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Supreme Court 9 August 2022

R v Karaali (No 3)

[2022] NSWSC 1800

Homicide

Citation: R v Karaali (No 3) [2022] NSWSC 1800
Court: Supreme Court of New South Wales
Date: 9 August 2022
Judge(s): Campbell J

Background

The accused faced a murder trial originally listed to commence on 25 July 2022. COVID-related delays pushed the start date back to 3 August 2022. Before the trial proper could begin, a jury was empanelled and sent home while the parties resolved outstanding legal issues, including a dispute about late-served expert evidence from the Crown.

The Crown had served expert evidence from two witnesses: Sergeant Catto-Pitkin, a police digital forensic expert, and Mr Chang, an electronic engineer employed by Optus. The late service of that evidence prompted what amounted to a Basha inquiry (a pre-trial hearing to assess contested evidence), during which the court heard extensive expert testimony and legal argument before ruling on admissibility.

Campbell J ruled that the Crown was entitled to rely on that expert evidence, subject to the rejection of one portion of Sergeant Catto-Pitkin's evidence. However, the court also accepted that the accused's solicitor had taken reasonable steps to meet the late-served evidence and had been unable to do so within the available time, with the process likely to take several weeks.

  • Whether the Crown was entitled to rely on late-served expert evidence from two witnesses
  • Whether the jury should be discharged and the trial adjourned to allow the accused adequate time to respond to that expert evidence
  • Whether a certificate under s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW) should be issued to the accused to cover costs thrown away by the new trial

Decision

Campbell J ruled that the Crown's expert evidence was admissible, aside from one excluded portion of Sergeant Catto-Pitkin's evidence. Having found that the evidence was important to the Crown case, the court acknowledged that its admission placed the accused at a real disadvantage: the defence could not reasonably be expected to respond to it within the existing listing.

On the application to discharge the jury, the Crown did not oppose the order. The court granted the discharge, noting that the Crown's position was entirely proper in the circumstances. The trial was adjourned and relisted to commence on 6 February 2023.

On the Suitors' Fund Act certificate, Campbell J was satisfied that all statutory conditions were met. The proceedings were criminal, the trial had been discontinued by jury discharge, a new trial had been ordered, and the discontinuance was not attributable to any jury disagreement or to any act, neglect, or default of the accused or his legal representatives. The sole cause was the Crown's late service of expert evidence that the accused was not in a position to meet in time.

The court also clarified the two-stage process under s 6A: first, the presiding judge grants a certificate upon being satisfied of the statutory conditions; second, once the accused incurs additional costs by reason of the new trial, a claim may be made to the Director General for payment from the Fund. The court held it was unnecessary for additional costs to have already been incurred before a certificate could issue.

Orders Made

  • Jury discharge confirmed
  • Trial adjourned to commence 6 February 2023
  • Crown directed to serve additional evidence and disclosure by 5pm on 17 August 2022
  • Matter listed for mention on 18 August 2022 (accused excused from attending)
  • Accused remanded in custody until the new trial date
  • Certificate granted to the accused under s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW), to be drafted by his legal representatives and submitted to the judge for signature
  • Liberty to apply granted on short notice

Key Takeaways

  • The Supreme Court confirmed that a certificate under s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW) can be granted at the time of jury discharge without the accused having already incurred the additional costs of a new trial.
  • The process under s 6A is two-staged: the presiding judge grants the certificate on being satisfied of the statutory conditions, and a separate claim on the Fund is made later once additional costs are actually incurred.
  • A jury discharge and adjournment was warranted where the Crown's late service of important expert evidence left the accused without a reasonable opportunity to obtain responsive evidence within the existing listing.
  • The court found that the discontinuance of the trial was attributable solely to the Crown's conduct in serving expert evidence late, and was not the result of jury disagreement or any fault on the part of the accused or his representatives, satisfying the statutory preconditions for a Suitors' Fund certificate.
  • Admitting significant late-served evidence favourable to one party may, in appropriate circumstances, produce a consequential obligation to discharge the jury and allow the other party adequate time to respond.

Legislation and Cases Referenced

Legislation:
- Suitors' Fund Act 1951 (NSW), s 6A

Cases:
- A Basha inquiry was referenced by description (a pre-trial process for assessing contested evidence), though no formal citation was provided in the judgment text.