Citation: R v Mohammad Al-SAYAHEEN [2009] NSWDC 222
Court: District Court of New South Wales
Date: 20 August 2009
Judge(s): Berman SC DCJ
Background
The accused faced serious charges of sexually assaulting an intoxicated German tourist at an apartment he shared with another man. The trial commenced on 17 August 2009, with the jury empanelled and both Crown and defence counsel opening their cases. Defence counsel told the jury that his client would give evidence and would concede that statements made to police in a recorded interview were false.
The Crown's first witness had completed her evidence-in-chief and was partway through cross-examination when, the following morning, the accused failed to appear at court. He had been on bail on condition that he attend accompanied by his legal representatives, but he did not meet them as arranged.
Enquiries revealed that at the end of the first day of trial, the accused had told an interpreter that friends had offered to help him leave the country. The court also heard that the address he had provided to police did not appear to exist, that his bail surety had been funded by his parents in Jordan, that he was not an Australian citizen, and that his Australian visa had been cancelled. The court was satisfied on the evidence that the accused had voluntarily absconded.
Legal Issues
- Whether a court retains a discretion to continue a criminal trial after an accused voluntarily absconds while on bail
- Whether the accused, by absconding, had waived his right to be present at his trial
- How that discretion should be exercised in the particular circumstances of this case, balancing the interests of the complainant, the accused, and the administration of justice
Decision
The court confirmed that it retained a discretion to either continue the trial in the accused's absence or discharge the jury, citing the established authority of R v McHardie and Danielson and subsequent decisions. It was satisfied that the accused had voluntarily absconded and, in doing so, had waived his right to be present during the trial proceedings.
The court's initial inclination was to let the trial continue. Significant factors pointed in that direction: the accused should not be permitted to control proceedings by simply failing to appear; the complainant had overcome a fear of flying to travel from Germany to give evidence; a Crown witness had flown from Perth; and, because the complainant's evidence was incomplete, any recording of her testimony could not be used in a future trial, meaning she would have to give evidence again.
Against those considerations, two factors proved decisive. First, the defence opening had no status as evidence, and the jury would have been directed to disregard it. That would have left the accused's only live explanation as the version he gave police, a version that defence counsel had already conceded was untrue and which, in light of the evidence, was bound to fail. It was not in the interests of justice to proceed on that basis. Second, the trial had been running for only one day when the accused disappeared. Had he absconded even twenty-four hours earlier, the trial could not have started at all.
Weighing all of these factors, the court concluded with reluctance that the interests of justice required the jury to be discharged and a fresh trial to commence once the accused was located. It acknowledged that this outcome would cause the complainant further inconvenience and distress, and recognised the irony that discharging the jury might appear to reward the accused's conduct. Nonetheless, a calm assessment of the competing considerations pointed clearly toward that result.
Orders Made
- The trial was stopped and the jury was discharged.
Key Takeaways
- A court retains a discretion under established common law principles to continue or discontinue a criminal trial where an accused voluntarily absconds during proceedings, and voluntary absconding constitutes a waiver of the right to be present at trial.
- In exercising that discretion, the stage at which the accused absconded carries significant weight. The District Court treated the fact that the trial had run for only one day as a substantial factor favouring discharge, noting that an earlier disappearance would have prevented the trial from commencing at all.
- Where a defence opening has been delivered but no defence evidence is in, the jury would be directed to disregard that opening entirely. Proceeding to verdict in those circumstances, with an explanation already conceded to be false standing as the only live defence, was found to be contrary to the interests of justice.
- The interests of complainants and other witnesses, including the hardship of repeat appearances and the unavailability of recorded evidence for future proceedings, are proper considerations in this discretionary exercise, even where they do not ultimately prevail.
- An accused cannot dictate the course of proceedings by absconding, but the court made clear that the discretion must be exercised by reference to the interests of justice as a whole, not simply as a sanction for the accused's conduct.
Legislation and Cases Referenced
Cases Cited:
- R v McHardie and Danielson [1983] 2 NSWLR 733
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Serrano [2007] VSC 209
- R v Jones (1998) 72 SASR 281
Legislation: No specific legislation was cited in the decision.