R v Smith

[2016] NSWDC 108

District Court

New South Wales

Medium Neutral Citation:	R v Smith [2016] NSWDC 108
Hearing dates:	12/04/2106
Decision date:	12 April 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Closing address by the Crown permitted.
Catchwords:	Criminal - unrepresented accused, closing address by prosecution.
Cases Cited:	A v The Queen [2012] NTCCA 9 R v Turner (1977) 16 SASR 444 R v Zorad (1990) 19 NSWLR 91 R v Smith [1982] 2 NSWLR 605
Category:	Procedural and other rulings
Parties:	Crown (Cth) Andrew David Smith
Representation:	Counsel: Mr K Ginges – Crown (Cth) P Afshar, Amicus Curiae - Accused   Solicitors: Commonwealth Director of Public Prosecutions - Crown Self - Accused
File Number(s):	2014/12266

Judgment

- Application by Accused for Crown not to close to Jury; see transcript p 654

1. HIS HONOUR: The accused is currently unrepresented, but ably assisted by Mr Afshar who has assisted the Court and the accused as a friend of the Court since Monday morning. I express the Court’s gratitude for his assistance. The history of the matter is complex and it must be fairly said there is now a great deal of transcript, perhaps in excess of the transcript of the evidence produced, dealing with matters arising from the accused discontinuing the retainer of his counsel and the consequences of that leading to the current situation. I do not propose to recap that history.  It is set out in the transcript.

2. The issue I am concerned with at the moment is the issue as to whether I should exercise the discretion available to me to direct that the Crown does not address the jury in closing in this trial.

3. The trial has reached the point where the evidence is concluded, the jury has been sent away for the day so that some outstanding legal issues can be resolved including the matter which I am concerned.

4. The Crown Prosecutor has submitted that I should not exercise the discretion available to the Court. By reference to the principal decision in which I have been referred, R v Zorad (1990) 19 NSWLR 91, he concedes that the circumstances of the accused being unrepresented cannot be perceived as involving any attempt by the accused to obtain "tactical advantage." The Crown submitted in relation to the matter in general terms that there are a great many aspects of the evidence required to be brought to the jury's attention in order to understand the character of the Crown case. Whilst the jury had the benefit of the detailed opening address in which it sought to outline much of the detail anticipated to arise in the evidence, the Crown Prosecutor to the jury had foreshadowed that he would be making a "closing address." He submitted that in the evidence there is a body of technical evidence which needs to be explained in order to fully understand the Crown case and that would best be done by the Crown.

5. He also indicated to the Court that if the Crown made a closing address it would not be a "forceful" closing address. The Crown would obviously put arguments or matters to the jury in support of the Crown case. No doubt there would be comments about matters arising in the evidence that might be anticipated to be raised by the accused.  Although there is a danger in that course with an unrepresented accused if the accused in his address in due course did not raise those matters. The Crown submission was that I should not exercise the discretion discussed in Zorad.

6. Learned counsel here as a friend of the Court has provided to the Court what I shall call, for want of a better description, a "note", not to denigrate it. It is very useful seeking to assist the Court as to relevant issues. It sets out passages from the decision of Zorad. He relied upon particularly passages which may be found at the citation I earlier gave at pp 94D-95D. Mr Afshar also in oral submission took me to some other passages which I shall refer to in a moment. He also very helpfully noted in the note a recent decision of the Court of Criminal Appeal of the Northern Territory of A v The Queen [2012] NTCCA 9 and particular passages in that judgment. In the written notes the point is made from the decision of Zorad that the discretion exercise is to be undertaken having regard to the circumstances of the case and particularly in a way that "serves the interest of justice," taking into account the parties’ respective interests.

7. In the written document, learned counsel, if I may describe him as that although he is a friend of the Court, also said the Court was entitled to take into account the following matters, although not as an exhaustive list:

1. Whether the closing address by the Crown would have the effect of prejudicing the accused.

2. Whether there is any inference to be drawn that the accused has sought to obtain a tactical advantage by its decision to appear unrepresented.

