Citation: [2016] NSWSC 1942
Court: Supreme Court of New South Wales
Date: 13 April 2016
Judge(s): Adamson J
Background
The applicant was pursuing what is known as a "Dietrich application," a procedural application (named after the High Court decision in Dietrich v The Queen (1992) 177 CLR 292) by which an accused person may seek to have criminal proceedings stayed or adjourned on the basis that they cannot obtain legal representation and a fair trial would otherwise be denied.
During cross-examination on that application, the applicant was questioned about documents that had been sought by the Director of Public Prosecutions. Those documents had allegedly been provided by the applicant, or on his behalf, to the Legal Aid Commission in support of his legal aid application, but had not been provided to the Crown.
In re-examination, counsel for the applicant sought to tender that documentary material. However, the applicant could not confirm with certainty that what was before the court was the same material supplied to Legal Aid, as he had not seen it in that particular form. The Crown objected on the grounds that the material did not properly arise in re-examination and, more significantly, that the Crown had not previously received it and so had been unable to use it in cross-examination.
Legal Issues
- Whether documents tendered in re-examination, which had not previously been provided to the Crown, should be admitted or rejected.
- If admitted, what procedural conditions should attach to that admission to protect the Crown's right to test the material.
- Whether the hearing should be adjourned to allow the applicant to file an affidavit establishing the provenance of the documents.
Decision
Issue 1: Admission of the tendered material
The court determined that, given the seriousness of the Dietrich application and the importance of ensuring a fair trial for both the applicant and his co-accused, the interests of justice favoured permitting the material to be tendered rather than rejecting it outright (at [4]).
Issue 2: Conditions for admission
The court held that the material could not be admitted without a supporting affidavit in which the applicant identifies the documents as being the material provided on his behalf to the Legal Aid Commission, given his inability to do so conclusively from the witness box (at [4]-[5]).
Issue 3: Adjournment
Because the affidavit was necessary before the hearing could proceed, and counsel confirmed the matter could not advance without it, the court adjourned the hearing part-heard to 9.15 am on Wednesday 20 April 2016 (at [5]-[6]).
Orders Made
- The hearing of the applicant's notice of motion (filed 21 January 2016) was adjourned part-heard to 9.15 am on Wednesday 20 April 2016.
Key Takeaways
- Where documents are sought to be tendered in re-examination that were not previously provided to the opposing party, a court may still admit the material in appropriate circumstances rather than reject it outright, provided procedural fairness to the other party is preserved (at [3]-[4]).
- A supporting affidavit establishing the provenance of tendered documents may be required where the witness cannot identify the material with certainty from the witness box (at [4]).
- The seriousness of a Dietrich application, and the court's concern for the fair trial rights of both an applicant and any co-accused, are relevant considerations when a court exercises its discretion over the admission of late-tendered evidence (at [4]).
- Adjournment of a part-heard application is appropriate where all parties accept that the matter cannot proceed without foundational evidence being formally filed (at [5]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Dietrich v The Queen (1992) 177 CLR 292