R v Maunder

[2008] NSWDC 108

Reported Decision: 7 DCLR (NSW) 82

District Court

CITATION:	R v Maunder [2008] NSWDC 108
HEARING DATE(S):	10 June 2008, 11 June 2008
JUDGMENT DATE:	25 June 2008
EX TEMPORE JUDGMENT DATE:	11 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	Terminate the trial; Discharge the jury; Stand the matter over for further mention to appoint a new trial date
CATCHWORDS:	CRIMINAL PROCEDURE – trial – application to adduce alibi evidence – s 150 Criminal Procedure Act 1986 (NSW) – notice of alibi – notice given on day of trial – jury empanelled – notice not satisfying requirements as to particulars – whether to admit evidence – prejudice to Crown – whether to terminate trial – cost and inconvenience to community
LEGISLATION CITED:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW)
CASES CITED:	Cooper v R (1979) 69 Cr App Rep 229 Skondin v R [2005] NSWCCA 417
PARTIES:	Regina Steven John Maunder
FILE NUMBER(S):	2008/00003522
COUNSEL:	Mr Frank Holles (Crown) Mr Michael P King (Accused)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown) Bridge St Lawyers (Accused)

JUDGMENT

Introduction

1 Steven John Maunder, the accused, appeared for trial in the District Court, Tamworth on 10 June 2008. The indictment upon which he was presented contained two counts.

2 The first count, for an offence contrary to s 111 (2) of the Crimes Act 1900 (NSW), charged him in the following terms:

“On 30 November 2006 at Tamworth in the State of New South Wales, did enter the dwelling house of Maitland Lea Hinkley situated at unit 5/3 Murray Street with intent to commit a serious indictable offence therein, namely, assault occasioning actual bodily harm, in circumstances of aggravation, namely, that he was in company of another person, namely, Brendan Booby.”

3 The second offence, contrary to s 35 (2) of the Crimes Act was expressed in the following terms:

“On 30 November 2006 at Tamworth in the State of New South Wales, maliciously did wound Maitland Lea Hinkley whilst in the company of another person, namely, Brendan Booby.”

4 Upon arraignment the accused pleaded not guilty to both counts and the jury were selected.

5 Before the arraignment, counsel advised that there remained outstanding questions regarding some parts of an electronically recorded interview between the accused and police. The parties asked to delay commencement of the trial to allow the Crown to consider whether it might agree to excise some passages from the document. It was decided that the jury should be selected, and the trial proceed to the stage of opening addresses, and then the parties could pursue their discussions, in the time remaining that day. The trial was to resume the following day.

6 When the matter resumed about 12:20 p.m. the Crown advised that shortly before he had been given a document purporting to be notice of an alibi upon which the accused wished to rely, and that there was to be argument about whether the court should allow the evidence.

7 The jury were brought into court and I delivered my opening instructions to them. Thereafter they were allowed to separate so that I could hear the application for the admission of alibi evidence.

8 The application proceeded, and both parties offered evidence and submissions until late that day, when I adjourned the trial to the following day for final submissions and my decision.

9 I decided that the accused should be allowed to present the evidence, but that the Crown was not to be denied the opportunity to conduct its investigation of the alibi asserted. I discharged the jury, vacated the trial from the present sittings, and adjourned the matter for further call over on 25 June 2008.

10 The need for this decision, and the inevitable consequences it has and will have for many, could have been avoided if the accused and those representing had complied with s 150 of the Criminal Procedure Act 1986 (NSW), enacted to facilitate a just outcome in such circumstances. Their failure to do so was unacceptable. It has caused inconvenience to members of the community called to serve on this jury only to be told on the second day that the trial could not proceed, and has disrupted the work of the court, leaving other litigants with matters pending in subsequent sittings to suffer delay.

The History of the Proceedings

11 The offences are alleged to have been committed on 30 November 2006. The accused was committed for trial from the Local Court, Tamworth on 7 March 2008. In the committal proceedings his solicitor cross-examined the critical witness to the offences and challenged her recollection of the date of the offence.

