R v Jones
[2022] ACTSC 177
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Jones |
Citation: | [2022] ACTSC 177 |
Hearing Date: | 26 May 2022 |
DecisionDate: | 26 May 2022 |
Before: | McCallum CJ |
Decision: | (1) Dismiss the application. (2) Confirm the trial date for 31 May 2022. |
Catchwords: | CRIMINAL LAW — EVIDENCE — Tendency evidence — application to vacate trial date — potential further complaints against accused which Crown may seek to rely on as tendency evidence — interests of justice — where preferable for complainant to give evidence only once — where delay presents cost to community |
Parties: | The Queen ( Crown) Liam Jones ( Accused) |
Representation: | Counsel B Morrisroe ( Crown) J Sabharwal ( Accused) |
| Solicitors ACT DPP ( Crown) Armstrong Legal ( Accused) | |
File Number: | SCC 233 of 2021 |
McCALLUM CJ:
Liam Jones is due to stand trial for offences of engaging in sexual intercourse without consent alleged to have been committed on 18 June 2021. He was committed to this Court for trial on 12 October 2021 and an indictment and case statement were presented by the Crown on 11 November 2021. On the same date, a pretrial questionnaire was completed by the Crown.
The matter is listed for trial commencing on 31 May 2022, that is, next Tuesday, and has been listed for hearing on that date for some time. By application in proceedings filed on Tuesday, the Crown seeks an order vacating the hearing date. In short, the reason the adjournment is sought is that, at what is conceded to be effectively the eleventh hour, the trial counsel allocated to the matter has ascertained from the informant that there is one, and potentially two, further complaints which might be relied upon by the Crown as tendency evidence.
The Crown accepts that the material has been uncovered at a late stage and involves default on the part of the informant (and I think the Crown) in bringing this material forward at an earlier point in time. While there were some verbal statements indicating to counsel for the accused or his instructor the possibility of further statements coming on 10 May 2022, the first formal notice of the application came to the accused only on Tuesday 24 May 2022.
The Crown appearing today is not at fault in any of these matters, having acted promptly upon identifying the prospect of the further material. The fact remains that it has been evident in the Crown brief from an early point. I note that the pretrial questionnaire completed by the Crown and filed on 11 November 2021 specifically answered the question, “[w]ill there be a pre-trial application in relation to tendency evidence” with the answer “no”.
Separately, I note that a large number of the questions in that questionnaire were answered by the Crown “TBA”, or, “[u]nknown to the Crown”. The point of the pre-trial questionnaire, it should go without saying, is to persuade the parties at an early point to resolve exactly the kind of issue that has now arisen.
The Crown has submitted that it would be in the interests of justice to vacate the trial because the fresh allegations suggest strongly that at least two women could give tendency evidence in the trial relating to the complaint of the other. That assumes that the accused will be charged with further offences arising from the statement taken yesterday. That would certainly be vastly preferable, if further charges are to be laid and separately if the evidence obtained yesterday relating to the fresh allegations is admissible as tendency evidence in the trial of the accused due to start next Tuesday. It goes without saying that complainants should, if possible, not have to give the same evidence twice in separate proceedings. I accept that that is a strong consideration in the interests of justice.
Against that however the accused has, for a considerable period of time, understood that his trial would commence next Tuesday. The Court has made special arrangements to have an acting judge present to meet the Court’s workload next week and that judge will be idle if this trial is vacated.
There is more however than simply the cost to the Court, and that is the cost to the community of delay in any prosecution involving an allegation of sexual assault, which is to be avoided, and the delay in other matters which might have been listed for trial next week had these matters been identified at an earlier point.
The Crown submitted that, because of the conversations commencing on about 10 May or perhaps earlier, when material was inspected by the solicitors for the accused to the effect that further statements might be coming, the accused was not taken “entirely by surprise yesterday” when the application was brought forward. I am not persuaded that that is a relevant consideration in the present application. The Crown cannot expect an accused or his lawyers to box at shadows based on informal statements about the prospect of further evidence in the wings.
The Crown further submitted that the prosecution of the present matter should not be prejudiced by the default of the prosecutor. As I have indicated, I accept that, on the assumption that tendency evidence is now available, there is some force in that consideration. The problem is that, even today, it is not possible to determine whether the evidence would be admissible as tendency evidence in the trial currently scheduled to commence next Tuesday.
For those reasons, I am not persuaded that the trial should be vacated at this late stage. I note that counsel for the accused has, in his careful written submissions which identify the timeline relevant to the present application, separately sought an order that the Crown be precluded from adducing tendency evidence in the trial. As I have indicated, it is not possible, even at this late stage, to ascertain whether the further statement obtained yesterday would be admissible as tendency evidence.
In all likelihood, if no application is brought forward until the commencement of the trial next Tuesday, the trial judge may well consider that the delay is such as to obviate any possibility of the Crown relying on that evidence in the trial, but in my view that should be a matter for the trial judge and not one for pre-judgment by me today.
For those reasons, the application is dismissed and I confirm the trial date for 31 May 2022.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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