R v Macdonald; R v Maitland (No 9)

[2022] NSWSC 1449

Supreme Court

New South Wales

Medium Neutral Citation:

R v Macdonald; R v Maitland (No 9) [2022] NSWSC 1449

Hearing dates:

21 October 2022

Date of orders:

21 October 2022

Decision date:

21 October 2022

Jurisdiction:

Common Law - Criminal

Before:

Dhanji J

Decision:

Discretion exercised to allow the Crown Prosecutor to give a closing address.

Catchwords:

CRIMINAL PROCEDURE – trial – judge alone – unrepresented accused – closing address – discretion to permit Crown Prosecutor to give a closing address

Cases Cited:

MS v R [2017] NSWCCA 252

R v Macdonald; R v Maitland (No 7) [2022] NSWSC 1412

R v Zorad (1990) 19 NSWLR 91

TS v R [2022] NSWCCA 222

Category:

Procedural rulings

Parties:

Rex (Crown)
Ian Michael Macdonald (Accused)
John William Maitland (Accused)

Representation:

Counsel:
P Hogan (Crown)
R Rajalingam (Macdonald)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Michael Bowe Solicitors (Macdonald)
J W Maitland (self-represented)

File Number(s):

2015/59990; 2015/59940

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: Ian Michael Macdonald is charged with two counts of wilfully misconducting himself in public office.

2. John William Maitland is charged as an accessory before the fact to the offences alleged against Mr Macdonald.

3. The trial is currently proceeding before me, having commenced on 7 September of this year. The trial has proceeded by way of judge alone. Mr Macdonald is represented by counsel. Mr Maitland is unrepresented. The Crown, of course, is represented.

4. Despite the fact that Mr Maitland has been unrepresented in this trial, it has not been necessary to give Mr Maitland any detailed advice as to the trial process, other than when particular issues have, from time to time, arisen. Mr Maitland's familiarity with the trial process was apparent from the outset. That, for the reasons that follow, is unsurprising.

5. Firstly, this is a retrial. Mr Maitland was obviously present and consequently witnessed the first trial which proceeded from an arraignment through to the return of verdicts by the jury. At that trial he was represented by senior and junior counsel. I may pause to note that the Crown case at least, is essentially the same at that earlier trial. Secondly, Mr Maitland is, to my mind, not an unsophisticated individual. In the course of his career in the union movement, he rose to the position of national secretary of the Construction, Forestry, Mining and Energy Union (the CFMEU). Subsequent to his retirement from the union, he became chairman of a company which ultimately became Doyles Creek Mining Pty Ltd, which is the company through which he became embroiled in the events the subject of this trial. As is evidenced in the material in this trial, part of his role in that company was the preparation of submissions to either the government or a government department. Additionally, whilst involved in the union movement, he held a number of significant responsibilities involving the international union movement.

6. In my reasons in R v Macdonald; R v Maitland (No 7) [2022] NSWSC 1412, I recorded my observation that Mr Maitland appeared to have conducted the case to that stage with a significant level of competence, despite the lack of representation and legal training. I noted that he had endeavoured to conduct his case efficiently, that he had competently opened his case and cross-examined Crown witnesses, and up until that point, presented his own case, including properly briefing Ms Cunneen of Senior Counsel from whom he obtained assistance by her acting as his interlocutor for the purposes of presenting his evidence-in-chief.

7. My reasons in R v Macdonald; R v Maitland(No 7) related to an application for an adjournment sought by Mr Maitland for the purposes of obtaining professional advice. That application was made in the context of the manner in which the trial was then unfolding. Significantly, this arose in the context of Mr Maitland having been cross-examined and his witnesses being cross-examined; that is, in the context of areas where the current trial had departed from the first trial. I understand Mr Maitland was able to obtain that advice and, thereafter, continued the trial the next day, maintaining the level of competence to which I have already referred.

8. We have now reached the stage of the trial where the evidence has closed and the parties are to address. In the ordinary course in a criminal trial the Crown would address, followed by, in a joint trial, each of the accused. Having regard to the nature of the trial, it is proposed that the parties provide written submissions which will then be supplemented by oral address. However, it is also the usual practice that the Crown does not address the jury where an accused is unrepresented.

9. In R v Zorad (1990) 19 NSWLR 91, some thirty years ago, the Court of Criminal Appeal accepted that there was (at 94E-F):

“… a practice in New South Wales whereby the Crown does not address in such circumstances [where an accused was unrepresented], but it is not a rule of practice, still less is it a rule of law." (emphasis in original)

10. The Court of Criminal Appeal further observed in Zorad (at 95C-D) that:

“In every case, the decision whether the Crown Prosecutor should exercise his right to make a closing address is for the trial judge to make in the exercise of his discretion.”

11. The authorities were recently discussed in TS v R [2022] NSWCCA 222, per Basten AJA at [91]-[102].

12. As is clear from the above, I have a discretion as to whether to permit the prosecutor to provide a closing address. MS v R [2017] NSWCCA 252 at [25]; TS v R at [102].

13. The following matters persuade me that the Crown should be allowed to address in this trial, both in the form of written submissions and oral submissions.

14. Firstly, the nature of the trial. This trial has been of some length, commencing on 7 September 2022. The trial has involved significant documentary material. The transcript of the evidence given by the witnesses called in the first trial was tendered. That comprises some 1,700 pages of material. A number of those witnesses were called to give oral evidence in this trial, raising issues as to what changes or qualifications were made to their previous evidence and what should be made of any such changes or qualifications.

15. Additionally, a significant volume of documentary material was tendered, being some five folders of material provided in the Crown case.

16. Additionally, at this trial Mr Maitland has given evidence himself, which did not occur at the earlier trial. His evidence, including cross-examination, proceeded over a number of days.

17. Additionally, Mr Maitland called evidence from witnesses. There was some detail in the evidence of those witnesses.

18. The Crown case is circumstantial. It seeks to draw together events occurring over a significant time frame, in particular from January 2007 through to the end of 2008. The case involves ultimately a question as to the inferences to be drawn from a significant array of material.

19. Secondly, I have no doubt that counsel for the Crown is well aware of his obligations as a Crown Prosecutor in providing a closing address. Basten AJA said in TS v R at [101] that:

“The prosecutor is, in any event, under an obligation not to resort to emotive appeals, and not to diminish the important function of the jury by reference to colloquialisms and loose thinking. No doubt that obligation is enhanced in circumstances where the accused is unrepresented." (footnote omitted)

20. While, as a judge sitting in a judge alone trial, I remain human, it is hoped that resort to emotive appeals or loose thinking would not be considered by the Crown to be good advocacy. In any event, even if, contrary to my expectations, such advocacy is engaged in, the fact that I am required to give reasons operates as a safeguard against my falling victim to a lack of discipline in my reasoning.

21. Thirdly, Mr Maitland will, of course, be entitled to address after the Crown. He is, as I understand it, in the process of preparing written submissions. I have already noted his background. There is no reason to think he is not capable of preparing an effective submission. That submission will be complemented by oral address. Once again, I note I have already commented as to the capacity he has demonstrated thus far.

22. In these circumstances, I am of the view that I am entitled to the assistance and should receive the benefit of a closing address from the Crown.

23. For these reasons, I exercise my discretion to allow the prosecutor in this trial to present a closing address.

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Decision last updated: 24 October 2022