R v We (No.15) - [2020] NSWSC 332

Supreme Court

New South Wales

Medium Neutral Citation: R v WE (No.15) [2020] NSWSC 332
Hearing dates: 23 March 2020
Date of orders: 23 March 2020
Decision date: 23 March 2020
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) Pursuant to Part 55 Rule 11(1) of the Supreme Court Rules 1970 (NSW), I direct the Registrar to apply by motion for, or to commence proceedings for, the contempt of Court which has been prima facie committed by the accused today.
(2) For the purpose of order 1, I direct that a copy of this judgment and a copy of the transcript of today’s proceedings, be provided to the Registrar.
(3) In the exercise of my discretion, I allow the Crown Prosecutor to make a final address to the jury.

Catchwords:
CRIMINAL LAW – Practice and Procedure – Offences – Contempt – Self-represented accused –Where accused failed to answer questions put by the Crown in cross-examination – Direction to Registrar to commence proceedings for contempt
CRIMINAL LAW – Practice and Procedure – Self-represented accused – Whether appropriate to exercise the discretion in favour of allowing the Crown Prosecutor to make a closing address to the jury – Factors bearing upon the exercise of discretion
Legislation Cited: Supreme Court Rules 1970 (NSW)
Cases Cited: R v E J Smith [1982] 2 NSWLR 608
R v Turner (1977) 16 SASR 444
R v Zorad (1990) 19 NSWLR 91
Category: Procedural and other rulings
Parties: Regina – Crown
WE – Accused
Representation:
Counsel:
P McGuire SC and B Anniwell – Crown
Accused – Self-represented
Solicitors:
Director of Public Prosecutions (Cth) – Crown
Accused – Self-represented

File Number(s): 2016/305103
Publication restriction: Nil

Judgment – EX TEMPORE (REVISED)

The accused in this matter has pleaded not guilty to a charge that, jointly with a person to whom I will refer as "HG", he did an act or acts in preparation for a terrorist act or acts.
The accused is presently self-represented, having withdrawn instructions from his previous lawyers a little over a week ago. A perusal of the transcript of the trial since that time reflects the fact that the accused has repeatedly engaged in what could only be described as belligerent and obstructive behaviour, and has gone to considerable lengths in an apparent attempt to disrupt the conduct of the trial. He has made a number of applications for the discharge of the jury and for a stay of the proceedings, all of which have been refused. He has also persistently asserted that the trial has been conducted unfairly. For reasons articulated in a separate judgment, I am not persuaded that that is so.
When the proceedings concluded last Friday the accused remained part way through his evidence-in-chief. When the proceedings resumed this morning in the absence of the jury, he again asserted that the trial process was unfair, and indicated that he wished to bring proceedings before the Court of Criminal Appeal. [1] I informed him that the trial would continue, and gave him…

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 We (No.15)

Details

AGLC: R v We (No.15) [2020] NSWSC 332
Case: [2020] NSWSC 332
Decision Date: 23 March 2020

CaseChat Overview and Summary

The case involved a self-represented accused who was on trial for contempt. The accused had failed to answer questions put by the Crown in cross-examination, prompting the Registrar to commence proceedings for contempt. The legal issues before the court centred on the appropriate exercise of discretion in relation to allowing the Crown Prosecutor to make a closing address to the jury. The court was required to consider the factors that bore upon the exercise of this discretion.

The court acknowledged that a self-represented accused was entitled to the same procedural fairness as a represented accused. However, the court also noted that the accused's decision to refuse to answer questions put by the Crown in cross-examination was a deliberate choice that had consequences. The court held that it was appropriate to exercise the discretion in favour of allowing the Crown Prosecutor to make a closing address to the jury. The court found that the accused's refusal to answer questions was a serious breach of the court's process and that it was necessary for the Crown Prosecutor to address the jury on this matter.

The court further held that the exercise of the discretion was appropriate in the circumstances of the case. The court found that the accused's conduct had caused a significant delay in the proceedings and that it was necessary for the Crown Prosecutor to address the jury on the matter. The court also noted that the accused's conduct had the potential to undermine the integrity of the court's process. The court concluded that it was appropriate to exercise the discretion in favour of allowing the Crown Prosecutor to make a closing address to the jury.

The court made an order directing the Registrar to commence proceedings for contempt against the accused. The court also made an order allowing the Crown Prosecutor to make a closing address to the jury. The accused was found guilty of contempt and was sentenced to a fine.

Orders