that where a trial proceeds where a defendant chooses not to attend, knowing that the trial is to take place, it cannot be said to be unfair in the sense that the trial has not been conducted according to law by reason of the defendant’s absence, or inability to truly participate.
It was submitted, consistently with the observations of Lord Bingham in Jones (Anthony),[67] that if a trial can continue when a defendant absents himself or herself during the trial, then it cannot be said that to commence a trial in the absence of the defendant is offensive to the exercise of judicial power. It was argued that it is necessary to address the content of the constitutional protection of judicial power. It was accepted that the Constitution protects procedural fairness, but it does not follow that every procedural step in a trial receives constitutional protection.
[67] R v Jones (Anthony) [2003] 1 AC 1.
The Solicitor-General submitted that a fair trial can take place when an informed choice has been made by a defendant not to attend at the trial. If a defendant chooses not to attend a trial, a consequence is that the defendant is to be taken to have elected not to exercise these rights. It was submitted that this was a preferable analysis to that of waiver.
A trial is accusatorial in nature. The essential function of the judge is to ensure that the trial is conducted fairly according to the law.
The prosecutor’s role was explained by Deane J in Whitehorn:[68]
Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.
[68] Whitehorn v The Queen (1983) 152 CLR 657, 663-4. See also Dyers v The Queen (2002) 210 CLR 285, 293.
It is for the prosecution to make good their accusation, thereby placing the onus and standard of proof on the prosecutor.
The responsibility for the defence case lies with the defendant. This involves more than just the presentation of an affirmative case. It involves the challenging of the admissibility of evidence and, where admitted, the testing of it.
It is to be accepted that the exercising of the discretion to proceed to trial in the absence of the defendant requires a departure from the prosecutor and judge’s ordinary role in an adversarial trial. For example, a trial judge may well be required to highlight to the jury any defects or potential defects in the prosecution case, which would not necessarily be confined to the summing up. It is also to be accepted that the prosecutor may need to take a challenging approach to their own witnesses in examination-in-chief.
Specifically, when summing up, the trial judge would need to direct the jury that the absence of the defendant could not be used against him or her and does not enhance or fill any defects in the prosecution case.
Importantly, should the decision be made to proceed, that decision may be revisited at anytime. Likewise, the defendant’s appeal right must remain available.
As discussed earlier, Rose LJ in Hayward[69] set out a number of considerations to guide a court when considering whether to proceed with the trial in absentia. One was that the discretion to proceed is to be exercised with great care. A further consideration was described as fairness to the defence, this being a consideration of prime importance.
[69] R v Hayward [2001] 1 QB 862.
In the within proceeding, the earlier outlined chronology demonstrates that the defendant was present in court on 3 November 2010 when, on his application, the trial date was varied and the allocated date of 6 June 2011 was vacated. A new trial date of 15 August 2011 was then set. The defendant also attended on a further directions hearing on 10 February 2011 when the trial date of 15 August 2011 was confirmed.
It appears in the chronology that the defendant last attended before the District Court in Adelaide on 10 February 2011. Since that time he has breached the terms of his bail by failing to attend court. It also appears that the defendant failed to comply with his bail reporting requirements on and after 19 June 2011. Further, the defendant failed to attend before the District Court in Sydney on 24 June and 29 July 2011, when on both occasions, sentencing submissions were to be made to the Court in respect of offences against the Australian Passports Act.
On 7 April 2011, the issue of Rice DCJ recusing himself arose. Counsel appearing for the defendant on that occasion successfully applied for a copy of the transcript, so that it could be provided both to the instructing solicitor and to the defendant. On 20 June 2011, the defendant’s solicitor sought to have the matter listed for argument on whether Rice DCJ should recuse himself. On 7 July 2011 at a time when the defendant did not attend, despite an obligation to do so, senior counsel represented the defendant and made submissions on the application that Rice DCJ recuse himself. It was not until 5 August 2011 that the defendant’s solicitor sought leave to withdraw from representing the defendant in the proceedings.
