R v Il (No 3)

[2014] NSWSC 1733

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v IL (No 3) [2014] NSWSC 1733
Hearing dates:	3 December 2014
Decision date:	03 December 2014
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Application for adjournment refused.
Catchwords:	CRIMINAL LAW - adjournment - discharge of jury - application for adjournment after ruling that no evidence support some counts on the indictment - application requiring discharge of jury - application to enable appeal against acquittal in circumstances where no interlocutory appeal available - decision said to be relevant to "other cases in the pipeline" - no details of other cases provided or known - delays in trial - expense - accused entitled to verdicts on other counts on indictment - accused on stringent bail condition for two years - suggestion that accused not prejudiced rejected - no prejudice to prosecution in remaining charges going to verdict
Legislation Cited:	Criminal Appeal Act 1912 (NSW) Crimes (Appeal and Review) Act 2001 (NSW)
Cases Cited:	R v IL (No 2) (2014) NSWSC 1710 R v Lethlean (1985) 53 A Crim R 197 R v Cheng (1998) 48 NSWLR 616
Category:	Procedural and other rulings
Parties:	Crown IL (Accused)
Representation:	Counsel: R Herps (Crown) R Pontello (Accused) Solicitors: DPP (Crown) The Defenders (Accused)
File Number(s):	2012/3683
Publication restriction:	Non-publication of any matter that may lead to the identification of the accused (Crimes (Appeal and Review) Act 2001 (NSW), s 111(1)(b))

Judgment

1. HIS HONOUR: This morning, Wednesday 3 December 2014, the Crown applied for an adjournment of the proceedings of Ms IL. These are my reasons for refusing that application.

1. The trial commenced on Monday 17 November 2014. The application for the adjournment came after the close of the prosecution case and after I delivered a judgment yesterday indicating that I intended to direct the jury to acquit the accused in relation to two of the seven counts on the indictment: R v IL (No 2) (2014) NSWSC 1710. I am told that if the case runs its course, the jury would be expected to retire to consider its verdict on Friday, 5 December 2014, or perhaps the following Monday.

1. The accused was arraigned on an indictment containing six counts. The second count contained two alternatives. The first count is a charge of manufacturing a large commercial quantity of methylamphetamine. That is an offence carrying a maximum penalty of life imprisonment. There is a standard non-parole period of fifteen years associated with that offence. The third, fifth and sixth counts are offences alleging the unauthorised possession of a pistol. They each carry a maximum penalty of fourteen years and a standard non-parole period of three years. The fourth count is an offence of possession of a prohibited weapon and that carries the same penalty, fourteen years with a standard non-parole period of three years. The second count was an allegation of murder, with manslaughter cast in the alternative.

1. The circumstances of the offences and an overview of the evidence led to by the prosecution are set out at paragraphs [2] and [54]-[74] of my judgment yesterday.

1. As I said, the trial commenced on Monday 17 November 2014. The jury was empanelled on Tuesday 18 November 2014. The effect of the application for the adjournment is also that the Crown applies to have the jury discharged. The case has proceeded quickly owing to the commendable efficiency of counsel on both sides. The result is that the jury were sent home early on a number of occasions because the prosecution ran out of witnesses. That was no fault of the Crown but a consequence of the efficiency of counsel. However, it has meant that the jury has been released early on a number of days during the trial.

1. The issues in the trial are relatively confined. The Crown case closed on Thursday 27 November 2014. The jury was then advised that there was to be a lengthy legal argument and was sent away until Tuesday 2 December 2014 (T 378).

1. I was provided with written submissions by defence counsel contending that the jury should be directed to acquit in relation to both forms of homicide (MFI 9). Those submissions had been provided to the Crown on Monday 24 November 2014 (T 243). The learned Crown Prosecutor sought the afternoon of 27 November 2014 to put together written submissions in response. Written submissions were received by email in my chambers on Thursday evening at around 6.30pm (MFI 10). A further document from the Crown entitled, "Some further thoughts" was received on Friday morning at about 8.30am (MFI 11). I received oral submissions on Friday morning and reserved my decision until Tuesday 2 December 2010.

1. My Associate notified the parties that judgment would be delivered at 10.30am on Tuesday 2 December 2014 and the Sheriff advised the jury to attend at 12pm on that date.

1. After I delivered judgment, the Crown Prosecutor sought some time to consult the Deputy Director of Public Prosecutions who had originally directed that the case proceed as a murder charge. I granted that time, although I raised with the Crown the fact that the judgment was not amenable to an application under s 5F of the Criminal Appeal Act 1912 (NSW) and referred him to two authorities on that issue (T 406-7): R v Lethlean (1985) 53 A Crim R 197 and R v Cheng (1998) 48 NSWLR 616. I also raised the fact that the statutory right to appeal against an acquittal by direction only arose after the acquittal was entered: see s 107(3) of the Crimes (Appeal and Review) Act 2001 (NSW).

