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District Court 25 June 2008

R v Maunder

[2008] NSWDC 108

Assault & violenceTheft & property
CRIMINAL PROCEDURE TRIAL APPLICATION TO ADDUCE ALIBI EVIDENCE S 150 CRIMINAL PROCEDURE ACT 1986 (NSW) NOTICE OF ALIBI NOTICE GIVEN ON DAY OF TRIAL

Citation: R v Maunder [2008] NSWDC 108
Court: District Court of New South Wales
Date: 25 June 2008
Judge(s): Bennett SC DCJ

Background

The accused faced two counts on indictment: breaking and entering a dwelling with intent to commit a serious indictable offence, and wounding whilst in company, both allegedly committed on 30 November 2006 at Tamworth. He had been committed for trial from the Local Court in March 2008, with the trial listed to commence on 10 June 2008. At the committal stage, his solicitor had already cross-examined the Crown's key witness on her recollection of the date of the offence, signalling that the timing of events was a live issue.

The trial commenced, a jury was empanelled and the judge delivered opening instructions. Shortly after resuming on the second day, the Crown disclosed that it had just received a document purporting to be a notice of alibi, served that same morning. The notice was deficient in particulars and had been served well outside the prescribed statutory period.

The court then heard argument over whether alibi evidence should be admitted at all, and if so, on what terms. Both the adequacy of the notice and the resulting prejudice to the Crown were central to the application.

  • Whether the alibi notice served on the day of trial complied with the requirements of s 150 of the Criminal Procedure Act 1986 (NSW), including the prescribed period and the particulars required
  • Whether the court should grant leave to adduce alibi evidence despite non-compliance with s 150
  • Whether, if leave were granted, the trial could continue in its current sittings given the Crown's need to investigate the alibi
  • Whether the jury should be discharged and the trial vacated from the current sittings

Decision

Section 150 of the Criminal Procedure Act 1986 requires that an accused give written notice of alibi particulars to the Director of Public Prosecutions no later than 42 days before the trial is listed for hearing. The accused's notice failed in multiple respects: it was served on the day the trial began, long after that deadline, and it did not contain the particulars the section requires. The court found that the accused's solicitor must have had firm instructions about the alibi well before trial, particularly given the nature of the cross-examination conducted at committal.

Bennett SC DCJ accepted that the solicitor's decision not to serve timely notice was not motivated by any intent to disadvantage the Crown or circumvent the statutory scheme. Nonetheless, the decision was characterised as ill-advised and its consequences as unacceptable. The court considered refusing leave altogether, acknowledging that a refusal would have been open, but concluded that the interests of justice favoured permitting the accused to present the alibi evidence, provided the Crown first had a proper opportunity to investigate it.

Both counsel agreed that the Crown's necessary investigations could not be completed within the remaining time allocated to the current Tamworth sittings. Continuing the trial with the jury in place while those inquiries were conducted was not a viable option. The court therefore discharged the jury and vacated the trial from the current sittings, standing the matter over for callover to fix a new trial date.

The judgment recorded pointed criticism of the failure to comply with s 150, noting the tangible costs: jurors summoned and detained only to be sent away on the second day, disruption to the court's workload, delay for other litigants, and inconvenience to Crown witnesses. The court also imposed bail conditions on the accused, including a condition prohibiting contact with Crown witnesses.

Orders Made

  • Alibi evidence permitted, subject to the Crown being given proper opportunity to investigate
  • Jury discharged
  • Trial vacated from the current Tamworth sittings
  • Matter stood over for callover on 25 June 2008 to appoint a new trial date
  • Accused required to submit to bail
  • Bail condition imposed: no direct or indirect contact with any Crown witness, except the accused's partner Rianah Cook

Key Takeaways

  • Under s 150 of the Criminal Procedure Act 1986 (NSW), alibi notice must be served on the DPP and filed with the court no later than 42 days before the listed trial date; notice served on the day of trial plainly fails this requirement.
  • Deficient alibi notice does not automatically result in exclusion of the evidence. The District Court retained a discretion to grant leave, and exercised it in favour of the accused in the interests of justice, even while condemning the non-compliance in strong terms.
  • The grant of leave did not mean the Crown was denied its statutory entitlement to investigate the alibi. Where the investigation cannot be completed within the existing trial window, discharging the jury and vacating the trial may be the only workable response.
  • Absence of improper motive on the part of defence representatives is relevant to the exercise of discretion, but does not excuse non-compliance or its consequences for the court, jurors, witnesses, and other litigants.
  • The decision illustrates the broader community costs of late alibi notices: jurors are inconvenienced, court resources are wasted, and other litigants face collateral delay.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 150 (alibi notice requirements)
- Crimes Act 1900 (NSW), ss 35(2) (wounding whilst in company) and 111(2) (breaking and entering with intent in circumstances of aggravation)

Cases:
- Cooper v R (1979) 69 Cr App Rep 229
- Skondin v R [2005] NSWCCA 417