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Supreme Court 8 April 2016

R v Jenkins

[2016] NSWSC 414

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE ADJOURNMENT TRIAL VACATION

Citation: R v Jenkins [2016] NSWSC 414
Court: Supreme Court of New South Wales
Date: 8 April 2016
Judge(s): Campbell J

Background

The accused faced a charge of murder arising from a stabbing at Doonside on 18 September 2013. The matter had been set down for a three-week trial commencing 4 April 2016 by the Criminal List Judge. As the trial date approached, complications arose concerning the disclosure of the defence case.

The defence's s 143 notice under the Criminal Procedure Act 1986 (NSW) was not provided until 30 March 2016, just days before trial. That notice revealed, for the first time in a formal sense, that substantial impairment would be raised as a partial defence, alongside self-defence and mental illness.

Together with the s 143 notice, the defence served five expert reports from three specialists: a psychiatrist, a neuropsychologist, and a toxicologist/pharmacologist. The reports spanned from May 2015 to Easter Sunday 2016, with the latest delivered just days before the trial was due to start.

  • Whether the trial should be vacated on the Crown's application, given the late service of defence expert reports raising substantial impairment
  • Whether the Crown had sufficient time to respond to the new material before the scheduled trial date
  • Whether the circumstances of late disclosure amounted to a failure of the defence's obligations under the Criminal Procedure Act 1986 (NSW) and the Criminal Procedure Regulation 2010 (NSW)

Decision

Campbell J was satisfied that the Crown had no reasonable prospect of meeting the newly served expert material within the existing trial window. The Crown's instructing solicitor deposed to diligent but unsuccessful efforts to retain suitably qualified experts on short notice, and Campbell J accepted that it would take six to eight weeks to complete the necessary expert evidence. The defence consented to the adjournment, which his Honour described as a proper position to adopt.

His Honour was critical of the sequence of events that led to this outcome. Under cl 20 of the Criminal Procedure Regulation 2010 (NSW), notice of reliance on substantial impairment must be given no later than 35 days before trial, which in this case would have required notice by the last week of February 2016. The defence had plainly not met that deadline.

Campbell J noted that at the November 2015 arraignment before Johnson J, the defence solicitor had stated that substantial impairment was not to be relied upon, even though investigations into that issue were continuing. His Honour expressed the view that the proper course would have been to inform Johnson J that inquiries were ongoing and to seek a further adjournment until a definitive decision could be made. Two specific duties were invoked: the lawyer's duty of complete candour to the court, and the broader interests of the administration of justice in having trials proceed when listed.

The practical consequences were significant. Four to five weeks of Supreme Court hearing time allocated to the murder trial would be wasted. The accused, held on remand, would face a further delay in standing trial, with his Honour observing that a new trial date was unlikely to be available before late 2016 at the earliest. Notwithstanding those consequences, Campbell J concluded he had no option but to vacate the trial in the interests of justice.

Orders Made

  • The trial of R v Brandon Jenkins is vacated.
  • The matter is listed in the Arraignments List before Johnson J on 6 May 2016.

Key Takeaways

  • Under cl 20 of the Criminal Procedure Regulation 2010 (NSW), a defence relying on substantial impairment must give notice no later than 35 days before the commencement of trial. Failure to meet that deadline can render the Crown unable to respond, necessitating vacation of the trial.
  • Where defence investigations into a potential partial defence remain ongoing at the time of an arraignment or directions hearing, the Supreme Court regarded it as incumbent on defence lawyers to disclose that uncertainty to the court and, if necessary, seek a further adjournment.
  • The duty of complete candour to the court was identified as the primary obligation engaged in these circumstances, alongside the administration of justice interest in trials proceeding as listed.
  • Vacating a multi-week Supreme Court murder trial wastes hearing time that cannot be reallocated at short notice, and the court underscored that such consequences are to be "greatly deprecated."
  • Although the accused's continued remand pending a new trial date was an adverse consequence the court acknowledged, it did not outweigh the Crown's entitlement to adequate time to investigate and respond to new expert evidence going to a substantial impairment defence.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 143 (defence disclosure notice)
- Criminal Procedure Regulation 2010 (NSW), cl 20 (notice of substantial impairment defence, required no later than 35 days before trial)

Cases: No cases were cited in the judgment.