12 In due course the trial was listed for call over, and was appointed to commence in the District Court at Tamworth on 10 June 2008. The trial was mentioned on the first day of the sittings, 2 June 2008. The accused’s solicitor, who had represented the accused in the committal hearing, and the Crown Prosecutor, advised that the trial would proceed. The accused’s counsel was to appear on the day of trial.

The Notice of Alibi

13 Section 150 of the Criminal Procedure Act provides:

“(1) This section applies only to trials on indictment.

(2) An accused person may not, without the leave of the court, adduce evidence in support of an alibi unless, before the end of the prescribed period, he or she gives notice of particulars of the alibi to the Director of Public Prosecutions and files a copy of the notice with the court.

(3) Without limiting subsection (2), the accused person may not, without the leave of the court, call any other person to give evidence in support of an alibi unless:


(a) the notice under that subsection includes the other person’s name and address or, if the other person’s name or address is not known to the accused person at the time he or she gives notice, any information in his or her possession that might be of material assistance in finding the other person, and

(b) if the other person’s name or address is not included in the notice, the court is satisfied that the accused person before giving notice took, and thereafter continued to take, all reasonable steps to ensure that the other person’s name or address would be ascertained, and

(c) if the other person’s name or address is not included in the notice, but the accused person subsequently discovers the other person’s name or address or receives other information that might be of material assistance in finding the other person, he or she immediately gives notice of the name, address or other information, and

(d) if the accused person is notified by or on behalf of the Crown that the other person has not been traced by the name or address given by the accused person, he or she immediately gives notice of any information that might be of material assistance in finding the other person and that is then in his or her possession or, on subsequently receiving any such information, immediately gives notice of it.


(4) The court may not refuse leave under this section if it appears to the court that, on the committal for trial of the accused person, he or she was not informed by the committing Magistrate of the requirements of subsections (2), (3) and (7) and, for that purpose, a statement in writing by the committing Magistrate that the accused person was informed of those requirements is evidence that the accused person was so informed.

(5) Any evidence tendered to disprove an alibi may, subject to any direction by the court, be given before or after evidence is given in support of the alibi.

(6) Any notice purporting to be given under this section on behalf of the accused person by his or her Australian legal practitioner is, unless the contrary is proved, to be taken to have been given with the authority of the accused person.

(7) A notice under this section must be given in writing to the Director of Public Prosecutions, and may be given by delivering it to the Director, by leaving it at the Director’s office or by sending it in a letter addressed to the Director at the Director’s office.

(8) In this section:

evidence in support of an alibi means evidence tending to show that, by reason of the presence of the accused person at a particular place or in a particular area at a particular time, the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

prescribed period means the period commencing at the time of the accused person’s committal for trial and ending 42 days before the trial is listed for hearing.”

14 The accused failed to comply with this provision in a number of respects.

15 Firstly, the notice was served on the day the trial commenced. This was so notwithstanding that the solicitor representing the accused must have had firm instructions from the accused that he was not at the place where the alleged offence was said to have been committed at the time of its alleged commission. I shall refer to the evidence leading to this conclusion in due course.

16 Secondly, no notice was ever given to the Director of Public Prosecutions. I note however, that delivery to the Crown Prosecutor responsible for presentation of the trial would I believe have satisfied that requirement had the notice been given within the prescribed period.

17 Thirdly, a copy of the notice was not filed with the court. The Crown Prosecutor tendered the handwritten notice upon the hearing of the application.

18 Fourthly, I do not believe that the notice complied with the terms of the provision. It did not give particulars of the alibi. The notice, so called, does no more than inform the Crown of an intention to call alibi evidence in the trial from the named individual. This does not in my assessment give notice of the particulars of the alibi upon which the accused wishes to rely.

