Citation: R v Macdonald; R v Maitland (No 9) [2022] NSWSC 1449
Court: Supreme Court of New South Wales
Date: 21 October 2022
Judge: Dhanji J
Background
The accused in this matter faced serious criminal charges: one accused was charged with two counts of wilful misconduct in public office, and the other was charged as an accessory before the fact to those offences. The trial proceeded before a judge sitting alone, having commenced on 7 September 2022. One accused was represented by counsel; the other was unrepresented.
The unrepresented accused was a former national secretary of the CFMEU who had subsequently chaired a mining company at the centre of the alleged conduct. This was a retrial: the unrepresented accused had witnessed the first trial in full and had been represented by senior and junior counsel at that earlier proceeding.
The court had previously observed, in an earlier ruling (No 7) on an adjournment application, that the unrepresented accused had conducted himself with a significant level of competence, including opening his case, cross-examining Crown witnesses, and presenting his own evidence through an interlocutor. The question now arising was whether the Crown should be permitted to deliver a closing address.
Legal Issues
- Whether the Crown prosecutor should be permitted to deliver a closing address where one of the accused is unrepresented.
- What discretion the trial judge holds in determining this question, and how that discretion should be exercised in the circumstances of this trial.
Decision
Dhanji J confirmed that, under settled New South Wales authority, there is a practice (not a rule) that the Crown does not address in cases where an accused is unrepresented. The Court of Criminal Appeal established in R v Zorad (1990) 19 NSWLR 91 that the practice is not a rule of law and that the decision whether to permit a Crown closing address rests with the trial judge's discretion. That position was reaffirmed more recently in TS v R [2022] NSWCCA 222.
His Honour identified three factors that together persuaded him to exercise the discretion in favour of permitting a Crown closing address. First, the complexity and volume of the evidence: the trial involved approximately 1,700 pages of transcript from the first trial, five folders of documentary material, live witnesses whose evidence differed from their earlier accounts, and a circumstantial Crown case spanning events from early 2007 to late 2008. Second, the obligation on the Crown prosecutor to conduct the address with restraint and discipline. Dhanji J noted that the judge-alone format itself provides a structural safeguard, because the requirement to give reasons guards against undisciplined reasoning, making emotive or loose advocacy less likely to cause unfairness.
Third, and importantly, the unrepresented accused would be entitled to address after the Crown, both in writing and orally. His Honour was satisfied, having regard to the accused's demonstrated competence throughout the trial and his professional background, that the accused was capable of preparing and presenting an effective closing submission in response.
Orders Made
No formal order was recorded in the provided text; however, the court exercised its discretion to permit the Crown prosecutor to present a closing address, both in written and oral form.
Key Takeaways
- The Court of Criminal Appeal confirmed in R v Zorad (1990) that the Crown's practice of not addressing where an accused is unrepresented is precisely that: a practice, not a rule of practice and not a rule of law.
- A trial judge retains a discretion in every case to permit or decline a Crown closing address where an accused is unrepresented, to be exercised having regard to the specific circumstances of the trial.
- Complexity of the evidence is a legitimate factor in the exercise of that discretion: the volume of documentary material, the circumstantial nature of the Crown case, and the evidentiary issues arising from a retrial all weighed in favour of permitting the address here.
- The judge-alone context carried relevance: Dhanji J noted that the requirement to give reasons operates as a safeguard against undisciplined advocacy affecting the outcome, reducing the potential unfairness to an unrepresented accused.
- An unrepresented accused's demonstrated competence throughout the trial, combined with the right to respond after the Crown, were factors weighing against any suggestion that permitting a Crown address would produce unfairness.
Legislation and Cases Referenced
Cases:
- R v Zorad (1990) 19 NSWLR 91 (Court of Criminal Appeal)
- TS v R [2022] NSWCCA 222
- MS v R [2017] NSWCCA 252
- R v Macdonald; R v Maitland (No 7) [2022] NSWSC 1412
Legislation: No specific legislation was cited in this decision.