R v Tembeleski

[2024] NSWDC 503

District Court

New South Wales

Medium Neutral Citation:

R v Tembeleski [2024] NSWDC 503

Hearing dates:

24 September 2024
26 September 2024
30 September 2024
1 October 2024
2 October 2024
3 October 2024
8 October 2024
9 October 2024
10 October 2024
14 October 2024

Date of orders:

10 October 2024

Decision date:

10 October 2024

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

I do not give the jury any instruction as to further alternative counts as would be available under s 115A in other circumstances at this time.

Catchwords:

CRIMINAL PROCEDURE — Trial — Alternative verdict

CRIMINAL PROCEDURE — Trial — Directions to jury

Legislation Cited:

Crimes Act 1900 (NSW), ss 111(3), 112(3), 115A

Cases Cited:

GM v R [2017] NSWCCA 298

James v The Queen (2014) 253 CLR 475; [2014] HCA 6

R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338

Category:

Procedural rulings

Parties:

Rex (Crown)
Jason Tembeleski (Accused)

Representation:

Counsel:
Mr Will Tuckey (Crown)
Ms Leah Rowan (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Australian Criminal Law Group (Accused)

File Number(s):

2023/00062145

Judgment

1. This is Voir Dire 9, Ex Tempore judgment, application of s 115A, Crimes Act 1900 (NSW) (‘Crimes Act’).

2. The Accused stands indicted upon 1 count pursuant to s 112(3) and, in the alternative, 1 count pursuant to s 111(3) Crimes Act. Each of those counts fall within the parameters of s 115A Crimes Act, which section provides a statutory framework for alternative verdicts pursuant to that Act. The Crown opened to the jury on 2 October 2024; today is 10 October 2024. When the Crown, opened no reference was made to reliance on s 115A in the sense that the Crown did not open on alternative counts or possible alternative verdicts other than is provided for in the Indictment.

3. On 8 October 2024, the parties raised for the first time in the trial that s 115A was a consideration. It should be understood that, between 2 October 2024 and 8 October 2024, the trial had not proceeded far in its evidence. This is because much time has been taken up with Basha inquiries of other potential witnesses and, indeed, with the obtaining of their attendances in the Court. On 9 October 2024, I invited the parties to revisit the issue, particularly with reference to the trial judge’s duty which I bear to secure a fair trial, not bound by, but bearing in mind, the informed forensic choices made by counsel for the parties: James v The Queen (2014) 253 CLR 475 at [38], followed in this state, GM v R [2017] NSWCCA 298 at [133].

4. The point which I made at that time was that at this early stage of the trial, I, as trial judge, cannot know what evidence is to come, and therefore rely on the assistance of counsel as to whether or not a fair trial is likely to require instruction to the jury of the availability of alternative verdicts in accordance with s 115A of the Crimes Act.

5. I invited the parties to deliver short written submissions on the point so that I might make a determination today, as I now do ex tempore, as to how the trial should proceed in regard to this issue. Submissions for the Crown will be marked MFI 10. Submissions for the Accused will be marked MFI 11. I am grateful for the assistance provided by counsel in those written submissions received this morning. There is a courage to be recognised in the professional expertise of lawyers at the bar table openly and fairly committing to the forensic choices they have made on behalf of their client.

6. In James v R, at para 38, it is provided:

“The trial judge’s duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court’s assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel.”

7. Guidance was generally provided in R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338, which I quote from the Crown’s written submission:

“While it is generally inadvisable for a trial judge to raise an alternative count, which has not been suggested by trial counsel… (authority cited), it is not forbidden. Much will depend upon the timing, whether counsel have had a proper opportunity to deal with it, and whether the defence has been prejudiced, for example in the way that the case was conducted… (authority cited).”

8. To this point, and specifically in regard to this issue, neither party has raised with the Court a failure of the other to disclose, therefore I consider this issue on the assumption that counsel are well placed to come to the forensic decisions they make. In the Defence written submission, that forensic decision is clearly stated in the following terms:

“In the present matter, a forensic decision has been made on behalf of the Accused not to rely upon or seek that the Jury be directed as to the statutory alternatives. The Trial has been prepared and conducted to date to meet the Offences on the Indictment.

Full consideration has been given to s 115A, and any benefit (or detriment) to the Accused if the jury is not directed as to the alternatives set out therein and it is the Defence position that the Jury not be directed as to all of the alternatives for which s 115A provides.”

9. I understand use of the word “all” to convey that the Defence mean all alternatives which might otherwise be available by application of the section.

10. It is relevant that the Defence did not open. This is because the authorities indicate that if the jury is to be instructed of further alternatives to the one presently stated, being the second count in the indictment, that instruction be given at the earliest time and, unless unavoidable, it should be given before the close of the Crown case. By not opening, the Defence stands to challenge the Crown case as called, and the Crown’s written submission conveys that it is understood that the Defence completely denies involvement in the criminal activity.

11. The consequence being that at this stage of the trial there is not an observed or understood need for further alternative verdicts to be considered or directed. Crown then properly repeats the caution: “but that possibility cannot be excluded depending on the conduct of the balance of the trial”. Each party has had the opportunity to consider the written submission of the other. No challenge has been made to that statement of the position I just referred to from the Crown’s submission. The parties declined the opportunity for oral argument.

12. I bear in mind also that it is not available to the Court to know what the evidence in the case to be called will be. Basha inquiries of persons who I understand to be potential witnesses might be fairly summarised to have revealed that each of them claims little recollection of the relevant events. This is so even for those who have pleaded guilty to charges arising out of the general alleged events. It is apparent to me, from the questions asked of them in the Basha inquiries and from the original indictment dated 20 September 2024 (which is not before the jury), that they are, on the Crown case, said to have been in the company of the Accused in the course of the relevant events on 26 and 27 October 2022. The case, of course, proceeds on the amended indictment dated 2 October 2024.

13. I am not informed, therefore to that extent, of the content of what is to come in the Crown case, and therefore I am not in a position to determine, other than is promoted by the parties’ written submissions, that there is anythingnothing which should give me, as trial judge, a concern for the security of a fair trial at this stage.

14. For these reasons, and applying the principle set out in James quoted above and the general practice in Gulliford, also quoted, my determination is that I do not give the jury any instruction as to further alternative counts as would be available under s 115A in other circumstances, at this time.

15. I invite the parties to revisit this issue at any time in accordance with their forensic decision-making. Should they do so, a further determination will be made. I require the parties, before the close of the Crown case and, if appropriate, before closing addresses, to revisit this issue, should their forensic choices have changed. Obviously, I am concerned not to intrude on either party’s full forensic opportunity. In coming to this decision, I do observe that whilst my decision is informed by the parties’ forensic choices, I cannot and do not relinquish my responsibility for securing a fair trial.

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Decision last updated: 28 October 2024