R v Patrick Michael Sheehan
[2005] NSWCCA 250
•18 July 2005
CITATION: R v Patrick Michael Sheehan [2005] NSWCCA 250
HEARING DATE(S): 18/07/2005
JUDGMENT DATE:
18 July 2005JUDGMENT OF: Brownie AJA at 27; Buddin J at 1; Latham J at 28
DECISION: Leave to appeal refused.
CATCHWORDS: Appeal under s 5 F Criminal Appeal Act - refusal of District Court to adjourn trial - unavailability of witnesses - challenge to exercise of discretion
LEGISLATION CITED: Criminal Appeal Act
CASES CITED: House v The King (1936) 55 CLR 499 at 504-5
Murphy v The Queen (1988-9) 167 CLR 94
R v Alexandroaia (1995) 81 A Crim R 286
Thornberry v The Queen (1995) 69 ALJR 777PARTIES: Crown
Patrick Michael SheehanFILE NUMBER(S): CCA 2005/1293
COUNSEL: C Everson ( Crown)
J Doris (Applicant)SOLICITORS: S Kavanagh (Crown)
A Torok (Applicant)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/21/375
LOWER COURT JUDICIAL OFFICER: Hock DCJ
2005/1293
MONDAY 18 JULY 2005BROWNIE AJA
BUDDIN J
LATHAM J
1 BUDDIN J: The applicant seeks leave pursuant to s 5F of the Criminal Appeal Act to appeal against the order of a District Court judge refusing to adjourn the applicant’s trial. It is common ground that the challenge falls within the scope of s 5F: see R v Alexandroaia (1995) 81 A Crim R 286.
2 The applicant stands charged with knowingly having taken part in the sale of a number of firearms or pistols. He is also charged with having had possession of them. The offences are alleged to have occurred on 23 September 2001. The applicant was arrested and charged with these offences on 18 July 2002. He was committed for trial on 14 April 2003. Five other persons were also alleged to have participated in these offences. Each of them has now pleaded guilty and been sentenced.
3 The applicant’s matter was first listed for trial on 3 November 2003. On at least two occasions the trial did not proceed on the appointed date. The matter was eventually fixed to commence on 11 July 2005 with an estimate of four weeks.
4 On 8 July 2005 the Crown filed a Notice of Motion in which it sought orders that the trial date be vacated and that a new trial date be set for 25 July 2005. In essence the Crown requested that the trial be adjourned for a period of two weeks. The application was made on two bases. The first related to the sudden illness of a material Crown witness. As matters transpired, the applicant indicated a willingness to make an admission in respect of that witness’ evidence. As a result of that indication the Crown’s concerns in respect of that issue at least were allayed.
5 The other basis upon which the application was made related to the unavailability of another Crown witness, a Dr Helen Fraser. The Crown’s instructing solicitor swore an affidavit in support of the Notice of Motion in which she asserted that the Crown had not originally intended to call Dr Fraser. Accordingly she said that it had not ascertained her availability when the matter was fixed for trial. Subsequently, however, the representatives of the applicant indicated that they wished the Crown to make Dr Fraser available as a witness at the trial. Inquiries revealed that Dr Fraser would not be available during the period between 15 – 25 July as she was due to present a paper at a conference in Seoul, South Korea.
6 When the matter was called on for hearing in the District Court, the Crown sought an adjournment of the trial in the terms foreshadowed in the Notice of Motion. The application was not opposed. Discussion then ensued to ascertain if the matter could proceed in a manner which would accommodate the fact that Dr Fraser was going to be unavailable during the period which I have indicated. It emerged that the court was not able to provide a four week block of time commencing on 25 July as the Crown had originally requested. The next available block of four weeks which the court could provide was not until 22 August. The difficulty that that date presented was that it could not be immediately ascertained if all the other witnesses to be called in the Crown case would be available at that time.
7 It is important at this point to observe that during the course of debate about the adjournment application, it emerged that there were a number of matters of a preliminary nature that needed to be resolved before a jury could be empanelled. It appears that the Crown had received prior notice of at least one such issue. Nevertheless it seems that other matters only arose for the first time during the course of the discussion to which I have just referred.
