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Supreme Court 3 December 2014

R v IL (No 3)

[2014] NSWSC 1733

HomicideDrugsFirearms & weapons
CRIMINAL LAW ADJOURNMENT DISCHARGE OF JURY APPLICATION REQUIRING DISCHARGE OF JURY DELAYS IN TRIAL EXPENSE

Citation: R v IL (No 3) [2014] NSWSC 1733
Court: Supreme Court of New South Wales
Date: 3 December 2014
Judge(s): Hamill J

Background

The accused (referred to as IL) faced a seven-count indictment including manufacturing a large commercial quantity of methylamphetamine, murder (with manslaughter as an alternative), and several weapons-related offences. The trial commenced on 17 November 2014, with the Crown's case closing on 27 November 2014.

On 2 December 2014, Hamill J delivered a ruling (R v IL (No 2) [2014] NSWSC 1710) that the evidence did not support the murder and manslaughter counts, and that he intended to direct the jury to acquit on those two counts. The Crown then applied for an adjournment of the entire proceedings, which would also require the discharge of the jury.

The Crown's stated purpose was to preserve the possibility of appealing the directed verdict ruling, and to consider the implications of the decision for what it described as "other cases in the pipeline." No details of those other cases were provided to the court.

  • Whether the court should adjourn the proceedings and discharge the jury following a ruling that evidence did not support two counts on the indictment
  • Whether an interlocutory appeal was available under s 5F of the Criminal Appeal Act 1912 (NSW) in respect of the directed verdict ruling
  • Whether the right to appeal against an acquittal by direction arose before or after the directed verdict was formally entered
  • Whether the Crown's asserted public interest grounds and the interests of "other cases" justified the significant disruption to the current proceedings

Decision

Hamill J refused both the adjournment and the associated application to discharge the jury. He noted that the Crown had been on notice since at least September 2014 that the defence intended to apply for a directed verdict on the homicide counts. Despite having several days between the close of the Crown case and the delivery of the ruling, the Crown had not consulted adequately with the Director of Public Prosecutions, and the Deputy Director who had originally directed the murder charge had only a "quite limited" recollection of the matter.

On the appeal rights question, Hamill J reiterated the position he had already flagged to the Crown: the directed verdict ruling was not an interlocutory judgment or order amenable to appeal under s 5F of the Criminal Appeal Act 1912, and any right to appeal against an acquittal by direction arose only after the verdict was formally entered under s 107(3) of the Crimes (Appeal and Review) Act 2001. These statutory provisions were, in his Honour's words, "completely clear."

The court rejected the Crown's submission that the public interest in cases involving clandestine drug laboratories, and the potential relevance of the ruling to other prosecutions, justified discharging the jury. No details of the other cases were provided. Hamill J observed that the accused had been on stringent bail conditions for nearly two years, that the jury had been patient throughout a trial marked by early adjournments, and that the trial was close to its conclusion, with the jury expected to retire within days.

Weighing all factors, Hamill J found no proper basis for the exercise of the discretion in the Crown's favour. The remaining counts, including the serious manufacturing charge carrying a maximum of life imprisonment, would proceed to verdict.

Orders Made

• The application for adjournment is refused
• The application to discharge the jury is refused
• The trial continues

Key Takeaways

  • A directed verdict ruling of the kind made in this case does not constitute an interlocutory judgment or order for the purposes of s 5F of the Criminal Appeal Act 1912 (NSW), and is therefore not amenable to interlocutory appeal by the Crown.
  • Under s 107(3) of the Crimes (Appeal and Review) Act 2001 (NSW), the Crown's right to appeal against an acquittal by direction arises only after the directed verdict has been formally entered, not before.
  • Refusing the adjournment, the Supreme Court gave significant weight to the accused's two years on stringent bail conditions, the advanced stage of the trial, and the burden already placed on the jury, in declining to discharge the proceedings.
  • An assertion that a ruling is relevant to "other cases in the pipeline" does not, without more, constitute a sufficient ground for adjourning proceedings and discharging a jury; unparticularised public interest claims will receive limited weight.
  • Where the Crown has been on notice of a potential directed verdict application for months, the court may be unsympathetic to requests for further time to formulate a response after the ruling is delivered.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes (Appeal and Review) Act 2001 (NSW), s 107(3)

Cases:
- R v IL (No 2) [2014] NSWSC 1710
- R v Lethlean (1985) 53 A Crim R 197
- R v Cheng (1998) 48 NSWLR 616