An affidavit before the Court from Detective Sergeant Anthony William Brain detailed the attempts made by the police to locate the defendant. That affidavit provided circumstantial evidence of the defendant making telephone contact with family and associates during July and August 2011.
Brebner DCJ in the course of his reasons concluded that:
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.
In our view these findings were open having regard to the material on the court file and the affidavit evidence referred to by the Judge. Further, we are of the view that they are the appropriate findings to be made on the material before this Court.
The defendant being aware that his trial was due to commence in August 2011 made the deliberate choice not to attend. Further, he made the deliberate choice not to be legally represented at the trial. It is against the background of these findings that the Judge was to consider his discretion whether to proceed with the trial in the absence of the defendant.
The Solicitor-General submitted that the Judge erred in the exercise of his discretion and in particular misunderstood the role and responsibilities of a judge presiding at a trial in the absence of a defendant. Attention was drawn to the following remarks of Brebner DCJ:
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.
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.
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.
It was submitted that the Judge engaged in a hypothetical exercise in reaching the conclusion that prosecuting counsel would be placed in an inappropriate and invidious position in having to necessarily cross-examine prosecution witnesses. In the submission of the Solicitor-General this was an inappropriate conclusion. The evidence to be placed before the Court by the prosecution was of records of text messages and telephone conversations between the defendant and associates. It was also proposed that an expert witness be called to allow these messages and conversations to be properly understood. The prosecutor would be obliged to ensure that the evidence was led in a full and fair manner. Given the nature of the evidence proposed to be led, it is difficult to perceive how any obligation to cross-examine would arise.
Brebner DCJ then addressed his role as trial Judge and observed:
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.
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.
The obligation of the trial judge may extend to the asking of questions thought appropriate, and the addressing of any weakness in the prosecution case that might otherwise not be evident to the jury. The judge may need to comment on the evidence during the course of the trial, and in particular when summing up. In our view, however, this would not involve the judge entering into the arena of counsel or, as the Judge put it, “trespassing into what would ordinarily be counsel’s territory.” We do not consider that in conducting the trial, the Judge would be required to conduct himself in a way that would be inimical to the proper role of trial Judge.
We have reached the conclusion that the Judge erred in the exercise of his discretion. The Judge wrongly concluded that a fair trial would necessitate prosecution counsel being placed in an unacceptable and invidious position and wrongly concluded that as trial Judge he would be required to conduct himself in a manner that was inimical to his role as trial Judge. Accordingly, it follows that his decision not to proceed with the trial in the absence of the defendant should be set aside.
Conclusion
The Questions of Law Reserved should be answered as follows:
1. Was I right to conclude that the common law of Australia allows for the trial of a defendant to commence and continue to verdict in their absence? YES
2. If the answer to question 1 is “yes”, in the circumstances of this case, was I right to refuse the application to commence and continue to verdict the defendant’s trial in his absence? NO
In the circumstances it is appropriate to remit the matter to the District Court for a re-hearing of the prosecution application that the trial proceed in the absence of the defendant. There is no reason why Brebner DCJ should not hear the application. The application should be considered having regard to the reasons of this Court.
PEEK J. Question of law reserved pursuant to s 350(2)(b) of the Criminal Law Consolidation Act 1935 (SA).
INTRODUCTION
I have had the advantage of reading the joint judgment of Gray and Sulan JJ. I substantially adopt the chronology of events there set out.
The reserved questions of law
A District Court Judge has reserved the following questions of law to be determined by the court:
1Was I right to conclude that the common law of Australia allows for the trial of a defendant to commence and continue to verdict in their absence?
2If the answer to question 1 is “yes”, in the circumstances of this case, was I right to refuse the application to commence and continue to verdict the defendant’s trial in his absence?
The District Court Judge referred to the state of the authorities in England and Australia relevant to the first question. As to England, his Honour concluded that there was authority, in particular the decision of the House of Lords in R v Jones, for the proposition that a Judge may order that a trial be commenced and continued to finality in the absence of the defendant.[70] Regard was had to Lord Bingham’s rhetorical question: “If, as is accepted, the court may properly exercise its discretion to permit the one [continuing a trial in the absence of a defendant] why should it not permit the other [beginning a trial which has not in law commenced]?”
