R v Hunter - [2013] NSWSC 1713

Supreme Court

New South Wales

Medium Neutral Citation: R v Hunter [2013] NSWSC 1713
Hearing dates: 8 November 2013
Decision date: 13 November 2013
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Application to vacate trial date granted

Catchwords: CRIMINAL TRIAL - murder - application to vacate trial date - very late defence application - defence seeks to explore possible partial defence of substantial mental impairment - applicable principles - importance of compliance with statutory notice obligations - order made vacating trial in this case - rigorous approach to be expected where proceedings subject to 2013 mandatory pre-trial defence disclosure provisions
Legislation Cited: Criminal Procedure Act 1986
Criminal Procedure Amendment (Case Management) Act 2009
Criminal Procedure Amendment (Mandatory Pre-Trial Defence Disclosure) Act 2013
Criminal Procedure Regulation 2010
Supreme Court Practice Note SC CL 2 (issued on 13 August 2010)
Supreme Court Practice Note SC CL 2 (issued on 20 September 2013)
Cases Cited: R v Alexandroaia (1995) 81 A Crim R 286
R v Kaewklom (No. 1) [2012] NSWSC 1103
R v Kennedy [2008] NSWSC 703
Slotboom v R [2013] NSWCCA 18
Texts Cited: ---
Category: Interlocutory applications
Parties: Regina (Crown)
Paul Andrew Hunter (Accused)
Representation: Counsel:
Mr RA Herps (Crown)
Mr DL Carroll (Accused)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Shiranica Danieli Lawyers (Accused)

File Number(s): 2011/397367
Publication restriction: ---

Judgment

JOHNSON J: The Accused, Paul Andrew Hunter, is charged with the murder of Jason Dixon at Dharruk on 23 June 2011.

The Present Application

The trial of the Accused was fixed to commence on 4 November 2013. On 28 October 2013, on the application of the Accused, I varied the trial listing by fixing for hearing on 7 and 8 November 2013 a Notice of Motion seeking the exclusion of certain evidence, with the trial to commence before a jury on 11 November 2013.

By Notice of Motion filed on 6 November 2013, the Accused applied to vacate the jury trial then fixed for 11 November 2013. The vacation application proceeded to a hearing on 8 November 2013.

At the conclusion of that hearing, I made an order vacating the trial and stated that I would give reasons for this decision on 13 November 2013. This judgment contains my reasons for vacating the trial.

Background to Application

A chronology of events is required to place this application into context.

On 20 October 2011, the Accused was charged with the murder of Jason Dixon.

Committal proceedings took place on dates between November 2012 and January 2013, with the Accused being committed from the Parramatta Local Court on 21 January 2013 for trial in this Court. A Public Defender acted for the Accused at the committal proceedings.

The Accused first appeared before this Court on 1 March 2013.

The Court has been informed that Ms Danieli, solicitor, was instructed on 15 March 2013 to act for the Accused on a legally aided basis.

On 5 April 2013, Ms Danieli appeared before Latham J in the Arraignments List…

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.

Continue reading R v Hunter

Details

AGLC: R v Hunter [2013] NSWSC 1713
Case: [2013] NSWSC 1713
Decision Date: 13 November 2013

CaseChat Overview and Summary

In the case of R v Hunter, the respondent, Hunter, was facing a trial for murder. Hunter applied to vacate the trial date on the basis that the defence was very late in raising a possible partial defence of substantial mental impairment. The application was heard in the Supreme Court of Victoria. Hunter argued that the defence team had become aware of information that could potentially support a partial defence of substantial mental impairment only shortly before the trial was due to commence. The defence sought to vacate the trial date to allow time to explore this defence further.

The legal issues before the court included whether the trial date should be vacated to allow Hunter’s defence team to investigate the partial defence of substantial mental impairment, and whether the lateness of the application could be justified. The court had to consider the principles applicable to such applications, particularly the importance of compliance with statutory notice obligations. The court also had to weigh the potential prejudice to the Crown against the rights of the accused to a fair trial.

The court found that while the application was indeed very late, the potential for a partial defence of substantial mental impairment warranted vacating the trial date. The court noted the importance of compliance with statutory notice obligations but also recognised the exceptional circumstances of this case. The court ordered the trial date to be vacated, but emphasised that a rigorous approach would be expected in future cases where proceedings are subject to the 2013 mandatory pre-trial defence disclosure provisions. The court made an order vacating the trial date, allowing Hunter’s defence team to investigate the potential defence further.

Orders