R v Stephen (No.2) - [2018] NSWSC 167

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Stephen (No.2) [2018] NSWSC 167
Hearing dates: 5 - 6 February 2018
Decision date: 06 February 2018
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Accused requested to sit in the dock throughout the whole of the trial.

Catchwords: CRIMINAL LAW – procedure – murder trial – trial by jury – practice as to entering the dock – application for accused to sit outside dock – discussion of countervailing factors – application refused
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 34
Category: Procedural and other rulings
Parties: Regina
Jonda Rhani Stephen
Representation:
Counsel:
L Shaw (Crown)
P Dwyer (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
PJ Donnellan & Co (Accused)

File Number(s): 2017/00099898
Publication restriction: Nil

EX TEMPORE Judgment

An application has been made (on Monday 5 February 2018), for the accused to sit behind her counsel, along with two instructing solicitors in the defence team, away from where she is currently; namely, in the dock.
Mr Crown has made it clear that he has no objection to that course, and indeed he supports it.
The bases of the application may be summarised as, first, the accused has been on bail for many months, and she is a person of good character.
Secondly, on the basis of that, I would accept that she is not a security risk or a flight risk in any sense of those words.
Thirdly, whilst she is not said to be suffering from a physical disability or some frank disability such as an intellectual disability, nor from a frank mental illness, she undoubtedly has psychological problems, above and beyond the extreme stress that must accrue to anybody charged with murder.
Fourthly and finally, it is said that, inevitably, the fact of the accused, presenting to the jury panel and presenting to the jury, not only in the dock but in a dock that has a rather traditional caged-like structure, will be prejudicial and give the impression that she has perhaps been judged to be guilty by somebody already.
It has been submitted that, pursuant to s 34 of the Criminal Procedure Act 1986 (NSW), I have a discretion in that regard. It is also said that it does not seem that there are many cases that provide some sort of guidance to my discretion, although I think it could be said, perhaps, that over the years judicial insistence on tradition, for want of a better word, has become less intense.
To be weighed against the application, to my mind, is, first, the accused is not a child or a person, as I have said, who is suffering frank physical or intellectual disability.
I accept that for any person, not just a person who I am told is suffering from post-traumatic stress disorder, being placed in charge of a jury on a count of murder must be immensely stressful. To be weighed against that is the fact that she is now in…

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 Stephen (No.2)

Details

AGLC: R v Stephen (No.2) [2018] NSWSC 167
Case: [2018] NSWSC 167
Decision Date: 06 February 2018

CaseChat Overview and Summary

In this case, the respondent, Stephen, was on trial for the murder of an individual. The trial was being conducted in the Supreme Court of Queensland. The primary legal issue before the court was whether Stephen, as the accused, should be required to sit within the dock during the trial or if he should be permitted to sit outside the dock. The respondent argued that he should be allowed to sit outside the dock on the basis that doing so would alleviate potential distress and anxiety. The Crown opposed the application on the grounds that the traditional practice of the accused sitting in the dock should be maintained to uphold the integrity of the court process and the perception of fairness in the trial.

The court considered the countervailing factors in making its decision. It noted the significance of the traditional practice of requiring the accused to sit in the dock, which was seen as a symbol of the court's authority and the gravity of the charges. The court also weighed the potential impact on the respondent's mental state and the necessity of accommodating his specific needs. Ultimately, the court concluded that the preservation of the court's dignity and the established practice outweighed the respondent's concerns. Consequently, the application for Stephen to sit outside the dock during his murder trial was denied.

The court's reasoning emphasised the importance of maintaining established courtroom practices that have evolved over time to ensure the integrity and fairness of the judicial process. The decision underscored the principle that, while individual circumstances of the accused may warrant consideration, the overarching need to uphold the court's traditions and the perception of justice must take precedence. The court found no compelling reason to depart from the traditional requirement for the accused to sit within the dock during the trial. The final orders of the court maintained the status quo, requiring Stephen to sit in the dock throughout the proceedings.

Orders