8 The case which the Crown seeks to present against the applicant involves an allegation that he was involved in the supply of a number of firearms or pistols to a Mr Archer who, together with a number of other persons, was responsible for on-selling the weapons to the ultimate purchasers. The Crown case against the applicant depends substantially, it appears, upon the contents of intercepted telephone conversations between Archer and a person whom the Crown alleges is the applicant. In seeking to establish that it is the applicant’s voice, the Crown seeks to rely upon the evidence of the officer in charge of the case, who has not only listened to the conversations but who was also present when a search warrant was executed upon the applicant’s premises. The Crown also relies upon other pieces of evidence, including material obtained during the course of the execution of that search warrant.
9 The Court was informed that Dr Fraser, who is an expert in linguistics, has apparently expressed an opinion which falls well short of establishing that the voice on the telephone intercepts is that of the applicant. It was in those circumstances that the applicant foreshadowed to the trial judge an objection to the admissibility of the “ad hoc” expert opinion of the police officer. A challenge to the admissibility of the search warrant itself and what was located as a consequence of it was also foreshadowed during the course of the discussions concerning the adjournment application. It appears to be common ground that if either of those challenges was to succeed, then the Crown may well be unable to establish its case.
10 It was against that background that the trial judge indicated a view that the interests of justice required the commencement of the hearing of the preliminary matters, even if it meant that at some stage the hearing of those issues would have to be interrupted to await the return of Dr Fraser. Notwithstanding the Crown’s original position, it appeared content to embrace that proposal. Counsel for the applicant indicated from the bar table, without any supporting evidence, that were there to be any such interruption then the delay may well place his client in a position of “financial embarrassment before the end of the trial”.
11 Shortly after proceedings commenced on the second day, the trial judge formally refused the Crown’s application and indicated that the matter would proceed. The trial judge gave no reasons for refusing the adjournment and nor, at least initially, were any sought. It is clear from the transcript however that her Honour was of the view that it was expedient to at least proceed with the resolution of the preliminary issues. As her Honour said, it was possible at any stage for her original decision to be revisited.
12 The balance of the second day of hearing was occupied with evidence taken on the voir dire in respect of the challenge to the admissibility of the search warrant, a matter with which the evidence of Dr Fraser was not directly concerned. Indeed evidence taken on the voir dire concerning this issue occupied the following two days as well. It is apparent that that time has been well spent. It is now also clear that that issue has taken considerably more time to ventilate than had been originally indicated.
13 The applicant’s first challenge is to the trial judge’s refusal, when requested to do so, to adjourn the trial on either the first or second days of the hearing. The refusal of an adjournment involves the exercise of a discretion: see Thornberry v The Queen (1995) 69 ALJR 777. The principles governing the challenge to an exercise of a discretion are well established: see House v The King (1936) 55 CLR 499 at 504-5. It is a discretion that will not be lightly interfered with by an appellate court.
14 In Murphy v The Queen (1988-9) 167 CLR 94, Mason CJ and Toohey J said that:
- “[t]he importance of a fair trial to an accused person cannot be underestimated. But it is not the only consideration. It is important that anyone charged with a criminal offence be brought to trial expeditiously. Not only is that in his or her own interest but it is in the interest of witnesses… It is inimical to the orderly disposition of the work of the courts that trials are adjourned unnecessarily.” (at 99)
15 To similar effect are the observations of this Court in Alexandroaia (supra), in which it was said that there is a “strong public interest that, once fixed for hearing upon the basis that the parties were ready to proceed, a criminal trial should proceed with expedition” (at 291).
16 The public interest identified in Alexandroaia is only increased when regard is had to the leisurely fashion in which the present matter has thus far proceeded.
17 The applicant contends that the trial judge fell into error in not giving sufficient weight to the fact that the application to adjourn the trial was, in effect, a joint application. However, as the applicant properly acknowledges, the Crown has not sought to challenge her Honour’s ruling in this Court notwithstanding the fact that it was the moving party in the Court below. In other words, circumstances have now changed. The trial judge was not bound in any event to accede to the application simply because both parties supported it. The arguments relied upon in support of the first basis upon which the application for leave is put, do little more than revisit the submissions which were advanced before the trial judge. In my view, the applicant has fallen well short of demonstrating that the trial judge made an error of the relevant kind.
