R v Hunter (No 4)

[2014] NSWSC 1147

Supreme Court

New South Wales

Medium Neutral Citation:

R v Hunter (No 4) [2014] NSWSC 1147

Hearing dates:

1 July 2014

Decision date:

01 July 2014

Jurisdiction:

Common Law - Criminal

Before:

Button J

Decision:

(1) The trial is adjourned until 10 AM on Thursday, 3 July 2014.

(2) A jury panel, or panels, will be required for empanelment at 10 AM on Friday, 4 July 2014.

Catchwords:

CRIMINAL LAW - joint application for an adjournment - subpoenaed witness not present - bench warrant issued - possible exclusion of other evidence as a result of unavailability of the witness

Legislation Cited:

Evidence Act 1995 (NSW), s 38

Category:

Interlocutory applications

Parties:

Regina
Paul Andrew Hunter

Representation:

Counsel:
M Cinque (Crown)
D Carroll (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Shiranica Danieli Lawyers (Accused)

File Number(s):

2011/397367

EX TEMPORE Judgment

1. An application has been made to adjourn the trial for some days by defence counsel.

1. Stated succinctly, a Mr Gary Hunter who appeared on the Crown list of proposed witnesses did not attend court in answer to a subpoena yesterday. As a result, a bench warrant was issued for his arrest by me.

1. As the documentary evidence tendered on the voir dire shows, he has made a number of equivocal statements and given some equivocal evidence. Basically it could be said that his last-given evidence inculpated the accused. Indeed he gave evidence at the committal that he saw the accused strike a man to the head with a metal pole.

1. Yesterday, two efforts were made to empanel a jury. On the first occasion duplication in jury cards became apparent, and I was not comfortable proceeding further in those circumstances.

1. On the second occasion, the jury was successfully empanelled but subsequently discharged when a juror indicated in writing that he or she was emotionally incapable of proceeding.

1. In the circumstances, I stood the empanelment over for two days until tomorrow at 10 AM. That was to permit various disputes about the admissibility of evidence to be resolved or at least explored; and, in particular, to discuss an application by defence counsel to revisit a ruling of Johnson J of 6 December 2013, which ruling related to the admissibility of a statement of the late Mr Wade Hunter, in light of the possible unavailability of Mr Gary Hunter.

1. Mr Carroll's contention is that the judgment of his Honour should be revisited because, contrary to what was thought at the time of the judgment, at least as at today Mr Gary Hunter will not be available for cross-examination.

1. Mr Carroll submitted that that availability played a role in his Honour's determination, at least with regard to "discretionary" exclusion of the evidence of Mr Wade Hunter.

1. Today, Mr Carroll has sought to adjourn the matter for no more than a number of days.

1. He submitted, first, that the bench warrant has been in force for less than 24 hours.

1. Secondly, it is possible in light of the equivocal statements that he has made in the past that Mr Gary Hunter, if able to be located, could provide evidence favourable to the defence case.

1. Thirdly, in any event, the pre-trial issue that has been identified relates to the presence or otherwise of Mr Gary Hunter and there should be some margin for determination of that initial question; namely, whether Mr Gary Hunter will or will not be available for cross-examination.

1. The Crown Prosecutor joined in the application. She submitted, in particular, that from the Crown's perspective things have reached a point where it is really not clear precisely what Mr Gary Hunter would say if he became available to give evidence in the witness box. She submitted that there would be a necessity, if he were available, for evidence to be taken on the voir dire, so that she could discharge her function of determining whether he should be called at all, and, if so, whether s 38 of the Evidence Act 1995 (NSW) should be relied upon. She also accepted that the accused is facing an exceptionally serious offence. As I understand her position, she accepts there should not be an inappropriate degree of inflexibility in terms of seeing whether Mr Gary Hunter can be located and become a witness in the witness box.

1. The fact is that this matter has been subject of a great many delays. A number of aspects of its forensic history are noteworthy.

1. First, the offence was allegedly committed over three years ago.

1. Secondly, the trial was vacated at a very late stage late last year so that certain matters could be explored by the solicitor for the accused.

1. Thirdly, an earlier application to vacate the trial date in October 2013 had been refused.

1. Fourthly, the matter first came before the Supreme Court 16 months ago.

1. On the other hand, it is true that one could not be sure that Mr Gary Hunter would not answer his subpoena until a little over 24 hours ago.

1. Furthermore, no doubt the bench warrant did not reach the police immediately upon my issuing it.

1. In those circumstances it could be said that it would be appropriate for there to be given a little more time to see whether or not Mr Gary Hunter can be located.

1. Secondly, the position of a very experienced Crown Prosecutor is significant, though not of course determinative.

1. Thirdly, I accept that there may be a degree of interrelationship between the question of the admissibility of the statements of Mr Wade Hunter and the presence or absence of Mr Gary Hunter. It could be worthwhile to take a day or two to see whether that latter question can be clarified, rather than simply seeking to proceed on the basis of certain assumptions.

1. In the circumstances, and in light of the joint position of the parties, I think it appropriate that the empanelment of the jury be adjourned from tomorrow for two days until Friday, 4 July 2014 at 10 AM. On that day the Court will sit until 3 PM.

1. Furthermore, I think it appropriate that all of the pre-trial applications proceed at 10am on Thursday, 3 July 2014. My proposal and expectation is that by the time the Court rises on that day, all determinations necessary for the Crown to open on the following morning will have been determined by me.

1. In short, I make the following orders:

(1)   The trial is adjourned until 10 AM on Thursday, 3 July 2014.

(2)   A jury panel, or panels, will be required for empanelment at 10 AM on Friday, 4 July 2014.

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Decision last updated: 21 August 2014