Citation: R v Ryan (a pseudonym) (No.3) [2022] NSWDC 15
Court: District Court of NSW
Date: 11 February 2022
Judge(s): Colefax SC DCJ
Background
The offender had been committed for trial on 25 June 2020, and sentence proceedings had been protracted, coming before a judge of the District Court on at least 18 occasions before the hearing on 19 November 2021. A contested facts hearing formed part of those sentence proceedings, preceded by an unsuccessful application for the judge to disqualify himself.
The sentence hearing proceeded over two days, 19 November and 17 December 2021, at the conclusion of which judgment was reserved. The previous two decisions in this series addressed the disqualification application and the reasons for the second hearing date respectively.
On 7 February 2022, four days before the reserved judgment was due to be delivered, the offender's solicitor emailed chambers attaching a letter from the offender's mother dated 31 January 2022. The email was treated as an informal application to reopen the offender's subjective case, and the letter as additional subjective evidence.
Legal Issues
- Whether the court should grant leave to reopen the offender's case after the sentencing hearing had concluded and judgment had been reserved.
Decision
The application to reopen:
The court refused the application to reopen the offender's case, identifying four distinct reasons for doing so (at [5]-[10]).
First, the court noted, as a procedural matter of lesser significance, that the application ought to have been made by notice of motion supported by an affidavit rather than by informal email to chambers (at [6]).
Second, and more significantly, no explanation was offered as to why the material in the mother's letter could not have been placed before the court at either of the two hearing dates (at [7]). Third, granting leave would have required both parties to be heard on the fresh evidence, further prolonging proceedings that had already run for an extended period (at [8]). Fourth, even a brief reading of the letter indicated that its contents would require the court to revisit and reconsider the expert evidence already before it, which the court declined to do (at [9]).
The Crown did not object to the application, but the absence of opposition did not alter the outcome (at [5]).
Orders Made
- Application to reopen the offender's case is refused.
Key Takeaways
- An application to reopen a case after a sentencing hearing has concluded and judgment has been reserved should be made by notice of motion supported by affidavit, not by informal communication to chambers (at [6]).
- The absence of Crown opposition to a procedural application does not, of itself, entitle an offender to the relief sought (at [5]).
- A party seeking to adduce fresh subjective material after a hearing must explain why that material was not available or provided at the hearing itself (at [7]).
- Granting leave to reopen carries procedural consequences, including the right of the opposing party to be heard on any fresh evidence, and the court may weigh the further delay this would cause to already protracted proceedings (at [8]).
- Where fresh material would require the court to revisit expert evidence already considered, that consideration weighs against granting leave to reopen (at [9]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- R v Ryan (a pseudonym) (No.1) [2021] NSWDC 727; R v Ryan (a pseudonym) (No.2) [2021] NSWDC 733