R v Mohammad Al-SAYAHEEN

CITATION:	R v Mohammad Al-SAYAHEEN [2009] NSWDC 222
HEARING DATE(S):	17 August 2009 - 20 August 2009
JUDGMENT DATE:	20 August 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Stop the trial and discharge the jury.
CATCHWORDS:	Criminal law - Judgment - Continuation of trial - Accused voluntarily absconded whilst on bail - Waived right to be present at his trial - Should trial continue?
CASES CITED:	R v McHardie and Danielson [1983] 2 NSWLR 733 R v Serrano [2007] VSC 209; R v Jones (1998) 72 SASR 281 R v Hallocoglu (1992) 29 NSWLR 67
PARTIES:	The Crown Mohammad Al-Sayaheen
FILE NUMBER(S):	DC 2009/11/0108
COUNSEL:	Ms T Smith - Crown Mr P Johnson - Accused
SOLICITORS:	NSW DPP E.C Bramble Solicitor and Attorney

JUDGMENT

1 HIS HONOUR: The trial of the accused, Mohammad Al-Sayaheen, began two days ago on Tuesday. The jury was empanelled and after introductory remarks from me the Crown opened the case to the jury. Mr Johnson then opened the case on behalf of his client. In particular he said that his client would be giving evidence, and would say that he now accepts that what he told the police in a recorded interview he had with them, was not true.

2 The first witness was then called by the Crown. Evidence-in-chief was completed and she was part way through cross-examination at the end of the day. The following day the accused did not appear, as required. It was a condition of his bail that he arrive at Court escorted by either his solicitor or Mr Johnson or both but although they had made arrangements to meet him at Mr Johnson’s chambers, he did not attend. There was a short adjournment when enquiries were made as to whether the accused had just turned up late to Mr Johnson’s chambers, but after it became clear that that was not the case. I called the jury into Court, explained that the accused was absent for a reason that we could not ascertain (although I did give sickness as an example) and asked the jury to leave on the basis that they would be contacted if they were required the following day, that is the Wednesday.

3 Enquiries during the rest of the day were not of assistance in procuring the attendance of the accused. Counsel for the Crown called evidence from an interpreter who said that at the conclusion of the evidence on Tuesday, the accused said to her something like “my friends ask me why I have to go to Court when I can just get out of the country.” He indicated that his friends had said that they could assist him in that endeavour.

4 It thus became clearer, or much more likely, that the accused has absconded rather than met with misadventure. Accordingly, the jury members were contacted and asked not to come in on the Thursday but to attend at 10 o’clock on Friday, that is tomorrow. The matter was adjourned until…