Citation: R v Elmir (No. 2) [2018] NSWSC 338
Court: Supreme Court of New South Wales
Date: 16 March 2018
Judge: Davies J
Background
The accused was facing a criminal trial that had been fixed by Johnson J for 19 March 2018, with a three-week estimate. Davies J had been managing the matter through a series of directions hearings in the lead-up to that date.
At a directions hearing on 14 March 2018, the Crown informed the court it intended to call a new witness whose evidence had only recently been finalised. That witness had provided a statement to the prosecution in late 2017, with the statement completed on 6 February 2018. Security and related concerns had delayed its disclosure to the defence.
The complicating factor was that the proposed new witness was himself facing criminal charges under the Commonwealth Criminal Code, with his own trial listed for August 2018. The Crown took the position that it could not call the witness in the accused's trial until after the witness's own proceedings had been resolved.
Legal Issues
- Whether the trial date of 19 March 2018 should be vacated given the Crown's inability to call a new and apparently significant witness until after that witness's own trial had concluded.
Decision
Davies J considered an affidavit from a solicitor at the Commonwealth Director of Public Prosecutions, which explained the circumstances surrounding the new witness and the timing constraints. A further affidavit, portions of which were marked confidential, provided a summary of the evidence the witness was expected to give. The court was satisfied that evidence appeared to be of some significance to the trial.
Counsel for the accused, while preferring the trial proceed as scheduled, realistically conceded that it could not do so in the circumstances. The court accepted that the Crown was not in a position to call the witness until his own trial or plea had been dealt with in August 2018.
Davies J concluded that the witness's pending trial created an insuperable obstacle to the current trial proceeding the following week. On that basis, the court vacated the trial date and listed the matter in the Arraignments List.
Orders Made
- The trial date of 19 March 2018 was vacated.
- The proceedings were stood into the Arraignments List on 6 April 2018.
Key Takeaways
- The Supreme Court vacated a fixed trial date where the Crown's proposed new witness was himself facing criminal charges, and the Crown could not call him until those proceedings had concluded.
- A witness's own pending trial can constitute a sufficient reason to vacate a listed trial date, even where the accused objects to the adjournment.
- The court treated the Crown's inability to call a material witness as an insuperable procedural obstacle rather than a matter of mere inconvenience or preference.
- Delays in disclosing a new witness to the defence, arising from security considerations, were accepted as a legitimate explanation for the late notice of the application to vacate.
- The decision reflects the practical reality that the availability and compellability of witnesses, including witnesses facing their own prosecutions, can directly control the viability of a scheduled trial.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth)
Cases:
- No cases were cited in the judgment.