3. Whether the judge and the jury are likely to be assisted by a closing address by the Crown given the nature of the issues involved and any factual or legal complications to which they give rise."

8. In the further submissions put for the accused, other matters are raised, including, as I said, a preceding passage in Zorad to that specifically quoted in the note. They include, the difficulties for the accused in "digesting" the Crown's address, and being able to respond to it. The point is made, although it is partly covered in the written note, that the accused's performance in making an address to the jury would be "compared" to what one would expect to be the professional address of an experienced barrister. It is doubted that the jury would necessarily be further assisted in the Crown's address than it would be by the summing up. It was also submitted, on the basis of some comments that I made, that the case was not a case of "great complexity", although there was evidence of a technical nature. Ultimately it was put that it was "not complex enough" not to exercise the discretion available.

9. It was submitted to the Court, amongst other matters that I have taken into account, that if the Crown made its closing address it would put great pressure on the accused to respond.

10. I do not propose to read onto the record, so to speak, in the judgment the various passages which appear at pp 94 and 95 of the judgment of Zorad, which have been relied upon either orally or in writing. From what I understand of the submissions made, and I did ask the Crown to assist me to further research this matter as well, what is said to be the situation in Zorad is still the situation in New South Wales. The judgment in Zorad identifies a couple of aspects of the matter that are worth noting in the context of the submissions that have been made.

11. Firstly, it was noted in the judgment that that trial was "made extremely difficult for the judge because of the decision by the appellant to appear unrepresented" for which no reasons were given by the Judge at trial appearing in the transcript. Although an invitation was extended by the Court of Criminal Appeal to his counsel on appeal to explain why the decision had been taken, no explanation was forthcoming. It was pointed out that Mr Zorad, unlike this accused as I would understand it, had a "long experience of the criminal justice system". Given the availability in 1990 of "almost universal legal aid at the trial stage", there was a clear inference that the accused had elected to dispense with legally aided professional representation in the trial, in the hope of obtaining “tactical advantages".

12. As I said, the Crown does not submit that the accused sought any tactical advantage. I note in relation to that matter as well that although the accused obviously was dissatisfied with his counsel he wanted to retain the solicitor who had instructed counsel. I ultimately granted her leave to withdraw, reluctantly I hasten to say.  But only on the basis that I was assured from what she told me that she could not provide the accused the service that would be necessary if someone was to represent him on the basis of her indicating to me that she did not have the confidence, the skill and/or the experience to conduct the case. I did note at the time, of course, that the solicitor on the record had not been in Court throughout the trial.  But her employed solicitor had. I understood that her employed solicitor was likewise, although present throughout the trial, not sufficiently skilled or experienced to conduct the case.

13. I must confess, speaking frankly, that having heard the further cross examination by the accused of Mr Chang, whose evidence in cross examination was interrupted if I can use that expression by the withdrawal of the retainer of the barrister who formerly represented the accused's interests, I cannot understand, ultimately, why the matters raised with Mr Chang could not have been raised by the counsel whose retainer was withdrawn. Or why they could not have been raised by a solicitor with rudimentary experience of the Court and its practices. I must say, the accused conducted his cross examination in a proper and focused fashion, in my view. Whether it has any effect on the issues in the case is a matter for the jury to decide, not me. But the point I make is that there was nothing really raised in cross examination of a complex technical nature that was beyond the capacity of the lawyers previously acting in the matter to understand.  Or which, it would appear to me, they were otherwise incapable of raising on behalf of the accused. Some of the matters raised by the accused on his own behalf seemed to me, not being the judge of the facts of course, to be of almost no moment whatsoever.

14. Be that as it may, I also pointed out that, whilst the case has not been made "extremely difficult" for me with the withdrawal of the legal representatives, it certainly has been made more difficult for me, and it has made it more difficult for the jury in a range of ways. There have been prolonged interruptions to the jury's attention on the case. These were proper interruptions I hasten to say. Frankly, I was caught unawares and I was endeavouring to find ways of keeping legal representatives in the case who had knowledge of the case to provide appropriate assistance to the accused.