1. The case was adjourned until around 12 noon by which the time the jury had arrived at court. The Crown Prosecutor then sought an adjournment for the rest of the day to allow him to consider his position and to consult further with the Deputy Director (T 408). Mr Pontello, who appears for the accused, did not oppose that course.

1. I granted the additional time but indicated that I proposed to direct verdicts of not guilty at 10am this morning, subject to the Crown providing me with some reason not to do so (T 408).

1. I again provided reference to the authorities that establish that the ruling I made yesterday was not an interlocutory judgment or order for the purpose of s 5F of the Criminal Appeal Act and that the right of appeal against an acquittal by direction arose after the verdict. I asked the Crown to let my Associate know if there was any reason why the case would not be ready to proceed this morning. I have been advised that the defence proposes to call evidence that this was likely to take around a day.

1. A surprising aspect of the Crown's application for further time to consider its position was that I was told that the Deputy Director who had originally directed the matter to proceed as a murder case only had a "quite limited" recollection of the matter (T 408). That is surprising in view of the history of the matter and the fact that I reserved judgment on this question from Friday at about lunch time until Tuesday. One would have thought that the Director's Office may have formulated a plan of action or application or acquired some understanding of the relevant appeal provisions in that time. At least, one might have expected there to be some discussion between the Crown Prosecutor who appears at the trial and those who instruct him.

1. As my judgment yesterday shows, the case involves a novel and interesting question. The Crown has been on notice of this from the day the decision was made to prosecute IL for murder. The history of the matter includes:

(1)   On 9 September 2014 the accused filed a response to a Crown Case Statement. It is signed by her solicitor, Mr Premutico, and includes the following:

"Points of law which the accused person intends to raise: Whether a prima facie case exists with respect to the count of murder."

(2)   On 12 September 2014 the Criminal List Judge (Johnson J) described the defence response as an "informative document" and asked the Crown to articulate the basis upon which the murder charge was to be presented to the jury (T 12/9/14, Johnson J, pp 1-2).

(3)   At a call-over before me on 31 October 2014 defence counsel confirmed that there would be an application for a directed verdict. I enquired whether that application would apply to the naturally arising alternative of manslaughter. At that stage there was no charge of manslaughter on the indictment.

(4)   The indictment presented at the commencement of the trial included the alternative count of manslaughter.

1. At all stages since at least 9 September 2014 the Crown has been on notice that there was a live issue as to whether a verdict of not guilty would be directed in respect of the murder charge. It had the defence submissions for a number of days prior to closing its case.

1. I reserved my judgment from Friday until Tuesday and the Crown was aware that the jury had been left awaiting the outcome of the "legal question" that it was told arose at the close of the prosecution case.

1. In those circumstances, it is altogether surprising that no consultation with anybody from the Director's Office had occurred before I delivered my judgment. The result is that the jury, which had been waiting patiently since the close of the Crown case at around 12.50pm on Thursday and had attended the court dutifully on Tuesday, was again asked to leave while the "legal discussions" continued (T 210).

1. It is notorious that members of the public find serving on a jury to be burdensome. Studies have shown that juries can find it particularly frustrating to be asked to come and go while lawyers debate legal issues in their absence. In any event, having given the Crown the balance of the day on Tuesday, 2 December, to consider its position in circumstances where its statutory rights of appeal are completely clear, my Associate was notified by email at 5.22pm on Tuesday afternoon:

"With respect to the current trial, it would be the Director's application that the trial be adjourned after the directed verdicts."

1. Because the jury was to return at 10am, my Associate notified the parties that I would sit at 9.45am to hear the application, assuming that arrangements could be made to have an interpreter present at the time. I received some written submissions on the adjournment application (see MFI 13). The learned Crown Prosecutor addressed briefly and spoke to those submissions this morning. The Crown confirmed that he was seeking, in effect, a discharge of the jury so that the Crown could appeal the directed verdicts.

1. The basis of the application is said to be, first, that an adjournment is required as a matter of fairness to the accused. It was submitted that the accused may be prejudiced because the jury has heard evidence relating to the death of Mr Lan. Defence counsel eschewed this saying that it would require some evidence of that matter to be adduced to support its case that it was Mr Lan, not LI, who was manufacturing the drugs.

