R v Patrick Michael Sheehan [2005] NSWCCA 250

New South Wales Court of Criminal Appeal

CITATION: R v Patrick Michael Sheehan [2005] NSWCCA 250

HEARING DATE(S): 18/07/2005

JUDGMENT DATE: 18 July 2005

JUDGMENT OF: Brownie AJA at 27; Buddin J at 1; Latham J at 28

DECISION: Leave to appeal refused.

CATCHWORDS: Appeal under s 5 F Criminal Appeal Act - refusal of District Court to adjourn trial - unavailability of witnesses - challenge to exercise of discretion

LEGISLATION CITED: Criminal Appeal Act

House v The King (1936) 55 CLR 499 at 504-5 Murphy v The Queen (1988-9) 167 CLR 94 CASES CITED: R v Alexandroaia (1995) 81 A Crim R 286 Thornberry v The Queen (1995) 69 ALJR 777

Crown PARTIES: Patrick Michael Sheehan

FILE NUMBER(S): CCA 2005/1293

C Everson ( Crown) COUNSEL: J Doris (Applicant)

S Kavanagh (Crown) SOLICITORS: A Torok (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/375

LOWER COURT JUDICIAL OFFICER: Hock DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1293

BROWNIE AJA BUDDIN J LATHAM J

MONDAY 18 JULY 2005 REGINA v PATRICK MICHAEL SHEEHAN Judgment 1 BUDDIN J: The applicant seeks leave pursuant to s 5F of the Criminal Appeal Act to appeal against the order of a District Court judge refusing to adjourn the applicant's trial. It is common ground that the challenge falls within the scope of s 5F: see R v Alexandroaia (1995) 81 A Crim R 286. 2 The applicant stands charged with knowingly having taken part in the sale of a number of firearms or pistols. He is also charged with having had possession of them. The offences are alleged to have occurred on 23 September 2001. The applicant was arrested and charged with these offences on 18 July 2002. He was committed for trial on 14 April 2003. Five other persons were also alleged to have participated in these offences. Each of them has now pleaded guilty and been sentenced. 3 The applicant's matter was first listed for trial on 3 November 2003. On at least two occasions the trial did not proceed on the appointed date. The matter was eventually fixed to commence on 11 July 2005 with an estimate of four weeks. 4 On 8 July 2005 the Crown filed a Notice of Motion in which it sought orders that the trial date be vacated and that a new trial date be set for 25 July 2005. In essence the Crown requested that the trial be adjourned for a period of two weeks. The application was made on two bases. The first related to the sudden illness of a material Crown witness. As matters transpired, the applicant indicated a willingness to make an admission in respect of that witness' evidence. As a result of that indication the Crown's concerns in respect of that issue at least were allayed. 5 The other basis upon which the application was made related to the unavailability of another Crown witness, a Dr Helen Fraser. The Crown's instructing solicitor swore an affidavit in support of the Notice of Motion in which she asserted that the Crown had not originally intended to call Dr Fraser. Accordingly she said that it had not ascertained her availability when the matter was fixed for trial. Subsequently, however, the representatives of the applicant indicated that they wished the Crown to make Dr Fraser available as a witness at the trial. Inquiries revealed that Dr Fraser would not be available during the period between 15 – 25 July as she was due to present a paper at a conference in Seoul, South Korea. 6 When the matter was called on for hearing in the District Court, the Crown sought an adjournment of the trial in the terms foreshadowed in the Notice of Motion. The application was not opposed. Discussion then ensued to ascertain if the matter could proceed in a manner which would accommodate the fact that Dr Fraser was going to be unavailable during the period which I have indicated. It emerged that the court was not able to provide a four week block of time commencing on 25 July as the Crown had originally requested. The next available block of four weeks which the court could provide was not until 22 August. The difficulty that that date presented was that it could not be immediately ascertained if all the other witnesses to be called in the Crown case would be available at that time. 7 It is important at this point to observe that during the course of debate about the adjournment application, it emerged that there were a number of matters of a preliminary nature that needed to be resolved before a jury could be empanelled. It appears that the Crown had received prior notice of at least one such issue. Nevertheless it seems that other matters only arose for the first time during the course of the discussion to which I have just referred. 8 The case which the Crown seeks to present against the applicant involves an allegation that he was involved in the supply of a number of firearms or pistols to a Mr Archer who, together with a number of other persons, was responsible for on-selling the weapons to the ultimate purchasers. The Crown case against the applicant depends substantially, it appears, upon the contents of intercepted telephone conversations between Archer and a person whom the Crown alleges is the applicant. In seeking to establish that it is the applicant's voice, the Crown seeks to rely upon the evidence of the officer in charge of the case, who has not only listened to the conversations but who was also present when a search warrant was executed upon the applicant's premises. The Crown also relies upon other pieces of evidence, including material obtained during the course of the execution of that search warrant. 9 The Court was informed that Dr Fraser, who is an expert in linguistics, has apparently expressed an opinion which falls well short of establishing that the voice on the telephone intercepts is that of the applicant. It was in those circumstances that the applicant foreshadowed to the trial judge an objection to the admissibility of the "ad hoc" expert opinion of the police officer. A challenge to the admissibility of the search warrant itself and what was located as a consequence of it was also foreshadowed during the course of the discussions concerning the adjournment application. It appears to be common ground that if either of those challenges was to succeed, then the Crown may well be unable to establish its case. 10 It was against that background that the trial judge indicated a view that the interests of justice required the commencement of the hearing of the preliminary matters, even if it meant that at some stage the hearing of those issues would have to be interrupted to await the return of Dr Fraser. Notwithstanding the Crown's original position, it appeared content to embrace that proposal. Counsel for the applicant indicated from the bar table, without any supporting evidence, that were there to be any such interruption then the delay may well place his client in a position of "financial embarrassment before the end of the trial". 11 Shortly after proceedings commenced on the second day, the trial judge formally refused the Crown's application and indicated that the matter would proceed. The trial judge gave no reasons for refusing the adjournment and nor, at least initially, were any sought. It is clear from the transcript however that her Honour was of the view that it was expedient to at least proceed with the resolution of the preliminary issues. As her Honour said, it was possible at any stage for her original decision to be revisited. 12 The balance of the second day of hearing was occupied with evidence taken on the voir dire in respect of the challenge to the admissibility of the search warrant, a matter with which the evidence of Dr Fraser was not directly concerned. Indeed evidence taken on the voir dire concerning this issue occupied the following two days as well. It is apparent that that time has been well spent. It is now also clear that that issue has taken considerably more time to ventilate than had been originally indicated.