[70] [2003] 1 AC 1.
As to Australia, his Honour concluded that “there is no authority which stands for the proposition that the same discretion exists in this country and nor is there any authority which directly stands in the way of its existence”. He went on to state that “there is every reason in principle and policy why trial Judges in this State should have such a discretion” as that which reposes in Judges in England.
His Honour ruled that he did have such a discretion but proceeded to exercise it adversely to the prosecution in this particular case. He referred the two questions reproduced above for the consideration of this court.
Formal matters
I will use the word “trial” to mean a trial by jury for an indictable offence being the form[71] of trial with which the reserved questions are directly concerned.[72]
[71] It is possible for an accused in South Australia to elect for a trial by Judge alone on the present charges and it is likely that the same considerations and the same result to which I come would apply to such a trial. However, since a defendant must elect for such a trial at his first arraignment and Mr Gee (who attended that arraignment) did not so elect, I do not intend to consider that matter further.
[72] However, the matter is complicated by the previous differences in the modes of trial for felony and misdemeanour and the blurring effect of the abolition of that dichotomy and I will consider these matters below. Obviously the matter of summary offences and their disposition is not within the purview of the present discussion.
Since the present defendant is male, I will discuss matters relating to the defendant and to defendants generally by reference to the male gender.
Finally, persons rejoicing in the name of Jones play a considerable part in what follows and confusion is possible. I will generally add the first name to mitigate such confusion. The cases of the four different Messrs Jones (with first names where discoverable) in chronological order are as follows:
·R v Robert Jones (No 2) [1972] 1 WLR 887
·R v Jones, Planter and Pengelly [1991] CrimLR 856[73]
·R v Justin Jones (1998) 72 SASR 281
·R v Anthony Jones – Court of Appeal [2001] 1 QB 862 (sub nom R v Hayward)
·R v Anthony Jones – House of Lords [2003] 1 AC 1
[73] First name unknown.
Brief summary of the judgment
Decisions of the House of Lords[74] do not bind this court and the decision in R v Anthony Jones[75] should not be followed. There is a clear rule of the common law of Australia that a trial must be conducted in the presence of the defendant. Some limited and defined exceptions have been accepted, including that “exceptionally the trial may continue where the defendant fails to appear at his trial after the trial has started”,[76] but the rule itself remains and continues to prohibit the commencement of a trial in the absence of the defendant. There is a substantive and entrenched distinction as between commencing and continuing a trial in the absence of a defendant. Authoritative statements of the High Court supporting the existence of the rule remain to be obeyed unless and until the High Court declares that the common law is otherwise or Parliament changes the law. The above is sufficient to require a negative answer to Question One.
[74] From October 2009, the Supreme Court of the United Kingdom.
[75] [2003] 1 AC 1.
[76] Ebatarinja v Deland (1998) 194 CRL 444, 454.
However, a negative answer is also required for each of the following further reasons. First, a purported trial commencing in the absence of the defendant would not be a “jury trial” within the meaning of s 6 Juries Act 1927 (SA). Second, the common law and South Australian statutory provisions require a defendant to be arraigned in the presence of the jury panel and to enter a plea personally. Third, the common law and South Australian statutory provisions require a defendant to be present during the jury empanelment process.
It would appear that none of the above law areas invests a trial Judge with a discretionary power to commence a trial in the absence of the accused who has absconded prior to trial.
The only statutory provision that invests a trial Judge with a discretionary power to actually commence (as distinct from continue) a trial in the absence of the defendant is s 361(3) of the Criminal Code (NT) which does not address the topic of absconding defendants but rather a particular problem which is similar to the truly unruly defendant but would not be within that exception. As noted above, it provides:
If an accused person injures himself in order to prevent the trial commencing or continuing the court may direct a plea of not guilty to be entered and the trial shall proceed in his absence.
