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

1. 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.

2. Mr Crown has made it clear that he has no objection to that course, and indeed he supports it.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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 very close proximity to her legal team, and indeed one of her solicitors is sitting virtually next to her.

10. Secondly, it is very common for a person on bail, when placed before the jury panel and arraigned on a serious count, to be in the dock nevertheless.

11. Thirdly, I consider that the dock is the traditional symbol of what is at stake, and it is part of the traditional means of impressing on the community in general, and the jury in particular, the gravity of the proceedings, as opposed to proceedings in the Local Court or civil proceedings.

12. Fourthly and separately, logistically there is no great inconvenience in the accused being in the dock, and of course she can have a cup of water with her at all times, supplied by her solicitor.

13. Fifthly, apart from that, I do not consider that the accused being there, in a murder trial in a traditional courtroom, will be unduly prejudicial to her in the minds of the jury. Indeed, in terms of the architecture of this courtroom, I think that that is precisely where the jury would expect a person charged with that offence to be. Indeed, I think it is possible that her location could engender sympathy on the part of the jury.

14. Sixthly, as well as that, the objective fact is that she is charged with the most serious charge known to law, except perhaps treason.

15. In my view, there is nothing exceptional about this matter, individually or in combination, and there is no need to depart from the usual approach.

16. Accordingly, I exercise my discretion to request the accused to remain in the dock throughout the entirety of the trial.

[FURTHER SUBMISSIONS RECEIVED ON 6 FEBRUARY 2018]

17. I do not propose to alter my previous ruling about where the accused should sit throughout the trial.

18. Whilst I accept that the accused suffers from various psychological issues, not least Post Traumatic Stress Disorder, anxiety and depression, about which more detailed evidence has been placed before me today, I remain of the view, for the reasons previously expressed, that it is appropriate for her to remain where the jury would, in light of the interior design of this courtroom, undoubtedly expect her to be.

19. Separately, even factoring in that a recorded interview will be played in the Crown case that shows the accused in custody and handcuffed, I am soundly of the view that the location of the accused in the dock will not cause the jury to be significantly prejudiced against her, in light of the fulsome directions against any such prejudice - and indeed any other prejudice, on any other basis - that I have foreshadowed that I will give, in my discussions with counsel.

20. Nor do I believe that ergonomic considerations carry great weight.

21. In short, I exercise my discretion to request that the accused sit in the dock throughout the whole of the trial.

**********

Amendments

26 February 2018 - Change Judgment to Ex Tempore Judgment.