19 The document is handwritten and is in the following terms:

“ Alibi defence

Notice

It is intended to call alibi evidence

in the trial of Stephen maunder

Witness Details

Donald Edward Hartin

………………

…………… …

Ph …………… …

Committing court: Local Court Tamworth

Trial venue: Tamworth

Charge: 1. Aggravated enter a dwelling with intent.

2. Malicious wording in company

10.6.08

Solicitor for accused ”

20 The particulars of Mr Hartin’s address appeared beneath his name, but are omitted here to protect his privacy.

21 There is an indecipherable signature beneath the date, which I take to be that of solicitor acting for the accused.

The Evidence Adduced upon the Application

22 The Crown tendered a statement given to the police by the accused’s partner, Rianah Cook (Exhibit 1), which represents at paragraphs [5] and [6]:

“I previously lived in a Tamworth with my mum at …………… I have lived in Tamworth all my life prior to moving to Newcastle. The only other place I lived was in a block of flats at …………… I lived at this location with Steven. We only lived there for 3 months. We moved into the flat in about mid September 2006 and moved out in late November of 2006. It was very late November, but I don't think it was December.

When we moved out I went to stay at Dads (sic) place in the …………… Caravan Park at Toronto. I stayed at Dads (sic) with Steven and we were there for about one week. After this Steven and I went to Queensland for two and a half weeks. We went up to Queensland so we didn't have to go back to Tamworth. We were both just sick of Tamworth.”

23 The statement includes the addresses occupied by Ms Cook and her mother and the name of the caravan park occupied by her father, omitted here to protect their privacy.

24 Counsel submitted that these paragraphs put the Crown on notice that the accused was intending to rely upon alibi evidence. I do not agree. Although in general terms it might be consistent with the proposition that the accused would assert that he was not in Tamworth at the time of the offence, it could not be said that these paragraphs provide notice of an intention to rely upon alibi evidence, or that their content satisfies the requirement that particulars of the alibi be provided. These passages provide no more than a description of the movements of the accused and Ms Cook, according to her imperfect recollection, at and about the time of the alleged offences.

25 The alibi evidence from Donald Edward Hartin upon which the accused wishes to rely was led from him. It is to be noted that this was but some of the evidence that might be adduced by the accused, should the alibi offered by the truth.

26 Mr Hartin is Rianah Cook’s father. The difference between their family names was not explained. He repairs and maintains the machinery of his employer’s clients in various places within New South Wales. He travels from place to place in the course of his work, and lives in caravan park type accommodation near to where the work is performed. He has a home at Werris Creek to which he returns intermittently; as I understood his evidence he is absent from his home for periods in excess of four weeks.

27 He said that about five or six weeks ago he had a telephone conversation with the accused’s solicitor after the accused and his daughter asked him to make contact. They discussed a visit by the accused and his daughter when they came to Toronto toward the end of November 2006. He was unable to recall the details of this visit immediately, and so contacted his credit card provider to obtain a copy of the statement of transactions for that period. An undated letter from Coles Myer Ltd. was tendered, with an envelope bearing the date “21 May 08”, and the statement of transactions on a credit card in the name Mr D E Hartin for the period from 19 November 2006 to 18 December 2006.

28 He said that he looked at this document for the first time the night before attending court. He had not seen it previously because he had not been at home to collect his mail.

29 By reference to that document the witness reconstructed the proposition that his daughter and the accused had come to visit him toward the end of the week in which 28 November 2006 fell. He concluded from the record of a significant purchase at the Coles supermarket at Toronto on 29 November 2006, that the accused and his daughter were with him at that time.

30 In response to cross-examination he acknowledged that there were time sheets and other records of his employer from which he could confirm his work commitments in this period.

31 He said that 28 November 2006 was significant to him because it was the anniversary of his cousin's birth, and said he followed his usual practice of telephoning him to mark the occasion. He conceded however, that he might not have called on that day if he had forgotten to do so, but he certainly would have called no later than the following day. As I understood his evidence, Mr Hartin’s implication was that he telephoned his cousin at a time proximate to the visit of his daughter and the accused.