The statutory regime in Scotland
It is notable that the law in Scotland, if not from time immemorial then from (at the latest) the comfortably early date of 1587, until very recently[228] was clear and inflexible: no part of a trial could take place without the defendant being present. Thus Lord Rodger of Earlsferry correctly stated in R v Anthony Jones as to the then state of Scottish law:[229]
[228] Coming into force on 4th June 2004 - after the decision in R v AnthonyJones
[229] [2003] 1 AC 1, 21. See also Lord Bingham at page 10.
[43]I refer also to Alison’s Practice of the Criminal Law of Scotland, (1833), p 349. Although not mentioned by Hume, there was in fact some statutory support for the rule in section 10 of the Criminal Justice Act 1587, providing inter alia that all the witnesses and proof were to be “allegit, ressonit and deducit to the assyse in presence of the pairtie accusit in face of iudgement and na utheris wayes”. This provision was, somewhat prosaically, consolidated in section 145(1) of the Criminal Procedure (Scotland) Act 1975 as “no part of a trial shall take place outwith the presence of the accused” and is now to be found in section 153(1) of the Criminal Procedure (Scotland) Act 1995. If, for instance, an accused falls ill during the trial and cannot attend, the trial must be adjourned until he is fit or, if that is not practicable, the diet must be deserted pro loco et tempore, authority being given to the Crown to start fresh proceedings when the accused recovers. So the requirement for the accused to be present at his trial is applied consistently.
…
… Under that system it is indeed impossible for the court to begin or continue a trial when the accused absconds. The controlling philosophy of Scots law on this matter is the same today as two hundred years ago when, in his Commentaries on the Law of Scotland, respecting Crimes (1844), vol II, pp 269-270, Baron Hume wrote:
Let us now suppose, that the accused is absent at calling the libel, but the prosecutor appears and insists. With one exception, which was introduced in evil times, in cases of treason, it has been our invariable custom, that on no sort of proceeding can here take place, as for trial of the crime libelled. It is considered, that unless the accused is present to take charge of his own interest, there can be no security for doing full justice to his case; for pleading all his defences, bringing forward all his evidence, stating all objections to the evidence on the other part, and still less for taking advantage of all those pleas and grounds of challenge, which may arise in the course of the proceedings in the trial. Besides, (though this is certainly an inferior consideration,) the judges ought not to be called on to apply or declare the law, except in circumstances which afford the means of carrying their sentence into effect. On these grounds, the peremptory rule has long been settled, of requiring the personal presence of the pannel in every step, from first to last, of the trial, with the exception only of continuations of the diet; so that if he even withdraw at the last stage of all, after a verdict of guilty has been returned against him, still the court cannot proceed to apply the sentence of the law.
…
[44]The only significant change to the Scottish system since Baron Hume’s time is that statute now confers a specific power on the trial judge to order the accused to be removed if he misconducts himself so as to make it impossible for a proper trial to take place. In the case of an unrepresented accused, the court must appoint counsel or a solicitor to represent his interests during his absence: section 153(2). This exception was enacted in 1980 after doubts had arisen as to whether the judge had any such power at common law to allow a trial to proceed in the accused’s absence even where he was disrupting it. The contrast with the flexible approach of English law could not be more stark.
(Emphasis added)
As at the time of the decision in R v Anthony Jones, it could be correctly said that Scottish law did not recognise the “commencing/continuing distinction” since the Scottish law, in a stark way, did not recognise any circumstances where a trial could proceed in the absence of the defendant. This no doubt was thought to be an argument in favour of consistency (in the one way or the other) and against the logic or utility of the commencing/continuing distinction.
Interestingly, since the decision in R v Anthony Jones, Scotland has amended its legislation and now positively adopted the commencing/continuing distinction for trial on indictment (Scottish “solemn proceedings”), no doubt for good reasons of principle.