15. To return to Zorad, in that decision reference was made to a Victorian decision from 1972 and a decision of Dr Bray, the Chief Justice of the South Australian Supreme Court, in R v Turner (1977) 16 SASR 444 at 446, which the judgment in Zorad suggested referred to a ‘rule’ or a ‘practice’ that the Crown was not permitted to address where the accused is unrepresented and that the trial judge had no discretion to relax that absolute rule.

16. New South Wales authority such as Smith [1982] 2 NSWLR 605 at 615 616 declined to follow that purported ‘rule’. It was said in Zorad that it was a practice in New South Wales whereby the Crown does not address in such circumstance, but it is not a rule of practice, still less is it a rule of law (Smith at 616, Zorad at 94).

17. The Court in Zorad saw no reason to depart from the Court's decision in Smith. It noted the reason for the belief there was such a rule, or such a practice. It noted however changed circumstances since that ‘practice’ existed. I note of course relevant to this matter that the accused had a grant of Legal Aid.  Not that that matters other than to show that he had a grant of legal assistance. I am mindful of the fact that his solicitor indicated that there was no reason for Legal Aid not to continue if the accused was able to obtain counsel to appear at short notice, or if the accused wished the matter to be delayed to enable counsel to be briefed.

18. I am very mindful of the fact, as is the accused, that there has been a totally unacceptable delay in dealing with this case. Its full history I do not know, although I am aware that one of the factors affecting the conduct of the current trial is that there are other proceedings relating to the accused that also are required to be prepared and be ready for presentation to Court. It appears to me, even in these times when there are concerns about delays occurring in this Court because of the weight of work and other factors, that for a person to have his trial start in March of 2016, having been arrested on 25 October 2013 is an entirely unacceptable situation. The accused himself has indicated at various points that he is very desirous of the case proceeding. He has not sought an adjournment of the trial which would inevitably require a discharge of the jury. He is very mindful of the fact that if this jury was discharged he would be required to wait some further time for his trial to proceed. I see no element in this matter of the accused seeking to delay justice being provided to him, the community and the prosecution.

19. There is no suggestion in this matter, as was referred to in Zorad, of a person dispensing with legally aided professional representation for some form of advantage. The Court in Zorad noted that an accused person should not suffer an added disadvantage because of his election to appear unrepresented. This is an election, if it is exercised at any particular time, that is a fundamental right that should not be interfered with. In Zorad the Court noted as at 1990, which is still the case in 2016, that the practice in New South Wales:

"...permits both the judge and the jury to have the assistance of an address from the Crown Prosecutor, particularly where the factual issues are complicated".

20. This is, as was pointed out in Smith the 1982 decision which I earlier cited:

" … a matter of fairness to the Crown and to the public on whose behalf it prosecutes, and those cases where the accused has elected to appear unrepresented whether or not in order to obtain technical advantages, such complication is more likely if only because of the way in which such a trial is inevitably conducted."

21. To come back to some of the matters that were raised on behalf of the accused.  Firstly, if I could deal with the issue of complication or complexity. It was said, I do not doubt it without looking at the transcript, that I had observed that it was not a case of "great complexity". But it is a case of complexity in two respects. The issue of "great complexity" in my view is a matter of degree. Having been a judge for 16 years, one develops experience of such matters in divining what is complex and what is not that may be beyond the experience of other people involved in particular cases.

22. The complexity here, putting aside the use of the adjectival "great," is, as I understand the Crown case, a great deal of detailed evidence relied upon by the prosecution purporting to show an interconnectedness between particular matters or information revealed in the forensic investigation of the accused's laptop which is required to detail to the jury in order to understand the purported "facts" or "circumstances" upon which the Crown relies in order to establish the inference of relevant knowledge and/or intention on the part of the accused.

