R v Gee

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.