In summary, the position as from 4th June 2004 is as follows. First, there is a power to exclude a defendant who so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed and power to proceed with the trial in his absence. Second, there is a power to proceed with the trial in the absence of a defendant who absconds, but only where he absconds after “evidence has been led which substantially implicates the accused in respect of the offence charged in the indictment or, where two or more offences are charged in the indictment, any of them”. The relevant provisions are as follows:[230]
[230] Criminal Procedure (Scotland) Act 1995, chapter 46.
92 Trial in presence of accused
(1) Without prejudice to section 54 of this Act,[231] and subject to subsections (2) and (2A) below, no part of a trial shall take place outwith the presence of the accused.
[231] Section 54 concerns insanity in bar of trial.
(2) If during the course of his trial an accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court may order—
(a)that he is removed from the court for so long as his conduct makes it necessary; and
(b) that the trial proceeds in his absence,
but if he is not legally represented the court shall appoint … a solicitor to represent his interests during such absence.
(2A) If—
(a)after evidence has been led which substantially implicates the accused in respect of the offence charged in the indictment or, where two or more offences are charged in the indictment, any of them, the accused fails to appear at the trial diet; and
(b)the failure to appear occurred at a point in proceedings where the court is satisfied that it is in the interests of justice to do so,
then the court may, on the motion of the prosecutor and after hearing the parties on the motion, proceed with the trial and dispose of the case in the absence of the accused.
(2B) Where a motion is made under subsection (2A) above, the court shall—
(a)if satisfied that there is a solicitor with authority to act for the purposes of—
(i)representing the accused’s interests at the hearing on the motion; and
(ii)if the motion is granted, the accused’s defence at the trial,
allow that solicitor to act for the purposes; or
(b)if there is no such solicitor, at its own hand appoint a solicitor to act for those purposes.
The statutory regime in the United States of America
In Crosby v United States,[232] the defendant did not appear at the commencement of his trial, the Judge permitted the trial to be held in his absence and he was convicted. In 1993 the United States Supreme Court reversed the judgment of the Court of Appeals which had upheld the conviction and held that Federal Rule of Criminal Procedure 43 did not permit the trial of a defendant in absentia in such circumstances. The relevant parts of Rule 43 provide:
(a)Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the empanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
(b)Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present,
(1) is voluntarily absent after the trial has commenced …
(Emphasis added)
[232] (1993) 506 US 255.
One can see that the draftspersons positively addressed, and stipulated for, the commencing/continuing distinction. Justice Blackmun delivered the opinion for a unanimous court. The last two paragraphs of the opinion were as follows:
The language, history, and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a defendant who is not present at the beginning of trial. Because we find Rule 43 dispositive, we do not reach Crosby’s claim that his trial in absentia was also prohibited by the Constitution.
The Judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
(Emphasis in original)
In the House of Lords in R v Anthony Jones, Lord Hutton was the only one of the Law Lords to refer to this important decision. He stated that:
[29]… However I do not consider that that decision supports the appellant’s case because it was based on Rule 43 of the Federal Rules of Criminal Procedure …
His Lordship then reproduced only the relevant part of Rule 43 and the penultimate paragraph of Justice Backmun’s opinion and stated:
[30]Moreover, there are other statements by American appellate courts cited in the judgment of the Supreme Court which give support to the view that, in the absence of a provision such as Rule 43, there is no reason of substance for distinguishing between the absence of a defendant at the commencement of a trial and his absence at a later stage. Thus in Crosby v United States itself the intermediate appellate court stated:
It would be anomalous to attach more significance to a defendant’s absence at commencement than to absence during more important substantial portions of the trial.
And in Government of the Virgin Islands v Brown (1975) 507 F2d 186,189 another appellate court stated that there are no “talismanic properties which differentiate the commencement of a trial from later stages”.