32 He said that his daughter had telephoned him before coming to Toronto to inform him that they were about to leave to begin their journey. He asked her to call into his place at Werris Creek, but because of the lateness of the hour, he said that they should stay there over night and begin their journey the following day.

33 Werris Creek is to the southwest of Tamworth, along the road from Gunnedah to the New England Highway which it meets near the village of Murrurundi, well to the south of Tamworth. It is somewhat out of the way for someone travelling from Tamworth to Toronto unless there was a purpose in going there such as was suggested by Mr Hartin.

34 He said that he had a recollection of his daughter confirming that they spent the night at his home before continuing their journey.

35 He said he had a recollection of meeting his daughter and the accused when he finished work and that together they went to the supermarket to buy groceries before going home to the caravan park. He said that he knew this occurred before the weekend, because he was to work the following day, and he did not usually work on the weekend. The implication was that the day after their arrival in Toronto was another weekday.

36 He later added that he bought a quantity of groceries before the arrival of his daughter and the accused, and bought a second quantity on the day they arrived. He conceded that their arrival could have been on either the Thursday or the Friday, and that he could not at this stage be sure whether it was one or the other.

37 Mr Hartin’s evidence was qualified and was in my assessment largely a reconstruction rather than a description of his recollection. With this comment I do not intend to suggest dishonesty on his part, but one needs to bear in mind that he is in court in support of his daughter and her partner, and I am satisfied that he was concerned not to cause either of them harm with what he had to say. Notwithstanding this concern, Mr Hartin readily admitted the lack of certainty in his mind as to precisely when they arrived in Toronto.

38 A photocopy of a calendar for the financial year ending in June 2007 became Exhibit 4. It records 30 November 2006 as having fallen on Thursday.

39 Evidence was also called from the solicitor who has acted for the accused throughout these proceedings. He produced a letter of 12 March 2008 (Exhibit 5) from his firm to the accused in which the following appears:

“As discussed the Alibi Defence notice is very important in your circumstance. In the event that Rianah’s father can assist with verifying your whereabouts on 30th November, 2006 then you are obliged to provide the Crown with his details.

If he can assist I suggest that you arrange for him to make an appointment to see me so that I may take a statement from him.

Is it possible for your parents might have knowledge (sic) of your movements at the time. Is it likely that your former landlord/landlady/managing agent of the King Street unit is able to assist.

I also remind you of the wisdom of reviewing available records (bank accounts, telephone accounts, credit card purchases etc) to determine whether or not there is information within those records that would assist in identifying your whereabouts at that time.”

40 The notice from the local court of what was required should the accused intend to rely upon an alibi defence was enclosed with the letter.

41 Also tendered was a further letter from this firm on 6 May 2008 (Exhibit 6) in which the following appears:

“Further to my recent letter confirming your trial date of 10th June, 2008 I now need your urgent instructions.

You will recall my letter of 12th March, 2008, in particular the accompanying alibi notice. As you know Rianah's father was considered to be a potential alibi as to your whereabouts on the evening in question. I have not heard from either yourself or Rianah's father since the date of my letter.

I remind you that if the alibi defence is to be relied upon 42 days notice (prior to the trial date) is required to be given to the Crown detailing the nature of the defence. The time for giving notice has passed. Nevertheless here (sic) may still be an opportunity to give notice, provided it is given promptly. If Rianah's father can assist I need to speak with him urgently. The safe option is to provide me with his telephone number and I will make contact with him.”

42 The solicitor confirmed that he wrote both letters and believes he may have subsequently received a telephone call but did not have a relevant file note to assist him to remember whether he did so.