1. The Crown went on to argue that there was no prejudice to the accused because she is on bail and it would not oppose bail continuing. Mr Pontello notes that the accused is on onerous bail conditions, including a curfew, reporting conditions and the deposit of substantial security. It might also be observed that she is entitled, nearly two years after being charged, to have some finality to the serious charges remaining on the indictment.

1. I can identify no prejudice to the Crown in the trial continuing.

1. For one thing, its appeal rights are enshrined in s 107. To discharge the jury to allow an appeal under s 107 to be prosecuted before re-commencing the trial and starting another one would be tantamount to converting the appeal into an interlocutory appeal similar in nature to those allowed under s 5F. In providing for appeals against acquittals, the legislature could have made it part of the s 5F scheme had it chosen to do so. It elected not to. No doubt that is because it did not want trials of this nature to be disrupted while the parties went to the appellate courts.

1. Secondly, the Crown has not conducted the trial in relation to the manufacturing charge any differently as result of the fact that the homicide charges were included on the indictment. As the Crown opened to the jury, the manufacture charge had to be proved before the jury could consider the murder charge. It was the foundational offence. If the jury is not satisfied of the Crown case on the manufacture, the prosecution would not be in a position to establish constructive murder, which is the only basis upon which murder could possibly be established.

1. All of the evidence available to the Crown on the manufacture charge has been presented. The Crown has identified no other relevant prejudice.

The written submissions assert that the judgment yesterday raises fundamental issues. Whilst that is true, I am unable to see how that is a basis for aborting a trial that has been running for some two weeks.

1. The Crown's written submissions put to me that "there are currently three cases in the pipeline that a timely ruling in this matter could determine". I asked about the details of those cases. The Crown Prosecutor could provide me with none (T 414, 416). He could not say if they were murder cases although he presumed that they were (T 415). He could not say if they were cases in which the participant in the manufacture had been injured or killed or if they were cases where an innocent victim unconnected with the criminal activity (T 415-416).

1. It was submitted that if the accused is found not guilty, the s 107 appeal on the murder would "fall away". While that is unquestionably true, I do not see this as basis to adjourn the trial. In fact, one might have thought it is a consideration pointing in the other direction. I can see no reason why the Court of Criminal Appeal should be burdened with deciding an unnecessary appeal on the basis of its academic interest, or the fact that it might have an impact on some other cases, the details of which are, to put it kindly, utterly unclear.

1. The Crown submissions do not address in any way the significant public expense of aborting the trial and then conducting it again, whether in this Court or the District Court in the event that the proposed appeal is unsuccessful.

1. There is no prejudice to the Crown in the other matters on the indictment proceeding to trial. The weapons charges are for present purposes irrelevant save as to the fact that (i) all of the evidence available on those charges has been adduced before the jury and (ii) they are serious charges in relation to which the accused is exposed to significant penalties. The manufacturing charge will go one of two ways. If the jury convicts, the Crown will not be prejudiced in the future running of a murder case or manslaughter case if its appeal against the directed verdict succeeds. It will be required of course to prove that offence if there is a retrial, but no prejudice would flow. If the jury acquits, then plainly, as the Crown has submitted, the whole premise of the homicide charge will evaporate.

1. This case has been listed since September of 2014, and at all stages the Crown has been on notice that the defence would apply for a directed verdict. The jury has been patient, and has come and gone throughout the trial. The Court has now sat for in excess of two weeks, and I have been informed that if the matter proceeds the likely timetable is that the defence case will finish tomorrow, the addresses will commence and probably finish tomorrow, and the summing up will at least commence on Friday. The jury is likely to be considering its verdict on Friday or Monday.

1. A relevant consideration is the convenience of this jury and the expense involved in upping stumps after a hearing of more than two weeks in the Supreme Court. All of the offences are alleged to have occurred on 4 January 2014, which is almost two years ago. By the time of the adjournment proposed by the Crown the matter would be over two years old.

1. Whether to discharge the jury, and whether to adjourn trial proceedings of this nature are questions involving the exercise of discretion. Having considered the Crown's submissions carefully, I reject the submission that the public interest and that of the accused militate in favour of discharging the jury and adjourning the proceedings until some future unknown date. While I accept that the question of clandestine laboratories is a matter of significant public concern, I cannot see how that can properly inform or dictate the proper exercise of the discretion.

1. For those reasons I refused the application for the adjournment, and the associated applications to discharge the jury. The trial continues.

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Amendments

14 February 2017 - paragraph [20] - replaced accused's name with "IL"

14 February 2017 - coversheet and paragraphs [1], [2] and [14] - replaced accused's name with "IL"

Decision last updated: 14 February 2017