With respect, in taking that approach, his Lordship has rather ignored the majority of the content of the unanimous opinion of the United States Supreme Court in Crosby v United States. In delivering that opinion, Justice Blackmun specifically addressed the previous common law of the United States and stated as follows:
The Government, however, urges us to look for guidance at the existing law, which the Rule was meant to restate, at the time of its adoption in 1944. See Advisory Committee’s Notes on Fed Rule Crim Proc 43, 18 U S C App, p 821. That inquiry does not assist the Government. “It is well settled that … at common law the personal presence of the defendant is essential to a valid trial and conviction on a charge of felony … If he is absent, … a conviction will be set aside.” W Mikell, Clark’s Criminal Procedure 492 (2d ed 1918) (hereinafter Mikell). Accord, Goldin, Presence of the Defendant at Rendition of the Verdict in Felony Cases, 16 Colum L Rev 18, 20 (1916); F Wharton, Criminal Pleading and Practice 388 (9th ed 1889) (hereinafter Wharton); 1 J Bishop, New Criminal Procedure 178-179 (4th ed 1895) (hereinafter Bishop), and cases cited there. The right generally was considered unwaivable in felony cases. Mikell 492; 1 Bishop 175 and 178. This canon was premised on the notion that a fair trial could take place only if the jurors met the defendant face-to-face and only if those testifying against the defendant did so in his presence. See Wharton 392; 1 Bishop 178. It was thought “contrary to the dictates of humanity to let a prisoner ‘waive that advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence’.” Ibid, quoting Prine v Commonwealth, 18 Pa 103, 104 (1851).
In Diaz v United States, 223 U S 442 (1912), a case that concerned a defendant who had absented himself voluntarily on two occasions from his ongoing trial in the Philippines, this Court authorized a limited exception to the general rule, an exception that was codified eventually in Rule 43(b). Because it did ‘“not seem to us to be consonant with the dictates of common sense that an accused person, being at large upon bail, should be at liberty, whenever he pleased, to withdraw himself from the courts of his country and to break up a trial already commenced,’” id, at 457, quoting Falk v United States, 15 App D C 446, 454 (1899), cert denied, 181 U S 618 (1901), the Court held:
[W]here the offense is not capital and the accused is not in custody, ... if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. 223 U S, at 455
Diaz was cited by the Advisory Committee that drafted Rule 43. The Committee explained: “The second sentence of the rule is a restatement of existing law that, except in capital cases, the defendant may not defeat the proceedings by voluntarily absenting himself after the trial has been commenced in his presence.” Advisory Committee’s Notes on Fed Rule Crim Proc 43, 18 U S C App, p 821. There is no reason to believe that the drafters intended the Rule to go further. Commenting on a preliminary version of the Rule, Judge John B Sanborn, a member of the Committee, stated:
I think it would be inadvisable to conduct criminal trials in the absence of the defendant. That has never been the practice, and, whether the defendant wants to attend the trial or not, I think he should be compelled to be present. If, during the trial, he disappears, there is, of course, no reason why the trial should not proceed without him. 2 M Wilken & N Triffin, Drafting History of the Federal Rules of Criminal Procedure 236 (1991).
(Emphasis added)
It is somewhat surprising that Lord Hutton refers with approval to the statement by the intermediate appellate court in Crosby that “It would be anomalous to attach more significance to a defendant’s absence at commencement than to absence during more important substantial portions of the trial” without referring to the fact that the unanimous opinion of the Supreme Court itself specifically referred to that view and expressly differed from it. Justice Blackmun in fact said this:
The Court of Appeals in the present case recognized that this Court in Diaz had not addressed the situation of the defendant who fails to appear for the commencement of trial. Nevertheless, the court concluded: “It would be anomalous to attach more significance to a defendant’s absence at commencement than to absence during more important substantive portions of the trial.” 917 F. 2d, at 365. While it may be true that there are no “talismanic properties which differentiate the commencement of a trial from later stages,” Government of the Virgin Islands v Brown, 507 F 2d 186, 189 (CA3 1975), we do not find the distinction between pre-and midtrial flight so farfetched as to convince us that Rule 43 cannot mean what it says. As a general matter, the costs of suspending a proceeding already under way will be greater than the cost of postponing a trial not yet begun. If a clear line is to be drawn marking the point at which the costs of delay are likely to outweigh the interests of the defendant and society in having the defendant present, the commencement of trial is at least a plausible place at which to draw that line. See Hopt v Utah, 110 US 574, 579 (1884) (discussing the public’s interest in strict enforcement of statutory requirement that defendant be present at trial).
