R v Stewart (No 2)

[2022] NSWDC 206

District Court

New South Wales

Medium Neutral Citation:	R v Stewart (No 2) [2022] NSWDC 206
Hearing dates:	02 June 2022
Date of orders:	02 June 2022
Decision date:	02 June 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	The reasons for my decision announced this morning have not changed and I rely upon those for the purposes of my decision
Catchwords:	COURTS AND JUDGES — Jurisdiction — District Court
Category:	Principal judgment
Parties:	Regina (Crown) Kieran Stewart (offender)
Representation:	Jason Lee (Solicitor for the Crown) Daniel Thomas (Solicitor for the offender) Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT
File Number(s):	2021/00149276

REVISED EX TEMPORE JUDGEMENT

Introduction

1. This morning, 2 June 2022, I delivered a judgement and announced the conviction of the offender and imposed a sentence upon the offender after the matter was presented to me yesterday, 1 June 2022, including the tender of documents and the presentation of evidence from the offender, his cross-examination, and then oral submissions speaking to written submissions previously provided.

The Flawed Proceedings on Sentence

2. The offender was sentenced to a term of imprisonment and after I adjourned, to resume a trial in which I am presiding, my associate realised that there was no record on JusticeLink of the accused having ever been arraigned in the District Court. The matter was called over before the Chief Judge some time earlier this year and the matter, according to the note made, was adjourned until 23 May 2022 for arraignment. I mistakenly believed that the arraignment had taken place. In fact, it had not and thus having not taken place the Court had no jurisdiction to continue with the hearing, notwithstanding the work that had been completed by this morning.

The Proposed Continuation of the Proceedings

3. Upon realising the omission I reconvened the Court and the accused was arraigned when he appeared via AVL and he pleaded guilty to the charge of robbery in company. I stood the matter down thereafter for Mr Thomas, who represented the accused, to contact him to give him advice and take instructions and allow the Crown to consider what steps ought next to be taken.

4. Upon reflection it would seem to me that the course available now is for the parties, if they wish, to tender the material that was presented during the hearing yesterday, on 1 June 2022. The material would be marked as an exhibit in the proceedings now. The material tendered could include the written submissions. The parties could also tender, if they wish to do so, the oral submissions speaking to their written submissions, adding to them where they have done so, and if the offender chose to do so he could tender the evidence that was adduced viva voce on 1 June 2022, together with the cross‑examination by the Crown.

5. My next step would then be to formally convict the offender and impose a sentence in identical terms upon the reasons that I delivered ex tempore this morning. My next step in this process would be to have my ex tempore judgement provided by the Reporting Services Branch. I’ll perfect it for the purposes of publication and I will attach to it the transcript of proceedings and copies of the exhibited material, to comprise one bundle to be included on the Court file.

6. The reasons for my decision announced this morning have not changed; and I would simply rely upon those for the purposes of my decision to be announced.

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Decision last updated: 09 June 2022