R v Mohammad Al-SAYAHEEN [2009] NSWDC 222

New South Wales District Court

CITATION: R v Mohammad Al-SAYAHEEN [2009] NSWDC 222

HEARING DATE(S): 17 August 2009 - 20 August 2009

JUDGMENT DATE: 20 August 2009

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: Stop the trial and discharge the jury.

CATCHWORDS: Criminal law - Judgment - Continuation of trial - Accused voluntarily absconded whilst on bail - Waived right to be present at his trial - Should trial continue?

R v McHardie and Danielson [1983] 2 NSWLR 733 CASES CITED: R v Serrano [2007] VSC 209; R v Jones (1998) 72 SASR 281 R v Hallocoglu (1992) 29 NSWLR 67

PARTIES: The Crown Mohammad Al-Sayaheen

FILE NUMBER(S): DC 2009/11/0108

COUNSEL: Ms T Smith - Crown Mr P Johnson - Accused

SOLICITORS: NSW DPP E.C Bramble Solicitor and Attorney

JUDGMENT

1 HIS HONOUR: The trial of the accused, Mohammad Al-Sayaheen, began two days ago on Tuesday. The jury was empanelled and after introductory remarks from me the Crown opened the case to the jury. Mr Johnson then opened the case on behalf of his client. In particular he said that his client would be giving evidence, and would say that he now accepts that what he told the police in a recorded interview he had with them, was not true.

2 The first witness was then called by the Crown. Evidence-in-chief was completed and she was part way through cross-examination at the end of the day. The following day the accused did not appear, as required. It was a condition of his bail that he arrive at Court escorted by either his solicitor or Mr Johnson or both but although they had made arrangements to meet him at Mr Johnson's chambers, he did not attend. There was a short adjournment when enquiries were made as to whether the accused had just turned up late to Mr Johnson's chambers, but after it became clear that that was not the case. I called the jury into Court, explained that the accused was absent for a reason that we could not ascertain (although I did give sickness as an example) and asked the jury to leave on the basis that they would be contacted if they were required the following day, that is the Wednesday.