43 In response to questions from the bench he said that he took the view that unless and until he had spoken to the proposed alibi witness he could not give notice of the alibi. His attention was taken to the distinction that might be drawn between particulars of an alibi and the evidence that might be offered in support of it, and was asked why the particulars of alibi could not be provided in light of instructions that he must have had from his client that he was not present at the scene of the alleged offence. He responded by acknowledging his responsibility for the decision, and said that he thought at the time it was the correct one in circumstances.

44 I accept that he honestly held the view that he ought not to give notice of the alibi until he had made an assessment of the evidence available to support it, but it remains that if armed with instructions consistent with his correspondence, he must have had sufficient information to prepare a notice of the particulars of the alibi upon which the accused wished to rely, and that this could have been made available well before the 42 days preceding 10 June 2008 when the trial was appointed to commence.

45 The Crown tendered a statement from Wayne Beavan, manager of the company that employed the accused upon a casual basis, with copies of a roster and a time sheet (Exhibit 7). The roster recorded that the accused was to work in Tamworth on the three days between the 29 November 2006 and 1 December 2006. These dates fell on Wednesday, Thursday and Friday respectively. The time sheet is for the week ending 1 December 2006 and records him clocking in at 13:59 and clocking out at 22:00 on Monday, 27 November 2006, clocking in at 13:59 and clocking out at 22:00 on Tuesday, 28 November 2006, and clocking in at 13:49 and clocking out at 22:15 on Wednesday, 29 November 2006.

46 According to Beavan’s statement there is no reason recorded for the accused’s absence on the other days when he was rostered for work.

47 A statement by Renae Lowe of the Commonwealth Bank became Exhibit 8. She produced a copy of the statement of transactions for the accused’s account held with the bank for the period between 1 November 2006 and 2 January 2007. According to the entries on the statement the account was accessed via an automatic teller machine in Toronto on 6 December 2006, and the last time the account was accessed before then was via an automatic teller machine at Tamworth West on 29 November 2006. There are entries in between those transactions, which relate to the deposit of his salary and a loan repayment automatically debited.

48 The statement of Nicole Elizabeth Clare, who is alleged to have been present at the time of the alleged offences became Exhibit 9, and a copy of the transcript of her evidence before the magistrate in the committal hearing became Exhibit 10.

49 Her statement bears of the date 1 December 2006. There is no record of the time at which the statement was prepared. The document is of two pages containing 16 numbered paragraphs. At paragraph 4 she represented that about 10:30 p.m. or 11 p.m. on Thursday 30 November 2006 she and her partner, Maitland Hinkley, were at home in their lounge room when they heard a knock at the door, which Hinkley answered. Thereafter, she describes the events from which the charges have been brought, and the response by police and ambulance officers to her call for help. She waited with her partner as he was treated by the responding ambulance officers, and went with him to hospital where he received further treatment. After this, police took them to the police station at Tamworth. She there made her statement. It must be that this was after midnight. The fact that the statement bears the date 1 December 2006 excited cross-examination about the accuracy of the information she provided in the document as to when the offences and other events preceding it occurred. It was misinformed. The evidence before the magistrate that the statement was made the night of the alleged offences must be accepted to be accurate, even though the document bears the date 1 December 2006. The statement must have been recorded in the early hours of the morning on that date.

50 Ms Clare recognised the accused and his alleged accomplice. She has known the accused for some years. According to paragraph 14 of her statement she stayed at the accused’s house on Wednesday night, 29 November 2006, and left there about 5:30 p.m. Thursday after she had spoken to the accused‘s accomplice.

51 The purpose for having Ms Clare for cross-examination at the committal proceedings was to test what was said to be evidence of identification or recognition (Transcript page 2.), but as noted, the questions extended to test the representations as to the dates upon which various events occurred.

52 She maintained that her statement was made on the night of the incident. (Transcript page 2.)

53 She at all times maintained that the accused was one of the participants in the home invasion. (Transcript pages 6, 7, 12, 15, 16, and 31.)

54 She gave evidence of circumstances from which one might conclude that the accused and his alleged accomplice were well known to her. (Transcript pages 6, 7, 11, 14, and 18.)