There are additional practical reasons for distinguishing between flight before and flight during a trial. As did Diaz, the Rule treats midtrial flight as a knowing and voluntary waiver of the right to be present. … the defendant’s initial presence serves to assure that any waiver is indeed knowing. “Since the notion that trial may be commenced in absentia still seems to shock most lawyers, it would hardly seem appropriate to impute knowledge that this will occur to their clients.” Starkey, Trial in Absentia, 54 NY St BJ 30, 34, n 28 (1982). It is unlikely, on the other hand, “ ‘that a defendant who flees from a courtroom in the midst of a trial - where judge, jury, witnesses and lawyers are present and ready to continue - would not know that as a consequence the trial could continue in his absence.’ ” Taylor v United States, 414 US 17, 20 (1973), quoting from Chief Judge Coffin’s opinion, 478 F 2d 689, 691 (CA1 1973), for the Court of Appeals in that case. Moreover, a rule that allows an ongoing trial to continue when a defendant disappears deprives the defendant of the option of gambling on an acquittal knowing that he can terminate the trial if it seems that the verdict will go against him - an option that might otherwise appear preferable to the costly, perhaps unnecessary, path of becoming a fugitive from the outset.
(Emphasis added)
I also note that Justice Blackmun in the above passage also referred to the other lower court decision to which Lord Hutton refers, that of Government of the Virgin Islands v Brown Government, and clearly did not accept the pejorative inference obviously intended by his Lordship’s reference to the use of the phrase “talismanic properties” by the lower court.
In summary, the unanimous view of the United States Supreme Court in Crosby was that Rule 43 codifies a previous common law requirement for the accused to be present at the commencement of a trial, a court only having the discretion to continue a trial in the absence of the defendant after it has commenced. Further, the court specifically rejected the submission that there is no difference in principle between commencing or continuing a trial in the absence of the defendant for the reasons given by Justice Blackmun in the passage above.
The statutory regime in Canada
Canadian law also makes positive use of the commencing/continuing distinction. If a defendant does not attend on the scheduled commencement date for a jury trial, a trial will not commence in his absence. However, when he is later apprehended he will lose the option of a jury trial and be required to submit to a trial by Judge alone (unless he can establish a legitimate excuse for his original failure to attend).[233] On the other hand, if the defendant does attend on the scheduled commencement date for a jury trial but later absconds while it is in progress, the trial may continue to conviction in his absence. This seems a rather interesting and reasonable Canadian compromise. As Hinkson J remarked at the Court of Appeal level in R v Lee:[234]
Parliament could have enacted a rule that those who elect to be tried by a judge sitting with a jury will be detained in custody pending trial. Parliament could have provided that when an individual who elected to be tried by a judge sitting with a jury fails to appear the trial will proceed in his absence. Parliament could have provided that when an accused fails to appear for his trial by jury thereupon his right to trial by jury is forfeited. All of these alternatives are extreme measures. None of them was adopted. Parliament chose a middle course. The decision of an accused to be tried by a jury does not affect his bail status. The accused who fails to appear does not thereby become subject to a trial conducted in his absence. The accused who fails to appear does not lose his right to trial by jury. Only those accused who both fail to appear for their trial by a judge sitting with a jury and can offer no legitimate excuse for doing so suffer that consequence. Provision is therefore made for the accused who is ill, or hurt, or lost, or mistaken. Only those who have failed to act responsibly are penalized. In legislating in that way, in my opinion, Parliament has met the second requirement set forth in Oakes.
[233] Sections 597 and 598 Criminal Code.
[234] Cited by Wilson and Sopinka JJ in the Supreme Court of Canada in R v Lee [1989] 2 SCR 1384.
