R v Mohammad Al-SAYAHEEN

[2009] NSWDC 222

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 2 o’clock today, that is Thursday, so that I could be informed of progress of attempts to locate the accused and decide what would happen with the trial.

5 The case against the accused is that he sexually assaulted a German tourist who was intoxicated to a very high degree. The Crown case is that he did this in an apartment he shared with another man. When he was interviewed by police soon after the relevant events, he denied that the complainant had ever been inside the apartment. When Mr Johnson opened the case to the jury, he said that his client now accepted that that was a lie, that his version now was the complainant had been inside the apartment but there had been no sexual contact between them.

6 The allegations are very serious and if proved would inevitably require a significant custodial penalty.

7 The evidence establishes that the accused has voluntarily absconded. There are problems with the address that the accused gave to police in that it does not seem to exist. The surety was contacted and he said that the money which he put up to ensure Mr Al-Sayaheen, that is the accused’s, attendance was not in fact his money at all, but that it had been received from the accused’s parents in Jordan. I understand from both Mr Johnson’s opening and the evidence put before me today, that the accused is not an Australian citizen, is ordinarily resident in Jordan and has had his visa to remain in Australia cancelled.

8 It is clear that in the circumstances, as I have outlined them, I have a discretion as to whether this trial should continue (see R v McHardie and Danielson [1983] 2 NSWLR 733; R v Serrano [2007] VSC 209; R v Jones (1998) 72 SASR 281) . Whilst an accused has a right to be present during the course of his or her trial, that right can be waived. I am satisfied that by absconding, as the accused has done, he has waived his right to be present at his trial. No doubt one of the factors he took into account was the strength of the Crown case and the weakness of his response to it, as revealed in Mr Johnson’s opening. I need not go into the details but a particular item of evidence found in the accused’s apartment, is strongly supportive of the complainant’s version of events. That would no doubt have become apparent to the accused.

9 I confess that my first reaction on hearing that the accused had absconded was to exercise my discretion in such a way that the trial would continue. An accused person cannot be the person who decides that if things are going badly, he would like the trial to stop and start again. It is an important principle that an accused person is not able to control whether a trial continues or not by simply deciding whether to turn up. The complainant has flown from Germany to give evidence. That is of a particular hardship to her because she has a fear of flying. There is also a Crown witness who flew over from Perth yesterday. Because the complainant’s evidence has not been completed, although it was being recorded, a recording of her evidence will not be able to be used in a subsequent trial. When the accused is eventually found and arrested, if I exercise my discretion to discharge this jury, the complainant will have to go through it all again. They are powerful factors suggesting that I should exercise my discretion to order that the trial continue.

10 But, as in most things involving a judicial decision, there are countervailing factors. Two matters in particular are important to mention. One of those concerns the defence opening. It has no status as evidence and I would be required to tell the jury to put it out of their minds. The case would thus go to the jury on the basis that the only explanation offered by the accused is the one he offered to police, an explanation which, in the light of the evidence from the complainant, is doomed to fail. It is not in the interests of justice that the accused’s case, such as it is, is not put before the jury.

11 I also take into account in quite a significant way, that the trial had only been going for one day. If the accused had absconded twenty-four hours earlier the trial could not have started without him. In the well known decision of R v McHardie and Danielson, a case which has been followed throughout Australia (despite doubts expressed as to its correctness by Hunt J amongst others see R v Hallocoglu (1992) 29 NSWLR 67), the trial had been going for a number of days before one of the accused absconded and the other accused desired that the trial continue. Of course the fact that a trial has only been going one day before an accused absconds is not determinative on the question as to whether the trial should continue or not (see R v Jones), but it is a significant factor in my mind.

12 For these reasons, I am satisfied that my initial reaction was incorrect and that the interests of justice require that the jury be discharged and a new trial commenced once the accused is found. This is a decision I reach with great reluctance, recognising as I do that it will involve considerable inconvenience and perhaps even distress to the complainant as well as inconvenience to the jurors who have put aside their personal lives intending to sit as juror in this trial for about two weeks.

13 The decision I have reached might be thought to allow the accused to dictate the course of the trial which is perhaps a reason for my initial reaction. On the other hand, calm, considered, reflection on the various factors which I must weigh up in exercising my discretion, has persuaded me that the least worse option is to stop the trial and discharge the jury and that is what I will do.

**********