Citation: R v Patrick Michael Sheehan [2005] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 18 July 2005
Judge(s): Buddin J, Brownie AJA, Latham J
Background
The applicant faced charges in the District Court of knowingly taking part in the sale and possession of a number of firearms, with the alleged offences dating back to September 2001. The Crown's case relied substantially on intercepted telephone conversations and evidence gathered during a search warrant, with five co-accused having already pleaded guilty and been sentenced.
The Crown applied to adjourn the four-week trial, which had been fixed to commence on 11 July 2005, on two grounds. The first concerned the sudden illness of a Crown witness, which was resolved when the applicant offered to make an admission as to that witness's evidence. The second concerned the unavailability of a linguistics expert, Dr Fraser, who was scheduled to present a paper at a conference in South Korea between 15 and 25 July 2005.
The trial judge refused the adjournment and directed that proceedings begin with the hearing of preliminary admissibility issues, noting that her decision could be revisited if circumstances changed. Those preliminary matters included challenges to the admissibility of a police officer's identification evidence and the lawfulness of the search warrant. The applicant sought leave to appeal that refusal under section 5F of the Criminal Appeal Act.
Legal Issues
- Whether the District Court judge erred in the exercise of her discretion by refusing to adjourn the trial in circumstances where a key Crown witness was temporarily unavailable.
- Whether the applicant was prejudiced by the refusal to adjourn given the foreshadowed admissibility challenges and the applicant's claimed risk of financial hardship during any interruption to proceedings.
- Whether a further ground of appeal could be added on the basis that police surveillance officers had not yet provided witness statements, leaving the applicant unable to adequately prepare.
Decision
The Court of Criminal Appeal confirmed that refusal of an adjournment involves the exercise of a discretion and applied the well-established principles from House v The King, which require a clear error before an appellate court will interfere. The Court noted that such a discretion will not be lightly disturbed.
On the unavailability of Dr Fraser, the Court accepted that by the time of the appeal the preliminary issues already under way were sufficiently time-consuming that little or no delay would actually arise from awaiting her return. Critically, Dr Fraser's evidence was not directly relevant to the search warrant voir dire that was occupying the court at the time. The interruption that had concerned the applicant was therefore unlikely to materialise to any significant degree.
On the claim of financial embarrassment, the Court noted that this was raised only from the bar table without any supporting evidence. That submission was given little weight. The Court also noted that the trial judge had flagged that her decision could be revisited at any stage, which the Court regarded as a proper and flexible approach.
Regarding the additional ground concerning police surveillance officers who had not yet made statements, the Court observed that the contents of the surveillance logs were already available to the applicant and that the matter had received only cursory attention before the trial judge. The Court noted that if necessary, those witnesses could be the subject of a Basha inquiry (a procedure that allows a defendant to cross-examine prospective witnesses before trial to assess the Crown's case). No error was established on this ground either.
Orders Made
- Leave to appeal refused.
Key Takeaways
- A refusal to adjourn a criminal trial is a discretionary decision and appellate courts will not intervene unless a clear error of principle is demonstrated, applying the principles in House v The King.
- The Court of Criminal Appeal confirmed that the orderly progression of criminal proceedings is a legitimate consideration to weigh against an accused's interest in having all witnesses immediately available.
- Where a witness's unavailability is temporary and the court can productively hear other matters in the interim, the overall prejudice to an accused may be insufficient to justify intervention on appeal.
- Unsworn submissions from the bar table, without supporting evidence, carry little weight when an accused seeks to demonstrate material prejudice flowing from a refusal to adjourn.
- The availability of a Basha inquiry was identified as a mechanism capable of addressing the prejudice arising from police witnesses who had not yet provided statements, further undermining the basis for the additional ground of appeal.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act (NSW), s 5F
Cases
- House v The King (1936) 55 CLR 499
- Murphy v The Queen (1988-89) 167 CLR 94
- R v Alexandroaia (1995) 81 A Crim R 286
- Thornberry v The Queen (1995) 69 ALJR 777