(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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Gee [2012] SASCFC 86
Case
[2012] SASCFC 86
Decision Date
CaseChat Overview and Summary
The case of *R v Gee* concerned questions of law reserved from a Judge of the District Court. The central dispute revolved around whether the common law of Australia permitted a criminal trial to commence and continue to verdict in the absence of the defendant. The matter was heard by Gray, Sulan, and Peek JJ.
The legal issues before the court were twofold: first, whether the common law of Australia allows for a defendant's trial to commence and proceed to a verdict in their absence; and second, whether, in the specific circumstances of this case, the trial Judge had erred in refusing an application to commence and continue the defendant's trial in his absence.
The court affirmed the general common law principle that a defendant must be present throughout their trial, noting that a trial in absentia is not ordinarily permissible. While acknowledging that trial judges possess a discretion to continue a trial in the absence of a defendant who falls ill or is excluded for misbehaviour after the trial has commenced, or who voluntarily absents themselves after commencement, the court observed that the existence of such a discretion to *commence* a trial in a defendant's absence was less clear. The court emphasised that the ultimate responsibility of the court is to ensure a fair trial for every defendant, a right considered a fundamental element of the Australian criminal justice system and a defining characteristic of a court under Chapter III of the Constitution. This right is intrinsically linked to the adversarial nature of the Australian legal system, which relies on the conduct of trials by independent and impartial tribunals.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
PEEK J
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].