R v Hunter (No 5) [2014] NSWSC 1148

Supreme Court New South Wales

Medium Neutral Citation: R v Hunter (No 5) [2014] NSWSC 1148 Hearing dates: 3 July 2014 Decision date: 03 July 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: Jury to be empanelled at 10 AM on Tuesday. Catchwords: CRIMINAL LAW - Crown application for an adjournment - subpoenaed witness not present - bench warrant issued - possible exclusion of other evidence as a result of unavailability of the witness Cases Cited: R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 Category: Interlocutory applications Parties: Regina Paul Andrew Hunter Representation: Counsel: M Cinque (Crown) D Carroll (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Shiranica Danieli Lawyers (Accused)

File Number(s): 2011/397367

ex tempore Judgment 1An application has been made by the Crown Prosecutor to adjourn the pre-trial application until next Monday, and to empanel the jury shortly after that. 2Defence counsel does not oppose the application, though he does submit that matters will need to be resolved shortly. 3The succinct background is that the trial was listed to commence on Monday of this week. Two attempts were made to empanel a jury, without success. Thereafter, I stood the empanelment over until Wednesday and embarked upon a discussion of legal matters with the parties on Tuesday. On Tuesday, on the application of both parties, I adjourned the legal argument to today and the empanelment until tomorrow. I delivered a short separate judgment giving reasons for that course. 4To state things succinctly, an important legal argument is whether the judgment of Johnson J, permitting the reception into evidence of a previous representation of Mr Wade Hunter, should be revisited. That question, in turn, depends to some degree on whether Mr Gary Hunter will be available to give evidence. 5Mr Gary Hunter did not answer a subpoena to attend and give evidence on the first day of the trial, and I have issued a bench warrant. 6Today, Crown voir dire exhibit U was received into evidence. In short, it suggests that Mr Gary Hunter is in contact with other members of the family of the accused. It also suggests that the romantic partner of the accused is in contact with Mr Gary Hunter, and arguably seeking to tell him what to say in the witness box. 7Earlier this week the learned Crown Prosecutor indicated that she would not seek, in the absence of Mr Gary Hunter, to place his previous representations before the jury. However, in light of the contents of voir dire exhibit U, she has explained today that she wishes to have time to reflect further on that question. 8Both parties have submitted that that question - namely, whether the previous representations of Mr Gary Hunter are admissible - could be an important consideration in determining whether, and, if so to what effect, the judgment of Johnson J with regard to the evidence of Mr Wade Hunter should be revisited. In particular, defence counsel submitted that the more witnesses whose evidence is admitted without the possibility of cross-examination, the greater will be the prejudice discussed in such cases as R v Suteski [2002] NSWCCA 509; 56 NSWLR 182. 9The Crown Prosecutor has also submitted that, in light of the situation with regard to Mr Gary Hunter which, in her submission, is developing day by day, it would not be inappropriate to stand over the legal argument that is founded (at least to some degree) on whether or not he is to be at Court to a date merely one week after the date upon which the trial was listed to commence. 10The matter has a highly regrettable history. In particular, the accused was charged well over three years ago, and I understand that he has been in custody all of that time. No doubt those who loved the deceased seek resolution of the matter as soon as possible. And the processes of the Court have already been disrupted once by a trial date having to be vacated on the application of defence counsel. A large number of hearing days have already been lost this week. 11Having said all that, I consider that the question of the admissibility of the previous representations of Mr Wade Hunter, and possibly Mr Gary Hunter, are very important in the trial. They should not be determined, to my mind, without the parties having had a chance to reflect calmly on the way forward. 12The situation with regard to Mr Gary Hunter is, I accept, developing fluidly. 13Some time can be spent this week determining other legal questions, in order to permit the running of the trial before the jury without any interruption. 14As the Crown Prosecutor submitted, in the scheme of things, if her application is accepted the trial will have been delayed a little over a week by the time the jury is empanelled. 15Despite my reluctance to adjourn the trial yet again this week, I consider that it is in the interests of justice to adjourn all of the legal discussions about the admissibility of previous representations of Mr Wade Hunter, and potentially Mr Gary Hunter, until Monday at 10 AM. Unless truly exceptional circumstances arise, I would not be open to further adjournments in that regard. 16My intention is that the jury would be empanelled at 10 AM on Tuesday.