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Court of Criminal Appeal 2 June 2016

Robinson v R

[2016] NSWCCA 108

Assault & violence
CRIMINAL LAW UNAVAILABILITY OF EXPERT WITNESS CHALLENGE TO EXERCISE OF DISCRETION

Citation: Robinson v R [2016] NSWCCA 108
Court: Court of Criminal Appeal, NSW
Date: 2 June 2016
Judge(s): Johnson, Wilson and Fagan JJ

Background

An accused person faced trial in the District Court at Penrith on four counts arising from the alleged severe physical abuse of a four-year-old child. The charges included detaining a child for advantage, assault occasioning actual bodily harm, and recklessly inflicting grievous bodily harm. A co-accused had already pleaded guilty to the same counts.

Shortly before the trial was due to commence on 30 May 2016, the Crown applied to vacate the trial date. The reason was that the Crown's key medical expert witness, a doctor who had examined the child at Westmead Children's Hospital and prepared a 23-page report on his injuries, was unavailable on the date fixed. The trial had been listed since August 2015. The next available date was 31 October 2016, meaning a five-month delay.

Judge Buscombe granted the Crown's adjournment application. The accused sought leave to appeal that interlocutory order to the Court of Criminal Appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW).

  • Whether leave to appeal an interlocutory adjournment order should be granted under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW)
  • Whether the trial judge's decision to vacate the trial date was not open on the evidence before the court (Ground 1)
  • Whether the trial judge failed to afford procedural fairness to the accused (Ground 2)

Decision

Ground 1: Whether the adjournment was not open on the evidence

The Court rejected the argument that the trial judge could not reasonably conclude that the doctor's oral evidence was necessary to the Crown case. Fagan J noted that no defence counsel can reliably guarantee that no factual development at trial will call for medical opinion beyond what a written report contains. The trial judge appropriately recognised that trials do not proceed according to a script, and that oral evidence from the examining doctor would allow the Crown to respond to factual scenarios that might emerge unexpectedly during proceedings. No identifiable error in the exercise of the discretion was established.

Ground 2: Procedural fairness

The accused argued that the trial judge had set a precondition for granting the adjournment and then granted it without that precondition being satisfied. The Court found this ground was unsound. The exchanges the accused relied upon were part of the judge's development of his understanding during argument, not a statement of his reasoning. The trial judge had properly assessed whether it was prudent and preferable for the Crown's case that the doctor be available, and was satisfied that it was.

Subpoenas and Crown practice

All three judges took the opportunity to comment on the Crown's apparent practice of issuing subpoenas to witnesses very late after a trial date is fixed. The Court endorsed the trial judge's concern and agreed that prompt service of subpoenas is an appropriate practice, consistent with the pre-trial preparation objectives prescribed in ss 139 and following of the Criminal Procedure Act 1986 (NSW).

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • An appellate court will be reluctant to interfere with a trial judge's discretionary decision on an adjournment application, and appellate review is governed by the principles in House v The King (1936) 55 CLR 499.
  • Leave under s 5F(3)(a) of the Criminal Appeal Act 1912 is available only where the decision is attended by sufficient doubt to warrant argument on appeal, or where the interests of justice otherwise require intervention.
  • No error was established in the trial judge's conclusion that the Crown needed the expert witness available in person, given that trials may produce unexpected factual developments requiring responsive medical opinion.
  • Isolated exchanges between a judge and counsel during argument do not constitute the judge's reasoning, and it is unsound to treat them as establishing the basis for a procedural fairness challenge.
  • The Court of Criminal Appeal confirmed that early service of subpoenas on Crown witnesses, soon after a trial date is fixed, is appropriate practice and is consistent with the pre-trial preparation obligations in the Criminal Procedure Act 1986 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35, 59, 86(2)(a)
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Criminal Procedure Act 1986 (NSW), s 139 and following

Cases
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- R v Alexandroia (1995) 81 A Crim R 286
- R v Matovski (1989) 15 NSWLR 720
- R v Steffan (1992) 30 NSWLR 663
- Regina v Cox [1999] NSWCCA 229
- Slotboom v Regina [2013] NSWCCA 18