55 She confirmed that she saw the accused and his alleged accomplice for about half an hour during the daytime on 29 November 2006, the day before the home invasion, at the home unit occupied by the accused and his partner Rianah Cook, after which she went to Maitland Hinkley’s unit. (Transcript pages 8, 9, 10, 18, 19, 22, 23, and 24.)

56 She gave evidence of events once the offenders left the premises, including attending the Maitland hospital and the police station. (Transcript pages 13 and 14.)

57 The transcript from page 21 records cross-examination of Ms Clare suggesting inaccuracies in her statement. As I understand the proposition implicit in these questions, aided by submissions from the accused’s counsel, it is that the witness was mistaken as to the date upon which the incident occurred. The Crown on the other hand submits that there is ample evidence to establish the date upon which the offence is alleged to have been committed in the records of when the call for assistance was made, and from the observations of the attending police and other emergency personnel, and other witnesses.

58 I am not persuaded that it can be said with any confidence that the witness made any concession as to the date of the offence as recorded in the statement, nor as to the events that occurred on the day before when, she said, that she attended the home of the accused and Rianah Cook and there saw the accused and his alleged accomplice.

59 Upon the analysis of the statement and the transcript of her evidence provided below, I find that the proper conclusion to draw is that she was speaking of the events from which the charges have been drawn on 30 November 2006, and events on the preceding day when she visited the other premises. Any apparent uncertainty in her mind as to these dates should be measured against the nature of the questions put to her in cross examination, some of which focussed upon two paragraphs which do not appear to have been recorded with sufficient care.

60 The opportunity for confusion is first demonstrated at page 20 line 3 where in the following is recorded:

“Q. Madam, it is the case isn’t it that you made a statement to the police on of the morning after these events being the morning of 1 December?
A. The morning after the events?

Q. Yes?
A. I think I made a, no I made a statement that night.”

61 Thereafter, from the bottom of page 20:

“Q. Do you recognise that --
A. Yes that is --

Q. -- as the statement that you gave to the police on one December?
A. On 1 December?

Q. Yes. 2006?
A. Sorry I just have to get something straight. Did the incident happen on the 30th?

Q. Yes?
A. Yes well I made the statement on that same night.

Q. Just have a look at the statement. See alongside or just below the signature, do you see the date "1 December 2006"?
A. Yes it says the 1st yes.

Q. So you accept that’s the day that you made your statement, is that right?
A. But, yes but I did not make a statement on the 1st. I don't understand what you are saying.

Q. Well tell me this, the incident happened on the night of 30 November?
A. Right.

Q. Right. The following day --
A. Right.

Q. Right, is 1 December?
A. That's correct.

Q. Did you make your statement to the police on the following day?
A. No, I made it on that night.

Q. Could it have been in the early hours of the following morning?”

62 Thereupon her Honour intervened and asked:

“Q. After midnight?
A. I'm sorry, yes it could have.”

63 This resolved what might have been confusion in the mind of the cross examiner, which in turn prompted responses from the witness which suggest that she was uncertain as to the time when this incident occurred.

64 The cross examiner then took the witness to paragraph 14 of her statement and asked her to read it to herself. She immediately responded that it was not correct. The following exchange that occurred:

“Q. I see. But nevertheless it was the statement that you gave to the police?
A. That's correct but I don't - I honestly do not remember writing that. It's a mistake, that's incorrect.

Q. So that part of the statement is wrong?
A. That's right.”

65 Paragraph 14 contains more than one representation of fact. It describes the length of time the witness knew the accused, the circumstances in which she came to know him, and the following passage:

“I actually stayed at Rianah and Stephen's house on Wednesday night, the 29th of November, 2006 and left there about 5:30 p.m. Thursday after I've spoken to BJ.”

66 The transcript does not make clear precisely what the witness challenged in that paragraph, but it is a reasonable inference to draw that the quoted passage is the representation she did not accept as accurate.

