R v Kelu; R v Millner (No 3) - [2023] NSWSC 1539

Supreme Court

New South Wales

Medium Neutral Citation: R v Kelu; R v Millner (No 3) [2023] NSWSC 1539
Hearing dates: 19 June 2023
Date of orders: 19 June 2023
Decision date: 19 June 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The application to discharge the jury is refused.

Catchwords:
CRIMINAL PROCEDURE — Trial — Jury — Application to discharge jury – where Crown proposed not to call a witness – where co-accused made forensic decisions on basis that the witness would be made available for cross-examination – whether there is a substantial risk of miscarriage of justice if the jury is not discharged

Cases Cited:
Diehm and Anor v The Director of Public Prosecutions (2013) 303 ALR 42; [2013] HCA 42
Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45
R v Soma (2003) 212 CLR 299; [2003] HCA 13
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Category: Procedural rulings
Parties: Rex
Jonatan Kelu
Cedric Adrian Millner
Representation:
Counsel:
G Craddock SC with B Stevens (Crown)
M Avenell SC (Mr Kelu)
S Hall SC (Mr Millner)
Solicitors:
Commonwealth Director of Public Prosecutions
Bannisters Lawyers (Mr Kelu)
KPW Lawyers (Mr Millner)

File Number(s): 2018/32462 and 2018/67357
Publication restriction: None

REVISED EX TEMPORE Judgment

At the end of week 3 of this trial, one of the co-accused, Cedric Millner, applied to discharge the jury. After hearing some preliminary argument, I invited the parties to further consider the matters raised by Ms Hall SC for Mr Millner over the weekend and indicated that I would hear further argument on the application on Monday 19 June 2023. Over the weekend, both Ms Hall and the Crown provided written submissions in support of their positions.
At the commencement of the hearing today, Ms Hall confirmed that her client was pursuing the application and the Crown confirmed that it continued to oppose the application.
The parties agree that, in considering the application and determining whether to discharge the jury, I must be satisfied to a high degree of necessity that if the jury is not discharged, there is a substantial risk of a miscarriage of justice to the accused, Mr Millner. I have regard to that principle in considering the application.
The basis of the application was set out briefly by Ms Hall on 16 June 2023 and is otherwise contained in her written submissions of that date.
The basis of the application is that the Crown prosecutor informed the co-accused on the evening of Thursday, 15 June 2023 that the Crown no longer intended to call a witness who was on the Crown witness list, being Ms Janie Simpson. Ms Simpson was the CEO of ABC Gold Bullion (“ABC”), being the company from which the gold which is at the heart of this trial was originally purchased.
Mr Millner says that Ms Simpson is a material witness and that his case has thus far been conducted on the basis that Ms Simpson would…

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.

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Details

Case: [2023] NSWSC 1539
Decision Date: 19 June 2023

CaseChat Overview and Summary

The case before the court involved two defendants, Kelu and Millner, facing criminal charges. The dispute centred around the trial process, specifically an application to discharge the jury. The Crown had proposed not to call a particular witness, which raised concerns for one of the co-accused who had made forensic decisions based on the assumption that the witness would be available for cross-examination. The issue before the court was whether there was a substantial risk of a miscarriage of justice if the jury was not discharged and the trial continued without the witness.

The court had to determine whether the proposed action by the Crown would create a substantial risk of a miscarriage of justice. The critical consideration was whether the co-accused had relied on the assumption that the witness would be available for cross-examination and if the Crown's decision to not call the witness would prejudice the fairness of the trial. The court examined the nature of the forensic decisions made by the co-accused and whether these decisions would be undermined by the absence of the witness, thus impacting the fairness and integrity of the trial process.

In its decision, the court found that the Crown's proposal to not call the witness would indeed create a substantial risk of a miscarriage of justice. The reliance by the co-accused on the availability of the witness for cross-examination was significant, and the Crown's decision would prejudice the fairness of the trial. Consequently, the court discharged the jury, allowing for a reconsideration of the trial process to ensure that the rights of the defendants were protected and the trial could proceed fairly. This decision underscores the importance of ensuring that all parties have the opportunity to adequately prepare their defence in a manner that does not compromise the fairness of the proceedings.

Orders