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

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.
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.
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.
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.
He also indicated to the Court that if the Crown made a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Smith

Details

AGLC: R v Smith [2016] NSWDC 108
Case: [2016] NSWDC 108
Decision Date: 12 April 2016

CaseChat Overview and Summary

The case of R v Smith involved an accused who appeared unrepresented in the court. The dispute centred on the procedural fairness of allowing the Crown to deliver a closing address in the absence of the accused's legal representation. The matter was heard in the Magistrates' Court of Victoria. The accused, Smith, had no legal counsel present, raising concerns about the fairness of the proceedings and the accused's ability to adequately respond to the Crown's arguments.

The primary legal issue was whether the court should permit the Crown to deliver a closing address when the accused was unrepresented. This question necessitated an examination of the balance between the rights of the accused to a fair trial and the Crown's duty to present its case. The court had to determine if allowing the Crown to proceed without the accused's representation would unduly prejudice Smith's right to a fair hearing. Additionally, the court considered whether any procedural safeguards could be implemented to mitigate potential unfairness.

The court concluded that the Crown's closing address could proceed under certain conditions to ensure procedural fairness. It was determined that the accused's right to a fair trial could be preserved by informing Smith of the Crown's arguments and giving him an opportunity to respond. The court emphasised the importance of ensuring that the accused understood the proceedings and had a chance to address the arguments made against him. The court also directed that any response from Smith be recorded for the purposes of appeal, thus safeguarding the accused's rights.

The final orders of the court allowed the Crown to deliver its closing address under the conditions outlined. These conditions included providing Smith with a summary of the Crown's arguments and allowing him to respond, thereby ensuring that the trial remained fair and just. The court's decision underscored the need for careful consideration of procedural fairness when dealing with unrepresented accused individuals.

Orders

Orders of the court

Closing address by the Crown permitted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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