67 Wednesday did fall on 29 November 2006, and Thursday on 30 November 2006.

68 The cross examiner then asked her to read to herself paragraphs 13. Thereafter the following exchange occurred:

“Q. Now Madam, bearing in mind of the statement date is 1 December 2006, is it the case that you spoke with BJ at Riana's (sic) place at 5 p.m. on 30 November?
A. Yes we did but it was a very basic conversation, it was "Hi, how are you going, how's life", that was it. Nothing was said about Maitland or the incident that happened that night after that, if that's what you are trying to --

Q. Didn't you tell us earlier on that you had not been to Riana's (sic) place on 30 November?
A. I went there the day before the incident yes.

Q. The incident was on 30 November?
A. Right.

Q. You say you went there on 29 November?
A. Right

Q. Want I am asking you - listen to the question carefully - see the statement date is 1 December?
A. Yes.

Q. And you see the words in the third paragraphs, or second paragraph, "The last time I spoke to BJ was yesterday at about 5 p.m.". Was "yesterday" 30 November 2006 at 5 p.m. or were you intending to refer to 29 November 2006?
A. Intending to refer to the 29th.

Q. So does that help you as to what time it was that you were at Riana's (sic) place on the 29th?
A. I guess so yes.

Q. So it wasn't about midday --
A. I am not sure, that's why I say I'm not sure. I really can't remember.

Q. Well you see the statement there, 1 December --
A. And that's right, and I also wrote of this statement are long time ago too.

Q. Well what I am asking you, do you accept is the statement paragraph 13, is that correct? (sic)
A. Yes besides it says "I have been friends with him", that's not correct. I was never his friend.

Q. So that's a mistake too is it?
A. Yes.”

69 Paragraph 13 of the statement is in the following terms:

“I’ve known BJ BOOBY for about four years. I haven't been friends with him, I’ve sort of just known him. His girlfriend four years ago was one of my friends and that's how I know him. The last time I spoke to BJ was yesterday at about 5 p.m. I saw him at Rianah COOK’S house in South Tamworth. Rianah is a friend of mine and she lives with Steven MAUNDER. Steven was there yesterday when I was talking to BJ.”

70 There was a risk of confusing the witness when the cross examiner referred to the third paragraph or second paragraph whilst taking her attention to paragraphs 13 in her statement. His intention no doubt was to refer to the second or third sentences in paragraph 13. It appears that the witness understood this.

71 It appears also that part of the confusion in the mind of the cross examiner, implicit in the questions he was asking, arose from the structure of paragraph 13, bearing in mind that it was written in the early hours of 1 December 2006, but with the mind of the person making the statement focused upon the night of 30 November 2006 when the offences are alleged to have occurred. Understood in that context, paragraph 13 represents that the witness attended the other premises on 29 November 2006, a fact from which she has not resiled.

72 If paragraph 13 is to be so understood, the second half of paragraph 14 quoted above, must be incorrect as Ms Clare asserted. It might be the product of some confusion in the mind of the person recording the statement, or in what Ms Clare expressed herself, and in either case was not detected when the witness was called upon to adopt the document with her signature.

73 Another error is apparent when one notes her comment regarding paragraph 13, asserting that it said she had been friends with BJ Booby. Both the witness and the cross examiner appear to have misread the paragraphs at this point for it states quite clearly (emphasis added):

“I haven't been friends with him,”

74 This mistake was identified by the magistrate and brought to the attention of the cross-examiner.

The Significance of the Alibi Evidence

75 I have undertaken this analysis of the evidence to assess the significance the alibi evidence might have in the trial.

76 Although the evidence available to the Crown pointing to the guilt of the accused is compelling, without the evidence of Ms Clare the Crown would be unable to succeed. I am not persuaded that the cross examination of Ms Clare in the committal proceedings has diminished her credibility at all, but this must be a qualified perception without having had the benefit of observing her as she gave her evidence.