18 The applicant also challenges the trial judge’s ruling upon an additional basis. On the third day of proceedings counsel for the applicant reviewed his application for an adjournment. Indeed, he made more than one such application. It is far from clear from the transcript what occasioned those applications. In any event each of them was refused. It may be that the Crown’s indication to counsel for the applicant that it wished to call Mr Archer in its case may have given rise to one or more of those applications. No prior notice had been given of its intention to do so. Nor did the Crown have a statement from him. Moreover, as Mr Archer was in custody it was necessary for the Crown to obtain an order requiring his attendance at court. Furthermore, the clear indication was that Mr Archer did not wish to assist the Crown and nor did he wish to be subpoenaed to attend court. It seems that the Crown contemplated having Mr Archer examined upon a Basha inquiry in advance of the trial and for that purpose had put in place arrangements with the District Court registry which were designed to secure his attendance at court on 19 July.
19 The trial judge ultimately cancelled the order for Mr Archer’s attendance. Her Honour went on to express concerns about the Crown calling that witness in the circumstances to which I have adverted. Her Honour requested that the Crown give further consideration to the issue. Notwithstanding her Honour’s apparent attitude the Crown indicated, after a short adjournment, that it was still proposing to call Mr Archer. As I understand the situation the Crown wishes in the first instance to ascertain from Mr Archer in the witness box whether he is prepared to give evidence and, if he is, to ascertain what evidence he could give. The Crown indicated to the Court that it would need to give further consideration to its position should it transpire that Mr Archer is not prepared to give evidence. We were also informed that an application to set aside the subpoena requiring Mr Archer’s attendance has been foreshadowed. Indeed, Mr Archer has obtained separate representation for that purpose. Mr Doris, who appears on behalf of the applicant, contends that the fact that the Crown intends to call Mr Archer will occasion prejudice to his client. Furthermore, he submits that should the need arise he would have to test his credibility. He asserted that he is not presently in a position to do so.
20 It appears to me that it is in the interests of everyone to have the issue concerning the calling of Mr Archer resolved sooner rather than later. Should it transpire, contrary to present indications, that Mr Archer is prepared to give evidence and that such evidence is adverse to the applicant, then the trial judge will be able to consider what, if any, consequences should then flow. However, that point has not yet been reached. Commonsense dictates that the application to set aside the subpoena requiring Mr Archer’s attendance as a witness should be heard and determined as soon as possible. Obviously the trial judge has yet to rule upon that matter and we were informed that that matter can be agitated later this week. In those circumstances I can see no basis upon which this ground can possibly succeed and accordingly I would reject it.
21 When the matter was called on for hearing in this Court, the applicant sought leave to add yet a further ground of appeal. It is to the effect that the applicant cannot adequately prepare for the trial given that it has now emerged that a number of police officers conducted surveillance activities of a relevant kind on the date of the alleged offences. None of those witnesses it seems has thus far made a statement. As a result the applicant contends that he is prejudiced because he does not know what they will say.
22 The Crown informed the Court that arrangements are currently being made to obtain statements from those officers. Moreover, as the Crown points out, the contents of the surveillance logs are already available and so the applicant is on notice as to the general thrust of that evidence. It is pertinent to also observe that this matter received only cursory treatment by counsel for the applicant before the trial judge. Presumably, if it became necessary the evidence of those witnesses could be the subject of a Basha inquiry. For completeness, I might add that it is not suggested that that evidence is relevant to any of the preliminary issues that are currently being heard.
23 For those reasons, I am not persuaded that it has been demonstrated that the trial judge fell into error in respect of this aspect of the matter. Accordingly this Ground should also be rejected.
24 It is apparent from what I have said that there remain a number of issues that still require resolution before a jury can be empanelled in this matter. There is no reason why they cannot be attended to immediately. It also appears that the Court will be occupied with those issues for at least the balance of this week. That being so little, if any, time will be spent awaiting the return of Dr Fraser should her evidence in fact be required upon the voir dire.
25 In my view not only has no error of the relevant kind been established, but the trial judge was fully justified in progressing the matter to the stage which it has currently reached.
26 I propose that leave to appeal should be refused.
27 BROWNIE AJA: I agree.
28 LATHAM J: I also agree.
29 BROWNIE AJA: The order of the court is that leave to appeal is refused.
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