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District Court 20 October 2022

R v Sloan (No. 2)

[2022] NSWDC 499

Assault & violenceFirearms & weaponsPublic order & justice offences

Citation: R v Sloan (No. 2) [2022] NSWDC 499
Court: District Court of NSW
Date: 20 October 2022
Judge: Bennett SC DCJ

Background

The accused faced six counts on the indictment, including stalking and intimidation, detention to obtain a psychological advantage, use of an offensive weapon with intent to intimidate, two counts of threatening a witness to prevent attendance at trial, and perverting the course of justice. The accused had been held in custody for almost two years awaiting trial, during which time separate murder proceedings had also been commenced against him in the Local Court.

Before the jury was called upon to hear any evidence, the Court was required to resolve a series of preliminary applications. These included whether two witnesses could give evidence by audio-visual link (AVL), whether tendency evidence should be admitted under the Evidence Act, and whether counts 4, 5 and 6 should be severed from the indictment and tried separately.

The Court announced its preliminary conclusions on the AVL application and the severance question. Defence counsel then indicated that the accused intended to seek leave to appeal the AVL ruling to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912, an interlocutory appeal provision. This prompted the application to discharge the empanelled jury before any evidence was heard.

  • Whether the Crown could adduce the evidence of the complainant and his partner via audio-visual link from a remote location
  • Whether tendency evidence could be led by the Crown under section 97 of the Evidence Act 1995
  • Whether counts 4, 5 and 6 should be severed from the indictment and heard separately from counts 1, 2 and 3
  • Whether the jury should be discharged to facilitate an interlocutory appeal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912

Decision

The Court granted the application for the two witnesses to give evidence via AVL and refused the application to sever counts 4, 5 and 6 from the indictment. The tendency evidence question remained unresolved, with further submissions anticipated. Additional evidentiary questions, including the admissibility of evidence relating to a weapon allegedly found in the accused's possession, also awaited determination.

On the discharge application, the Court noted that the jury had been empanelled but had heard no evidence. They had received only a brief outline of the case during the selection process and preliminary directions. In those circumstances, the disruption caused by discharging the jury was assessed as limited.

The Court referred to guidance from the Court of Criminal Appeal in RKF v The Queen [2016] NSWCCA 116, where RA Hulme J encouraged practitioners contemplating section 5F applications to take steps to expedite the appeal through the Court of Criminal Appeal Registry, so as to minimise disruption to ongoing trials. The District Court also noted the Chief Judge's memorandum to all judges of the Court, which reminded them that trials should not be vacated merely because a party indicates an interlocutory appeal is contemplated.

Notwithstanding that general principle, the Court concluded that discharging the jury in this particular case was appropriate. The written reasons on the AVL and severance questions needed to be published on Caselaw before meaningful advice could be given on the merits of any section 5F application. The Crown did not oppose the discharge. The matter was adjourned to allow the judgment to be finalised and published, with a view to relisting the trial with a new jury as soon as possible, potentially the following week.

Orders Made

  • The jury was discharged from further service.
  • The matter was adjourned until the following morning at 10:00 am, to be reviewed day-to-day the following week pending the outcome of the anticipated interlocutory appeal process.

Key Takeaways

  • The District Court discharged an empanelled jury to allow the accused to pursue an interlocutory appeal under section 5F of the Criminal Appeal Act 1912, but emphasised that this was appropriate only because the jury had heard no evidence and the disruption was therefore limited.
  • A standing reminder exists from the Chief Judge of the District Court that trials should not be vacated merely because a section 5F interlocutory appeal is flagged; the discharge here was granted in specific and narrow circumstances.
  • Under RKF v The Queen [2016] NSWCCA 116, practitioners contemplating section 5F applications are encouraged to engage with the Court of Criminal Appeal Registry early to expedite the appeal and limit disruption to the trial.
  • Prolonged pre-trial custody for an unconvicted person was treated by the Court as a weighty consideration in the management of proceedings, with the Court describing continued remand pending unresolved charges as "unconscionable" where delays were avoidable.
  • Where multiple complex evidentiary issues arise sequentially during a trial, and written reasons are necessary before an interlocutory appeal can be meaningfully assessed, the publication of those reasons on Caselaw may be a precondition to any section 5F application proceeding in a meaningful way.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(1)(b), 33B(1)(a), 319, 322(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 94, 97

Cases
- RKF v The Queen [2016] NSWCCA 116