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Supreme Court 1 July 2014

R v Hunter (No 4)

[2014] NSWSC 1147

Homicide
CRIMINAL LAW JOINT APPLICATION FOR AN ADJOURNMENT SUBPOENAED WITNESS NOT PRESENT BENCH WARRANT ISSUED

Citation: R v Hunter (No 4) [2014] NSWSC 1147
Court: Supreme Court of New South Wales
Date: 1 July 2014
Judge: Button J

Background

The accused faced a serious criminal charge involving an alleged assault with a metal pole. A key witness, listed on the Crown's proposed witness list, had previously given evidence at the committal proceedings that he saw the accused strike a man to the head with a metal pole. His prior statements were described as equivocal, but his most recent evidence was inculpatory.

The witness failed to appear at court in answer to a subpoena, prompting Button J to issue a bench warrant for his arrest. On the same day, two attempts to empanel a jury were unsuccessful: the first was abandoned due to a duplication error in jury cards, and the second ended when a juror indicated in writing that they were emotionally incapable of continuing.

The trial had accumulated a significant history of delays. The alleged offence had occurred more than three years earlier, the matter had been before the Supreme Court for 16 months, and a previous application to vacate the trial date had already been refused. Button J stood the empanelment over for two days to allow admissibility disputes to be explored.

  • Whether the trial should be adjourned for a short period to allow police to locate the absent witness pursuant to the bench warrant.
  • Whether the absence of the witness affected a prior admissibility ruling made by Johnson J on 6 December 2013 concerning the statements of a deceased person, and whether that ruling should be revisited.
  • Whether the Crown would need to take evidence on the voir dire (a preliminary hearing on admissibility, conducted in the absence of the jury) regarding the witness before deciding whether to call him and whether to rely on s 38 of the Evidence Act 1995 (NSW).

Decision

Button J granted the short adjournment sought jointly by both defence counsel and the Crown Prosecutor. His Honour acknowledged the trial's lengthy history and the general undesirability of further delay, but accepted that the bench warrant had only been in force for approximately 24 hours and that it may not have reached police immediately.

His Honour accepted that there was a potential interrelationship between the admissibility of the deceased witness's statements and whether the subpoenaed witness would be available for cross-examination. Rather than proceeding on assumptions about that question, Button J considered it worthwhile to allow a short period to clarify the position.

The Crown Prosecutor's joinder in the application was treated as significant, though not determinative. She noted genuine uncertainty about what the absent witness would say if located, and submitted that his availability would require a voir dire before she could discharge her function of deciding whether to call him and whether to invoke s 38 of the Evidence Act 1995 (NSW), which permits a party to cross-examine their own witness where that witness gives evidence inconsistent with a prior statement.

The adjournment was confined to two days, with Button J directing that all outstanding pre-trial applications be resolved on Thursday 3 July 2014, so that the Crown could open its case the following morning.

Orders Made

  • The trial was adjourned until 10 AM on Thursday, 3 July 2014.
  • A jury panel, or panels, to be required for empanelment at 10 AM on Friday, 4 July 2014.

Key Takeaways

  • A joint application for a short adjournment, supported by both the defence and an experienced Crown Prosecutor, carried significant weight with the court, even in a trial already burdened by delay.
  • The potential interrelationship between the availability of a witness for cross-examination and a prior admissibility ruling regarding a deceased witness's statements was a relevant factor in the adjournment decision.
  • Under s 38 of the Evidence Act 1995 (NSW), the Crown's ability to cross-examine its own witness on a prior inconsistent statement required the witness to be present; his absence therefore raised a threshold question that needed to be resolved before trial could properly proceed.
  • Button J balanced the public interest in avoiding further delay in a serious criminal matter against the fairness interest in not proceeding on assumptions about a witness's availability when a bench warrant had only recently been issued.
  • The brevity of the adjournment granted reflects the court's approach of providing only the minimum time necessary to resolve the outstanding issue, rather than allowing open-ended delay.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 38 (leave to cross-examine a witness on a prior inconsistent statement)

Cases:
- No cases were cited in the judgment text. The decision references a prior ruling of Johnson J dated 6 December 2013 in the same proceedings, concerning the admissibility of a statement of the late Mr Wade Hunter.