Court Of Criminal Appeal: Prior, Lander and Wicks JJ
PRIOR J: I agree with the reasons given by Lander J. The appeal should be dismissed.
LANDER J. The appellant appeals against a conviction entered after a trial by Judge and jury in the District Court.
The Charge on the Information
The appellant was charged jointly with Jason Matthew Quinn with wounding with intent to do grievous bodily harm and assault occasioning actual bodily harm.
Mr Quinn pleaded guilty to the second charge and a nolle prosequi was entered against him in relation to the first charge. The appellant was arraigned on the first count to which he pleaded not guilty and the Director Of Public Prosecutions entered a nolle prosequi in relation to the second count.
Thus the trial proceeded upon the first count only and in relation to the appellant only.
The Course of the Trial
The appellant was granted a bail agreement before trial and remained on bail during the hearing of a voir dire application which preceded the trial.
The trial commenced on 22 June 1998 more than a month after the voir dire hearing. A jury was empanelled, the appellant was arraigned and he pleaded not guilty. The Crown opened and called evidence from the victim.
On 23 June 1998, the accused did not appear. Counsel for the accused could give no explanation for her client’s non attendance. His Honour adjourned until that afternoon when the learned Trial Judge ordered the issue of a bench warrant and further adjourned the trial until the next day.
On the next day there was still no appearance of the accused and the bench warrant was not returned. Counsel for the accused still had no instruction from the appellant. Counsel for the accused applied for an adjournment but that application was opposed by the Director Of Public Prosecutions. Counsel argued that it would be very difficult to continue in the absence of the accused, he being the only witness who it was intended would be called in the defence. Counsel said: [TX 67]
“I would suggest that if the trial were to proceed, that my client would be prejudiced and we would risk having a verdict from the jury that might be unsafe or unsatisfactory.”
The learned Trial Judge ruled in the exercise of his discretion that the trial should continue in the absence of the accused. Counsel for the accused then sought an adjournment until the afternoon to get advice in relation to her position. His Honour acceded to that request. The matter resumed that afternoon and the learned Trial Judge advised the jury that the accused was not present in court. He also told the jury that there was a principle of law that there was nothing more fundamental to the fair administration of justice than the right of an accused person to be present if he or she desires it during the whole of the hearing. However, he said that he…
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 Jones
Sign in free to access the full text
Details
AGLC
R v Jones [1998] SASC 7021
Case
[1998] SASC 7021
Decision Date
CaseChat Overview and Summary
The Court of Criminal Appeal in this case heard an appeal by the appellant, Jones, against a conviction entered by a jury in the District Court. Jones was charged jointly with Quinn with wounding with intent to do grievous bodily harm and assault occasioning actual bodily harm. Quinn pleaded guilty to the second charge, and Jones was arraigned on the first count, to which he pleaded not guilty. The trial proceeded only on the first count, and Jones was the only appellant in the trial. The issues before the Court were whether the trial judge erred in refusing to exclude evidence of photographic identification and in continuing with the trial in the absence of Jones. The Court found that the trial judge did not err in either decision. The photographic evidence was admissible as the police had given Jones an opportunity to participate in an identification parade, which he did not take. The trial judge also did not err in continuing with the trial in the absence of Jones as Jones had waived his right to be present by unlawfully absenting himself from the trial. The appeal against conviction was dismissed.