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Supreme Court 3 July 2014

R v Hunter (No 5)

[2014] NSWSC 1148

Public order & justice offences
CRIMINAL LAW CROWN APPLICATION FOR AN ADJOURNMENT SUBPOENAED WITNESS NOT PRESENT BENCH WARRANT ISSUED

Citation: R v Hunter (No 5) [2014] NSWSC 1148
Court: Supreme Court of NSW
Date: 3 July 2014
Judge: Button J

Background

The accused had been in custody for over three years awaiting trial on what appears to be a serious criminal matter. The trial was listed to commence earlier that week, but two attempts to empanel a jury failed, and the empanelment was deferred while pre-trial legal argument continued.

A central pre-trial question concerned whether a ruling by Johnson J, which had permitted the reception of previous representations made by a person identified as Mr Wade Hunter, ought to be revisited. That question turned in part on whether another witness, Mr Gary Hunter, would be available to give evidence and be cross-examined.

Mr Gary Hunter had failed to answer a subpoena to attend on the first day of the trial. Button J issued a bench warrant for his attendance. Evidence received during the voir dire (a preliminary hearing to determine admissibility of evidence, conducted in the absence of the jury) suggested that Mr Gary Hunter was in contact with the accused's family and that the accused's romantic partner may have been seeking to influence his evidence.

  • Whether the pre-trial legal argument concerning the admissibility of the previous representations of Mr Wade Hunter should be adjourned to allow the situation regarding Mr Gary Hunter to develop further.
  • Whether the admissibility of Mr Gary Hunter's previous representations was also in play, given that his attendance remained uncertain.
  • Whether admitting multiple representations without the possibility of cross-examination would generate prejudice of the kind discussed in R v Suteski.

Decision

Button J granted the Crown's application to adjourn the pre-trial admissibility argument until the following Monday, with jury empanelment scheduled for Tuesday morning. Defence counsel did not oppose the adjournment, though submitted that the outstanding matters would need to be resolved promptly.

The judge acknowledged the regrettable history of the matter, including the length of the accused's pre-trial custody, the interests of those who loved the deceased, and the number of hearing days already lost that week. Despite clear reluctance to adjourn further, his Honour concluded it was in the interests of justice to allow the parties time to reflect carefully on the admissibility questions.

The court accepted that the situation regarding Mr Gary Hunter was developing fluidly, particularly given the contents of voir dire exhibit U and the Crown Prosecutor's reassessment of whether to tender his previous representations. Both parties accepted that the availability of Mr Gary Hunter bore directly on the admissibility argument concerning Mr Wade Hunter's evidence, because the cumulative effect of admitting multiple previous representations without cross-examination could increase prejudice to the accused.

His Honour stated firmly that, absent truly exceptional circumstances, no further adjournments in relation to these admissibility questions would be entertained.

Orders Made

  • The pre-trial legal argument concerning the admissibility of previous representations of Mr Wade Hunter (and potentially Mr Gary Hunter) was adjourned to Monday at 10:00 AM.
  • Jury empanelment was listed for Tuesday at 10:00 AM.
  • Other outstanding legal questions were to be addressed during the intervening days.

Key Takeaways

  • Button J confirmed that admissibility of previous representations under the Suteski principle requires careful consideration of the cumulative prejudice to an accused where multiple witnesses' evidence is received without the possibility of cross-examination.
  • The availability of a witness who has failed to answer a subpoena can directly affect the legal framework for assessing the admissibility of other witnesses' previous representations in the same proceeding.
  • A short adjournment of pre-trial argument was granted in the interests of justice where a key witness's attendance and conduct were still uncertain, even where the trial had already been significantly delayed.
  • Evidence received on voir dire suggesting interference with a subpoenaed witness may properly inform a court's management of the admissibility argument timetable.
  • In granting the adjournment, the court expressly flagged that further delays would not be countenanced, reflecting the obligation to balance fairness to the accused with the interests of victims and the efficient administration of justice.

Legislation and Cases Referenced

Cases:
- R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 (concerning prejudice to an accused arising from the admission of evidence without the opportunity for cross-examination)

Legislation:
No specific legislation was cited in the judgment.