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Supreme Court 23 March 2020

R v WE (No.15)

[2020] NSWSC 332

Public order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE OFFENCES CONTEMPT SELF REPRESENTED ACCUSED

Citation: R v WE (No.15) [2020] NSWSC 332
Court: Supreme Court of New South Wales
Date: 23 March 2020
Judge(s): Bellew J

Background

The accused faced a charge of preparing for a terrorist act, jointly with another person. He had withdrawn instructions from his legal representatives approximately one week before this judgment, electing to represent himself for the remainder of the trial.

From the point of self-representation, the accused engaged in persistently disruptive conduct. He made repeated applications for jury discharge and stays of proceedings, all of which were refused. He also asserted throughout that the trial was being conducted unfairly, a contention the court rejected in a separate judgment.

On the day of this ruling, the accused refused to leave his cell, was physically brought into the courtroom by four officers, and then lay on the floor of the dock, out of sight of the court and the jury. When Crown cross-examination began, he refused to answer any questions, including after a direct direction from the judge to do so.

  • Whether the Crown was still required to put its case to the accused in cross-examination, notwithstanding his anticipated refusal to answer any questions
  • Whether the accused's refusal to answer questions under cross-examination constituted a prima facie contempt of court, and what procedural course should follow
  • Whether the Crown Prosecutor should be permitted to make a closing address to the jury in circumstances where the accused was self-represented

Decision

On the cross-examination question, Bellew J held that it remained both appropriate and necessary for the Crown to put its case to the accused, even though it was reasonably foreseeable that he would continue to refuse to answer. The jury was told they could not see the accused because he was lying on the floor of the dock, and the court directed the jury not to draw any adverse inference from that behaviour.

On contempt, the court found a prima facie contempt had been committed by the accused's refusal to comply with the direction to answer questions. Bellew J noted that dealing with the matter immediately would cause further delay to a trial already significantly disrupted. The court opted instead to refer the matter to the Registrar under Part 55 of the Supreme Court Rules 1970 (NSW), directing that proceedings be commenced by motion.

On the question of the Crown's closing address, Bellew J drew on the Court of Criminal Appeal's decisions in R v E J Smith [1982] 2 NSWLR 608 and R v Zorad (1990) 19 NSWLR 91. Those cases confirmed that, while the longstanding practice in New South Wales was for the Crown not to address the jury when an accused was self-represented, this was neither a rule of practice nor a rule of law. The trial judge retains a discretion in the matter, to be exercised with fairness to both the accused and the public.

In exercising that discretion, Bellew J noted that the accused had withdrawn his own lawyers, that he had done so in circumstances where legal aid was available, and that the volume of Crown evidence was such that the jury would benefit from a structured address. On that basis, the court permitted the Crown Prosecutor to make a final address, while also confirming the accused would be given his own opportunity to address the jury if he chose to do so.

Orders Made

  • Pursuant to Part 55 Rule 11(1) of the Supreme Court Rules 1970 (NSW), the Registrar was directed to apply by motion for, or to commence proceedings for, the contempt of court prima facie committed by the accused
  • A copy of the judgment and the transcript of the day's proceedings were directed to be provided to the Registrar
  • The Crown Prosecutor was permitted, in the exercise of the court's discretion, to make a final address to the jury

Key Takeaways

  • The Court of Criminal Appeal had previously confirmed in R v E J Smith and R v Zorad that the Crown's practice of not addressing the jury where an accused is self-represented is neither a rule of practice nor a rule of law; a trial judge retains a discretion to depart from that practice where fairness warrants it.
  • Where an accused elects to discharge legally aided representation, the reasoning that originally underpinned the non-address practice (protecting an unrepresented accused from a trained advocate) carries reduced weight.
  • A trial court facing prima facie contempt may elect to refer the matter to the Registrar under Part 55 of the Supreme Court Rules 1970 (NSW) rather than deal with it immediately, particularly where immediate action would cause further delay to an already disrupted trial.
  • The volume and complexity of Crown evidence are relevant factors when a court exercises its discretion to allow the Crown to address the jury in cases involving a self-represented accused.
  • Physical disruption by an accused, including refusing to enter the courtroom or lying on the floor of the dock, does not of itself require the trial to be halted; the court may continue proceedings while directing the jury to draw no adverse inference from the conduct.

Legislation and Cases Referenced

Legislation
- Supreme Court Rules 1970 (NSW), Part 55, Rule 11(1)

Cases
- R v E J Smith [1982] 2 NSWLR 608 (NSW Court of Criminal Appeal)
- R v Turner (1977) 16 SASR 444 (South Australian Supreme Court)
- R v Zorad (1990) 19 NSWLR 91 (NSW Court of Criminal Appeal)