R v Myers (No 1)
[2022] ACTSC 188
•25 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Myers (No 1) |
Citation: | [2022] ACTSC 188 |
Hearing Date(s): | 25 July 2022 |
DecisionDate: | 25 July 2022 |
Before: | Mossop J |
Decision: | See [13] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to adjourn trial – new evidence disclosed by Crown in days before trial – new evidence would substantially alter the Crown case – adjournment would result in significant delay – procedural unfairness to the accused – where no explanation provided by Crown for late disclosure – balancing of competing aspects of the interests of justice – application to adjourn trial refused |
Parties: | The Queen ( Crown) Thomas Myers (a pseudonym) ( Accused) |
Representation: | Counsel B Morrisroe ( Crown) R Baldeo ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Hugo Law Group ( Accused) | |
File Number: | SCC 61 of 2022 |
MOSSOP J:
Introduction
The accused, a young person, is charged with aggravated robbery. The offence is alleged to have occurred on 4 March 2021. The matter was committed for trial on 7 March 2022. The case statement was filed on 7 April 2022. The allegations are extremely serious. They involve a robbery of another young person. Not only are there alleged to be aggravating circumstances of the accused being in company, but also in possession of weapons. There are indications in the case statement that the complainant was targeted because of his homosexuality.
The Crown case, as articulated in the case statement, was based around the issue of identification. The identification is sought to be proved by a match between an image on a Facebook profile and evidence from the complainant that he recognised the accused at the time of the offending, and fingerprint identification evidence linking the offender to the complainant’s vehicle.
The proceedings were listed for trial to commence today, 25 July 2022. The Crown has applied to adjourn the proceedings. The application is based upon disclosure on Friday, 22 July 2022 of two categories of new material: first, Cellebrite download reports from the phone of the accused extracted in August 2021 and a Cellebrite extraction from the complainant’s phone. Second, telephone recordings of a phone call made by the accused from the Bimberi Youth Justice Centre which is said to contain admissions.
This new evidence would substantially alter the Crown case against the accused. Counsel for the accused has not yet had an opportunity to consider the download reports in any detail or consider what other evidence may be relevant arising from the change in the Crown case.
The Crown relies upon the following matters:
(a) the case involves a particularly serious aggravated robbery which resulted in injury to the complainant;
(b) the informant was isolated for COVID-related reasons, and it would be desirable that the informant give evidence in person;
(c) the evidence from the telephone extraction and the Bimberi telephone recording was relevant;
(d) that an adjournment would allow any investigation of the new evidence by the accused;
(e) that a number of Basha inquiries and an issue about the admissibility of the telephone calls could be dealt with today; and
(f) that the accused is in custody for other matters until November 2022.
Counsel for the accused opposed the adjournment. He submitted that there was procedural unfairness arising from the late disclosure and that the procedural unfairness should not be addressed by way of an adjournment because the Crown had been ready to proceed on the case articulated in the case statement up until the late disclosure on Friday, 22 July 2022. He submitted that as a result of the late disclosure, opportunities to investigate matters such as location data or CCTV corresponding with particular downloaded telephone records had been lost.
He submitted that he would not be available to run the case prior to November. Impliedly, he submitted that, in the circumstances, the accused should be entitled to retain the same counsel as had been briefed originally for the trial.
My enquiries of the Registrar indicate that if the matter is adjourned, it could possibly be listed in November or December 2022, but would most likely be listed in January 2023.
Whether or not to adjourn the trial depends upon balancing competing aspects of the interests of justice. Plainly, there is a very strong public interest in allegations of serious crime proceeding to trial upon the basis of all relevant evidence. On the other hand, there is clearly a strong public interest in an accused person having a trial in relation to which proper and timely disclosure is given, with the result that the accused has a fair opportunity to defend the allegations. There is a strong public interest in having matters proceed to trial on the date and time when they are listed for trial. In my view, the issue in the present case is resolved by the fact that there was no evidence providing any reason for the late disclosure by the Australian Federal Police to the Director of Public Prosecutions (DPP).
Plainly enough, decisions are made during the course of preparation of a brief for the DPP as to what evidence is to be relied upon. In the present case, the DPP has relied upon the evidence provided to prepare a case of a particular nature against the accused. In some cases, there may be good reasons why evidence in a case has to change. However, in the present case, I was simply told that new disclosures had been made and there was no evidence disclosing the reason for that change. In those circumstances, it cannot be concluded that there is a good reason for imposing upon the accused the burdens associated with a substantial adjournment of the trial.
In the absence of some explanation for the late disclosure, it is not sufficient, in my view, to justify an adjournment that the Crown case for a very serious offence may be improved or that an adjournment would allow the accused an opportunity to meet a different and strengthened Crown case.
In some respects, this is obviously an unsatisfactory outcome. It carries with it the risk that the jury will be asked to decide a very serious allegation of serious violent offending directed to a young person with less than all relevant and admissible evidence. However, that is a consequence of the late disclosure by the Australian Federal Police and the absence of any explanation or justification for that late disclosure.
The order of the Court is: The oral application made on behalf of the prosecution for an adjournment of the trial is refused.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 2 August 2022 |
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