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Supreme Court 11 November 2013

R v Hadchiti (No 2)

[2013] NSWSC 1727

Homicide
CRIMINAL LAW PROCEDURE ADDRESSES FINAL ADDRESS OF COUNSEL FOR CROWN CHANGE IN COURSE PREJUDICIAL TO ACCUSED PARTIES TO CONSIDER HOW TO PROCEED

Citation: R v Hadchiti (No 2) [2013] NSWSC 1727
Court: Supreme Court of New South Wales
Date: 11 November 2013
Judge: Schmidt J

Background

The accused stood trial for the fatal stabbing of the victim, referred to in the judgment as Billy Mack. The Crown opened its case on the basis that the accused personally inflicted the fatal wound and that others assisted him in the attack at a property in Londonderry.

Consistent with this framing, the accused admitted to inflicting the fatal wound and gave evidence that he did so in self-defence during a struggle over a knife. His entire defence was constructed to meet the Crown case as it had been presented.

During closing address, the Crown shifted position. It submitted to the jury not only that the accused's evidence should be rejected, but also that the fatal wound may have been inflicted by someone assisting the accused rather than by the accused himself. This new theory had not been raised in the Crown's opening or in the case statement served on the accused.

  • Whether the Crown was entitled to advance, for the first time during closing address, a new theory that an associate of the accused (rather than the accused himself) may have inflicted the fatal wound
  • Whether that change in the Crown's case caused unfair prejudice to the accused
  • What remedies were available to the court in response to this procedural irregularity

Decision

Schmidt J found that the Crown's new theory constituted a material change in the case put against the accused. The accused had admitted inflicting the fatal wound and had structured his entire defence around a claim of self-defence in connection with that act. If the jury accepted the new Crown theory, his self-defence case would be entirely undermined, yet he had had no opportunity to address or respond to it.

Her Honour drew on the High Court's decision in King v R, where a new trial was ordered after the Crown introduced an accessory basis for liability for the first time during summing up. Schmidt J considered the present situation to be analogous. Introducing a new factual theory at the address stage, after the accused had closed his case, was capable of causing irreparable prejudice.

The court identified three potential courses of action for the parties to consider. First, the Crown could revisit its address and confine the case to the theory on which it had opened, namely that the accused personally inflicted the fatal wound with the assistance of others. Second, the jury could be discharged and a new trial ordered. Third, the Crown could continue its address as delivered, but only if the court considered that any prejudice to the accused was not irreparable, in which case directions to the jury would be required. Her Honour left the immediate choice of course to the Crown in the first instance.

Orders Made

No formal orders were made in this decision. The court directed the parties to consider how they wished to proceed, with the Crown to determine its position in the first instance.

Key Takeaways

  • The Supreme Court confirmed that introducing a fundamentally new factual theory against an accused for the first time during closing address can constitute unfair prejudice warranting a remedy, consistent with the principle in King v R.
  • Where an accused has structured their entire defence to meet a specific Crown case, a late change in theory is particularly prejudicial because the accused has had no opportunity to respond to the new case.
  • The decision affirms that courts retain a supervisory role over the manner in which the Crown puts its case, including at the address stage of a trial.
  • Three remedies were identified as potentially available: confining the Crown to its opened case, discharging the jury and ordering a new trial, or allowing the address to stand with appropriate jury directions (the last only where prejudice was found not to be irreparable).
  • The High Court's decision in King v R (1986) 161 CLR 423 continues to be applied at trial level to check against midstream expansions of the Crown's case theory.

Legislation and Cases Referenced

Cases:
- King v R [1986] HCA 59; (1986) 161 CLR 423 (High Court of Australia)

Legislation:
No specific legislation was cited in the judgment.