23. Furthermore, there is a degree of evidence, although not a great amount, of expert character which, in my view, is beyond the experience of persons who otherwise may have familiarity with the use of laptop computers and programs and software commonly found on those laptops and computers. It is to be fairly said that part of the evidence of the Federal Agent in charge of the matter and the expert to a greater degree, centres upon the investigations that have been undertaken with software or programs which are beyond the usual types that are available for the general community.

24. It seems to me with respect that to invite the judge to draw together, for the purposes of what the Crown would argue to be the basis of finding a guilty verdict, all the relevant facts and circumstances in order for the jury to understand the Crown case, is asking a great deal of any judicial officer, including myself. It was argued as I earlier mentioned, on behalf of the accused that the case was "not complex enough" to warrant the exercise of the discretion required to prevent the Crown addressing.

25. With that assessment of the matter I disagree. With regard to other matters that were raised on behalf of the accused, particularly relating to the matters that were specifically identified that were said to have the potential of "prejudicing the accused" my view of the matter is that there are steps that can be taken to neutralise those matters.

26. Part of the background to this is that yesterday, at least, the Crown provided to myself and to Mr Smith and to the friend of the Court, a written outline of the particular matters he was proposing to refer to in his address. Thus, the usual difficulty of digesting the Prosecution's address by having to listen to an oral address without the benefit of any pre-written notes does not exist. I appreciate, of course, there may be matters in oral presentation that will be added to the written document or will refine matters referred to in the written document.  But in that regard the accused still has had and will have the benefit of that written document as a foundation.

27. Also, it is to be fairly said that a great deal of the matters referred to by the Crown, I would have thought, based upon evidence available to the Court, were within the experience and expertise of the accused in any event. Now, of course, it is not for me to judge the case.  But even putting aside the issue of the so called "hidden file" and the accused's knowledge of their existence in the computer, the evidence seems to fairly establish a familiarity by the accused with many aspects of the working of the Dell computer at the centre of the prosecution case and a connection directly with many of the folders or files which have been identified in the evidence from the exhibits that have been produced by the Crown.

28. The point was made that the accused would be unfavourably compared to the counsel for the Crown because he was a professional advocate. I believe that matter can be addressed by appropriate direction of the jury. With regard to the issue of the accused being placed under "greater pressure" by having to respond to the Crown's closing address, again, there are some aspects of the matter to be identified. I have already referred to the fact the Crown has provided a written outline of what he proposes to say. I have indicated that when the Crown finishes its address I would permit the accused to have time to consider matters that have arisen. I would even invite the accused to ask me, in the absence of the jury, of course, questions about matters he did not understand from the Crown's address. If the friend of the Court was still here I would invite the accused to speak to him to assist him, if needs be. It is to be fairly said that I am required to give the accused directions about the closing address, which I have not yet done, although I have provided directions in writing.

29. Ultimately, having taken into account all that has been put on behalf of the accused, and taking into account those matters in conjunction with the matters put by the Crown, and my understanding of the case from having presided over the trial up until this point, I have concluded that I should not exercise any discretion to prevent the Crown from exercising its right to address. There may be some matters in the Crown's outline that may need to be reconsidered by the Crown. I have noted what the Crown has said about not "forcefully" putting matters, by way of argument. It seems to me, with respect, the Crown, in the circumstances, ought to point to those matters that he relies upon to establish the guilt of the accused. It is entitled, in that context, to refer to matters that it anticipates may arise from the evidence as relevant to the drawing of the inference sought to be drawn by the Crown, but favourable to the position of the accused. The Crown would have to avoid, in any form whatsoever, putting to the jury submissions that are expressed as "anticipating" any argument that might be put by the accused. The arguments put by the Crown would need to be put as simply references to the evidence and comments made without seeking to suggest that they are matters that there will be, or may be, or could be, advanced by the accused in his closing address.

21. Thus, in the circumstances of the matter, I will permit the Crown to give a closing address.

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Decision last updated: 16 June 2016