In R v Lee[235] the appellant challenged the above regime as infringing the Charter of Rights and Freedoms. The Supreme Court ruled by majority that this regime did not infringe rights under the Charter. It is obviously unnecessary to analyse the legislation or the provisions of the Charter. The point about the case is that Canada does not have a regime where a trial of a defendant may commence in his absence and, as in the USA, and now in Scotland, it is thought that the distinction between absconding before and after the commencement of a trial is a valid and important distinction which forms a critical part of their system of criminal law and procedure.
[235] [1989] 2 SCR 1384.
CONCLUSION
The District Court Judge in referring to R v Anthony Jones stated:
There is no authority which stands for the proposition that the same discretion exists in this country and nor is there any authority which directly stands in the way of its existence.
The first part of that statement is correct. The second part is only correct in the limited sense that there may be no direct statement by an Australian Court that the decision of the House of Lords in R v Anthony Jones was wrongly decided and should not be followed. However, as discussed above, there are good reasons for that state of affairs including that:
·this is the first time in Australia that it has been seriously contended that a jury trial could start without a defendant in the dock
·such contention is inconsistent with the common law of Australia
·such contention is inconsistent with local legislation in Australia
·a purported trial commencing without the defendant present would not be a “trial by jury” within the meaning of s 80 Commonwealth Constitution or s 6 Juries Act 1927 (SA)
·a purported trial commencing without the defendant present would infringe South Australian legal requirements that the defendant must be arraigned in the presence of the jury panel and must be present while his jury is being empanelled.
A final word
Since completing the above, it has come to my attention that in the case of R v Touch[236] his Honour District Court Judge Rice had occasion to refer to the decision of the Court of Criminal Appeal in R v Collie[237] (discussed above) in which reference had been made to the decision of the House of Lords in R v Jones.[238]
[236] [2005] SADC 65.
[237] (2005) SASR 339, [33].
[238] [2003] 1 AC 1.
In R v Touch his Honour was considering the situation of a defendant who had, before her health seriously deteriorated, validly elected for trial by Judge alone. However, at the time of trial she came within Part 8A of the Criminal Law Consolidation Act 1935 and was mentally unfit to stand trial. Her psychiatric condition prevented her from being present in Court for the hearing as to the objective facts and her legal representatives applied for a stay of proceedings. His Honour refused that application having regard to the unique nature of the proceedings and it is unnecessary to go into those matters further.
However, the matter of present importance is that his Honour, in the course of considering statements of principle in relation to the quite different situation presented by the traditional criminal trial before a jury, stated:[239]
Those discussions of principle relate to the absence, for one reason or another, of the accused from part of the trial, sometimes even an important part of the case, but certainly after the trial had commenced. The authorities do not discuss the situation where the accused does not attend at all, presumably for the very good reason that no arraignment would have taken place and therefore no issue joined between the prosecution and the accused. There would also be empanelment procedures to be adhered to, particularly the right of challenge. I also note that the discussions of principle relate to a trial proceeding in the normal manner or at least commencing in that way. (Emphasis added)
[239] [2005] SADC 65 [24].
It is quite clear that his Honour was of the view that a distinction is to be drawn between a power to continue a trial which had been validly commenced with the defendant present for at least his arraignment before the jury panel and the empanelment of the jury on the one hand, and commencing a trial of a defendant who had already absconded, on the other.
Although his Honour did not mention the authorities and statutory provisions discussed herein, his Honour’s observation is useful not only because it coincides with my own view but also because it is the weighty opinion of a Judge who was formerly the last Crown Prosecutor for South Australia before the advent of the Director of Public Prosecutions system. Finally, I note that his Honour’s view is also consistent with the views of the Criminal Law and Penal Methods Reform Committee of South Australia (discussed herein), the members of which Committee were, and are, entitled to very great respect indeed.
Answers to the reserved questions
For all of the above reasons, the questions should be answered:
1.Was I right to conclude that the common law of Australia allows for the trial of a defendant to commence and continue to verdict in their absence?
“No.”
2.If the answer to question 1 is “yes”, in the circumstances of this case, was I right to refuse the application to commence and continue to verdict the defendant’s trial in his absence?
“Unnecessary to answer.”
23
43
1