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District Court 12 April 2016

R v Smith

[2016] NSWDC 108

Public order & justice offences
CRIMINAL

Citation: R v Smith [2016] NSWDC 108
Court: District Court of New South Wales
Date: 12 April 2016
Judge: Judge S Norrish QC

Background

The accused was mid-trial on criminal charges when he discharged his barrister. The Court ultimately also permitted the instructing solicitor to withdraw, on the basis that she lacked the confidence, skill, and experience to conduct the trial herself. From that point, the accused appeared unrepresented, though assisted by an experienced barrister acting as a friend of the court (amicus curiae).

By the time the evidence concluded, the jury had been stood down so the court could resolve outstanding legal questions before closing addresses. A significant procedural issue had arisen: whether the judge should exercise a discretion to prevent the Crown from delivering a closing address to the jury, given that the accused would have to respond to a professional advocate's submissions without the benefit of legal representation.

The Crown opposed the exercise of that discretion. The amicus curiae, on behalf of the accused, argued in favour of it.

  • Whether the trial judge held a discretion to prevent the Crown from making a closing address where the accused was unrepresented.
  • If that discretion existed, whether the circumstances of this case warranted its exercise.
  • What considerations were relevant to that exercise, including the risk of prejudice to the accused, the complexity of the case, and whether the accused had sought any tactical advantage by becoming unrepresented.

Decision

Judge Norrish confirmed, consistent with the NSW Court of Criminal Appeal's decision in R v Zorad (1990) 19 NSWLR 91, that a trial judge does hold a discretion to prevent the Crown from closing to the jury where the accused is unrepresented. That discretion is to be exercised by reference to all the circumstances, with the overriding consideration being the interests of justice, taking into account the interests of both parties.

The Crown conceded that the accused had not engineered his unrepresented status to gain a tactical advantage, distinguishing the case from the facts in Zorad, where such an inference had been available. His Honour accepted that the accused's loss of representation arose from a genuine breakdown of the solicitor-client relationship rather than any strategic calculation.

Nonetheless, after weighing all the relevant factors, his Honour declined to exercise the discretion to prevent a Crown address. The judge noted the presence of some technical evidence in the Crown case that warranted explanation, and was satisfied that protective measures could adequately address the disadvantages faced by the accused. These measures included: providing the accused with written notice of the Crown's proposed address in advance; allowing him time after the address to consider his response; offering him the opportunity to ask the judge questions in the absence of the jury; and permitting him to consult the amicus curiae.

His Honour also placed an important constraint on the manner in which the Crown was to address the jury. The Crown was directed to confine its submissions to the evidence and to avoid framing any part of its address as an anticipation or pre-emption of arguments the accused might raise. The distinction drawn was between permissible references to evidence that could support an inference favourable to the accused, and impermissible attempts to rebut arguments the accused had not yet made.

Orders Made

No formal orders were made in this decision. The ruling was procedural: the Crown was permitted to deliver a closing address, subject to the constraints identified by the judge.

Key Takeaways

  • A trial judge in New South Wales holds a discretion to prevent the Crown from making a closing address where the accused is unrepresented, as confirmed in R v Zorad (1990) 19 NSWLR 91, and that position remained unchanged as at 2016.
  • The central consideration in exercising the discretion is the interests of justice, assessed by reference to all the circumstances, including the risk of prejudice to the accused, the complexity of the evidence, and whether the accused sought any tactical advantage by appearing without representation.
  • Absence of tactical advantage on the accused's part is a significant factor, but it does not automatically result in the discretion being exercised to exclude the Crown's address.
  • Protective measures available to a judge, such as advance notice of the Crown's proposed submissions, additional time for the accused to prepare a response, and access to an amicus curiae, are relevant to whether any residual prejudice can be adequately managed.
  • Where the Crown is permitted to address an unrepresented accused, it must not frame its submissions as a pre-emptive response to arguments the accused has not yet made; submissions must be confined to the evidence and the inferences the Crown asks the jury to draw.

Legislation and Cases Referenced

Cases:
- R v Zorad (1990) 19 NSWLR 91 (principal authority on the discretion)
- A v The Queen [2012] NTCCA 9 (Northern Territory Court of Criminal Appeal, cited as a more recent treatment of the same issue)
- R v Turner (1977) 16 SASR 444
- R v Smith [1982] 2 NSWLR 605

Legislation: No specific legislation was identified in the judgment.