R v Hart (No 2)

[2016] NSWSC 956

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hart (No 2) [2016] NSWSC 956
Hearing dates:	20; 21; 22; 27 June 2016
Date of orders:	27 June 2016
Decision date:	27 June 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The trial is adjourned until 4 July 2016
Catchwords:	CRIMINAL LAW– expert evidence– adjournment to provide time for Crown to qualify an expert
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 151
Category:	Procedural and other rulings
Parties:	Regina (Crown) Campbell Hart (Accused)
Representation:	Counsel: W Creasey SC (Crown) E Wilson SC (Accused) Solicitors: Office of the Director of Public Prosecutions NSW (Crown) Lamond Legal (Accused)
File Number(s):	2013/00327594

Ex Tempore JUDGMENT (revised)

1. Mr Hart is charged with murdering his friend, Mr Hargrave. The events giving rise to the charge are alleged to have occurred on 29 October 2013, more than two and a half years ago. He has been in custody on remand since that time.

2. When he was arraigned in the presence of a jury panel on Monday 20 June 2016, he entered a plea of not guilty of murder but guilty of manslaughter. The Crown elected not to accept that plea in full discharge of the indictment.

3. A jury was duly empanelled but, at the suggestion of counsel, I did not charge them with the responsibility of deciding the case. This was because, for reasons I have explained in an earlier decision, and which I will not go over again, some new evidence had become available to the defence in the form of an opinion of Dr Anna Farrar who diagnosed the applicant as suffering from a substance abuse psychosis during the weeks, if not months, leading up to 29 October 2016 and for some time thereafter.

4. This material only came available on 16 June and was served on the Crown on 17 June. Dr Farrar's evidence was taken on a Basha inquiry on 21 June by audio-visual link. Her evidence had been propounded by Mr Wilson SC, who appears for the accused, as informing the question of whether, at the time Mr Hargrave was shot, the accused had the requisite specific intention of killing him or inflicting really serious bodily injury on him. However, it became apparent from her testimony on the voir dire that much of what Dr Farrar had to say went to an issue which had not previously been raised or relied upon by the defence, that is to say, whether the accused had available to him the partial defence of substantial impairment.

5. After hearing argument from both counsel I gave the accused leave to raise that matter out of the time fixed for giving notice under s 151 Criminal Procedure Act 1986 (NSW).

6. When I made that decision I was acting on the basis that it may be possible for the Crown, by making significant effort, to obtain the opinion of a psychiatrist, at least on the available papers, quickly. And, indeed, through the efforts of the learned Crown Prosecutor, Mr Creasey SC, and his instructing solicitor Mr Thomas, Dr Westmore, an expert well-known to the Court in this area, was obtained, him having expressed a willingness to look at the papers and give at least an oral opinion before today.

7. It seems there may have been some misunderstanding because the Crown's expectation in that regard has not been borne out by the receipt of his oral expression of views about the matter, although material was sent by email last Wednesday and an attempt was made to deliver papers to his rooms on Friday. Not only has no opinion been received from Dr Westmore but the Crown have been unable to contact him notwithstanding numerous and repeated attempts by Mr Thomas to do so.

8. I can only assume, as I have said, that there must have been some misunderstanding on the part of the doctor as to the expectation he had engendered in the mind of the legal representatives of the Crown, and I make no criticism of him by saying that. Obviously he may, and probably does have, a perfectly proper explanation for the silence which has fallen over the lines of communication. In these circumstances the expectation that these difficulties could be overcome is proved by events to have been misplaced.

9. After empanelment on the 20th I adjourned the trial, first until Wednesday 22 June, and then further until today in the expectation that the jury could be charged and the trial would commence. However, the inability of the Crown to obtain expert opinion to inform it on the issue of the accused's mental condition - whether it supports or contradicts Dr Farrar does not matter - has placed the Crown in a position of significant forensic prejudice.

10. I accept, given that this issue has been raised late, absent psychiatric advice available to the Crown that it would be wholly unreasonable to require the learned Crown Prosecutor without his acquiescence to open his case when he is not fully aware of the whole scope of it because he has not had the benefit of any evidence that will enable him to meet the accused's case based on the psychiatric evidence extending as it does to the partial defence of substantial impairment.

11. However: given that Mr Hart has been in custody without conviction for over two and a half years; given that the family of the deceased obviously have a keen interest in the trial proceeding; and given the broader interest of the community in the expeditious administration of justice, I have decided, rather than vacating these dates as was suggested as a possible course this morning, that the better approach is to give the Crown a further opportunity to secure an opinion from Dr Westmore, or another expert.

12. As it transpires, another jury panel is available here in Albury next Monday, 4 July 2016. That being so, I consider that a better, safer approach to avoid inconveniencing any further the jury in waiting, who have been empanelled in expectation of hearing the case, any further, is that they should be excused and the case should be adjourned until 4 July.

13. Adopting this approach means that if the opinion of Dr Westmore cannot be obtained in the next day or so, then the Crown will have the opportunity to attempt to secure the services of another expert and ought to be in a position to proceed next Monday.

14. In any event, I am of the view that that period of time is a reasonably fair opportunity to enable the Crown to meet the new evidence that has been served late by the defence. There may be some difficulty with completing the case within the original estimate given this further adjournment. However, it seems to me that the importance of the issues I have attempted to outline during the course of these reasons are such that this is a matter of lesser significance. It is not my intention that counsel or the parties ought to be forced to do other than present their case with all due efficiency having regard to the importance of the case, as I have said, to the community, to the family victims and to the accused.

15. For those reasons I excuse the jury that had been previously empanelled and I adjourn the trial to commence at 10am 4 July 2016.

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Amendments

26 July 2016 - coversheet - publication restriction notation removed

Decision last updated: 26 July 2016