77 Although the evidence of the accused’s employment in Tamworth and the activity upon his bank account is consistent with the Crown's case that the accused was present in Tamworth at the time of the commission of these offences, as presented to the court upon this application it does not of itself prove that the accused was in Tamworth at that time.

78 If the accused was elsewhere, clearly he could not have committed these offences, and evidence of an alibi must play a critical part in the trial. This is particularly so if Ms Clare presents with the credibility and reliability which I have inferred from the transcript of her evidence.

The Principles

79 Counsel for the accused submitted accurately that the proper course when an accused has failed to give notice of an alibi within time is to allow service of the notice out of time and permit the Crown an adjournment to carry out its investigation: Cooper v R (1979) 69 Cr App Rep 229.

80 In Skondin v R [2005] NSWCCA 417 it was said at paragraph 47:

“A court should be slow to refuse a leave application under s 150 (2) [of the Criminal Procedure Act ] unless prejudice arises such as is incapable of being addressed without significant disruption of the trial.”

Prejudice Claimed by the Crown

81 The Crown argued that if evidence of an alibi was to be admitted it would suffer substantial prejudice, such that in the proper exercise of the court's discretion it ought not to be allowed, or alternatively, the trial should be adjourned to allow the Crown to requisition inquiries to address the evidence upon which the accused would rely. Those inquiries would include:

(1) Investigations of the credit card provider to confirm the dates identified in the transaction details in the credit card statement, and to ascertain whether they are merely the dates upon which the debit is posted to the account of the credit card holder, or represent the actual date upon which the transactions have occurred;

(2) Investigations of the supermarket where the transactions occurred to identify and access its records relevant to these transactions; and

(3) Investigations of the employer of the alibi witness to confirm his working roster for the period.

82 The Crown said there may well be other matters to investigate, depending upon the terms of the notice when it is properly crafted and served.

The Decision

83 There can be no doubt that the solicitor representing this accused had clear instructions that his client was not present in Tamworth at the time of the offences with which he is charged. No other conclusion can be drawn from the nature of the cross-examination in the committal hearing and the passages from his correspondence to the accused to which I have earlier referred.

84 I have no difficulty accepting that the solicitor made his decision not to provide particulars of the alibi when he ought to have done so for the reasons he has given. Moreover, the terms employed in that correspondence makes clear that he was not intending to disadvantage the Crown or defeat the purposes of s 150 of the Criminal Procedure Act.

85 However, his decision was ill-advised, and has caused inconvenience to the court, the Crown, the witnesses who were waiting to be called in the trial, and significantly, to the members of the community who answered their summons to serve as jurors, particularly those who were selected for this jury, detained for the first day of the trial, to be informed on the second day that the trial could not proceed.

86 I gave consideration to refusing the application to call alibi evidence for it was certain that this trial would be disrupted. The inquiries the Crown is entitled to make could not have been completed during present sittings of the District Court in Tamworth. I came to the view, however, that in the interest of justice the accused should be given the opportunity to present the alibi evidence, but only after proper notice was served upon the Crown so that it might conduct its investigation.

87 I contemplated continuing the trial with the Crown to have its investigations carried out as it proceeded, however both counsel agreed that the anticipated inquiries would require much more time than the week or so set aside this trial, and would leave the jury substantially inconvenienced. Both counsel submitted that the jury ought to be discharged, and that the trial be vacated from the present sittings.

88 In due course the jury were discharged with the thanks of the court, and an apology for the inconvenience caused to them. The trial was listed for call over on 25 June 2008.

89 The accused was not subject to bail until this stage of the proceedings. This arrangement was not appropriate in my assessment of the offences alleged against him, and the outcome should he be found guilty. The accused was required to submit to bail. Upon the application of the Crown, it is a condition of the bail that the accused not approach directly or indirectly any witness to be called by the Crown, except for his partner Rianah Cook.

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