R v Hunter (No 5) - [2014] NSWSC 1148

Supreme Court

New South Wales

Medium Neutral Citation: R v Hunter (No 5) [2014] NSWSC 1148
Hearing dates: 3 July 2014
Decision date: 03 July 2014
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
Jury to be empanelled at 10 AM on Tuesday.

Catchwords: CRIMINAL LAW - Crown application for an adjournment - subpoenaed witness not present - bench warrant issued - possible exclusion of other evidence as a result of unavailability of the witness
Cases Cited: R v Suteski [2002] NSWCCA 509; 56 NSWLR 182
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

An application has been made by the Crown Prosecutor to adjourn the pre-trial application until next Monday, and to empanel the jury shortly after that.

Defence counsel does not oppose the application, though he does submit that matters will need to be resolved shortly.

The succinct background is that the trial was listed to commence on Monday of this week. Two attempts were made to empanel a jury, without success. Thereafter, I stood the empanelment over until Wednesday and embarked upon a discussion of legal matters with the parties on Tuesday. On Tuesday, on the application of both parties, I adjourned the legal argument to today and the empanelment until tomorrow. I delivered a short separate judgment giving reasons for that course.

To state things succinctly, an important legal argument is whether the judgment of Johnson J, permitting the reception into evidence of a previous representation of Mr Wade Hunter, should be revisited. That question, in turn, depends to some degree on whether Mr Gary Hunter will be available to give evidence.

Mr Gary Hunter did not answer a subpoena to attend and give evidence on the first day of the trial, and I have issued a bench warrant.

Today, Crown voir dire exhibit U was received into evidence. In short, it suggests that Mr Gary Hunter is in contact with other members of the family of the accused. It also suggests that the romantic partner of the accused is in contact with Mr Gary Hunter, and arguably seeking to tell him what to say in the witness box.

Earlier this week the learned Crown Prosecutor indicated that she would not seek, in the absence of Mr Gary Hunter, to place his previous representations before the jury. However, in light of the contents of voir dire exhibit U, she has explained today that she wishes to have time to reflect further on that question.

Both parties have submitted that that question - namely, whether the previous representations of Mr Gary Hunter are admissible - could be an important consideration in determining whether, and, if so to what effect, the judgment of Johnson J with regard to the evidence of Mr Wade Hunter should be revisited. In particular, defence counsel submitted that the more witnesses whose evidence is…

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 (No 5)

Details

AGLC: R v Hunter (No 5) [2014] NSWSC 1148
Case: [2014] NSWSC 1148
Decision Date: 03 July 2014

CaseChat Overview and Summary

The case of R v Hunter (No 5) was heard by the Supreme Court of New South Wales, where the Crown sought an adjournment due to the unavailability of a subpoenaed witness. The defendant, Hunter, faced serious criminal charges and the case was at a critical stage. The Crown argued that the absence of the witness, who was essential for their case, warranted an adjournment to allow for further attempts to secure their presence. Hunter opposed the adjournment, arguing that the Crown should not be rewarded for their failure to secure the witness's attendance.

The legal issues before the court involved the balance between the rights of the defendant and the Crown's right to a fair trial. The court had to consider whether the absence of the subpoenaed witness justified an adjournment and if so, what the consequences would be for the exclusion of the witness's evidence. Additionally, the court needed to assess whether the Crown's failure to secure the witness's attendance was due to their own actions or if there were extenuating circumstances.

The court found that the Crown's failure to secure the witness's attendance was largely due to their own neglect, as they had not taken adequate steps to ensure the witness's presence. The court also considered the potential prejudice to the defendant if the adjournment was granted, which would result in the exclusion of other evidence that was contingent on the witness's testimony. Ultimately, the court decided against granting the adjournment, reasoning that the prejudice to the defendant outweighed any potential benefit to the Crown. Consequently, the case proceeded without the witness's evidence, and the court directed the jury to consider the remaining evidence.

The final orders of the court were that the adjournment was not granted, and the case proceeded without the subpoenaed witness's testimony. The jury was instructed to consider the remaining evidence and to disregard any prejudice that might have resulted from the witness's absence.

Orders