Citation: R v Manuel (No 3) [2015] NSWSC 1564
Court: Supreme Court of New South Wales
Date: 15 October 2015
Judge(s): Campbell J
Background
This decision arose during a murder trial before the Supreme Court. The accused was charged in connection with the death of a person at a residential unit in Penshurst in the early hours of 30 April 2013. A witness, referred to here as the absent witness, had been present at the premises on the night in question, though he had left before the incident in which the accused struck the deceased.
The Crown had subpoenaed the absent witness to give evidence at trial. He attended court on the first day of the trial but was told his evidence would not be reached that day and was asked to return the following day. He failed to appear on that second day and again failed to appear on the third day, despite being called outside the courtroom three times in accordance with standard practice.
Police made efforts to locate the absent witness at a location associated with his voluntary charity work in the Sydney CBD, but he was not found. Campbell J was asked to consider whether a warrant should issue to compel his attendance.
Legal Issues
- Whether the absent witness had been duly served with the subpoena to give evidence
- Whether his non-appearance was without just cause or reasonable excuse
- Whether a bench warrant should be issued to bring him before the Court
Decision
Issue 1: Service of the subpoena
Campbell J was satisfied that the absent witness had been duly served with the subpoena. The officer-in-charge of the investigation gave evidence of service, and an affidavit of service annexing the subpoena was admitted on the voir dire (at [1]).
Issue 2: Non-appearance without just cause
The court found that the absent witness's failure to appear was without just cause or reasonable excuse (at [4]). This finding was made on the balance of probabilities, based on the fact that the witness had attended court in answer to the subpoena on the first day, had been told to return, and had then failed to do so on two further occasions. There was no evidence of illness, injury, or misadventure explaining his absence (at [4]).
Issue 3: Materiality of the witness's evidence
Campbell J was satisfied that the absent witness's evidence was likely to be important in the case (at [3]). Although the witness had left the premises some hours before the accused struck the deceased, he had been present at the location with both the accused and the deceased earlier that night (at [3]).
Issue 4: Issue of bench warrant
Given the service of the subpoena, the absence without excuse, and the likely materiality of the evidence, Campbell J directed the registry to issue a warrant authorising any police officer to bring the absent witness before the Court as soon as possible, and no later than 10am the following day (at [5]).
Orders Made
- A bench warrant was issued for the absent witness to be brought before the Court as soon as possible.
Key Takeaways
- A court may issue a bench warrant to compel attendance where a witness has been duly served with a subpoena, fails to appear, and there is no evidence of illness, injury, or other misadventure explaining the non-appearance (at [4]-[5]).
- Attendance on an earlier day of the same trial, combined with a subsequent unexplained failure to return when directed, can ground a finding on the balance of probabilities that non-appearance is without just cause or reasonable excuse (at [4]).
- The likely materiality of a witness's evidence is a relevant consideration in the decision to issue a warrant: the Supreme Court was satisfied that the absent witness could give evidence important to the conduct of the trial (at [3], [5]).
- Physical circumstances of a witness, such as having no fixed abode, do not by themselves constitute just cause or reasonable excuse for non-attendance if service of the subpoena has been established and no other explanation is offered (at [4]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated