R v Seller; R v McCarthy [2015] NSWSC 1299

Supreme Court New South Wales

Medium Neutral Citation: R v Seller; R v McCarthy [2015] NSWSC 1299 Hearing dates: 4 September 2015 Date of orders: 07 September 2015 Decision date: 07 September 2015 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Application refused Catchwords: CRIMINAL LAW – particulars – where detailed particulars of allegations provided over several years - Crown opening – whether Crown restricted or limited its case in opening to the jury – whether Crown case as opened different to case led at trial – whether accused provided with adequate particulars in such circumstances Cases Cited: Danny Mok (1987) 27 A Crim R 438 Category: Procedural and other rulings Parties: Ross Edward Seller (Accused) Patrick David McCarthy (Accused) Representation: Counsel: P McGuire (Crown) J Stratton SC with G Antipas (Seller) P Bruckner with R Johnson (McCarthy)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Hardin Law (Seller and McCarthy) File Number(s): 2009/237556;2009/237509 Publication restriction: Nil

Judgment 1. HIS HONOUR: The accused have each applied to restrict or confine the Crown case to misrepresentations referred to by the Crown in the Crown's opening. The burden of the application is that each of the accused has been misled by the scope of the opening to believe, and to conduct their respective cases so far based upon the belief, that the Crown had abandoned so much of its case as had not at that time specifically been mentioned. That is said to be so notwithstanding the extensive anterior written particularisation of the Crown case over some years preceding the commencement of the trial. The Crown's response to the application has been to contend that the opening presented to the jury was no more and no less than a summary of the case that the jury might be expected to hear, and that detailed reference to the precise terms of every representation upon which the Crown relied in support of its case was not, and should not be taken to have been, a modification of the case that has long been known to the accused and their legal advisers. For the reasons that follow, I consider that the Crown's position on this application is unassailable and that the application should be refused.