Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Robinson v R [2016] NSWCCA 108 Hearing dates: 2 June 2016 Date of orders: 02 June 2016 Decision date: 02 June 2016 Before: Johnson, Wilson and Fagan JJ Decision: Leave to appeal is refused. Catchwords: CRIMINAL LAW – application for leave to appeal against decision of trial judge to vacate trial date – unavailability of expert witness – challenge to exercise of discretion Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: House v The King [1936] HCA 40; (1936) 55 CLR 499 R v Alexandroia (1995) 81 A Crim R 286 R v Matovski (1989) 15 NSWLR 720 R v Steffan (1992) 30 NSWLR 663 Regina v Cox [1999] NSWCCA 229 Slotboom v Regina [2013] NSWCCA 18 Category: Procedural and other rulings Parties: Natasha Jane Robinson (Applicant) Regina (Respondent) Representation: Counsel: Mr Steven Boland Mr Eric Balodis Solicitors: Ms Jessica Caligiore, Blair Criminal Lawyers Office of the Director of Public Prosecutions File Number(s): 2014/272919 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 25 May 2016 Before: Buscombe J File Number(s): 2014/272919 Judgment (EX TEMPORE, REVISED) 1. JOHNSON J: The Court is in a position to give judgment. The first judgment will be given by Justice Fagan. 2. FAGAN J: This is an application by an accused person under s 5F(3)(a) Criminal Appeal Act 1912 (NSW) for leave to appeal against an interlocutory order of his Honour Judge Buscombe sitting in the District Court at Penrith. The order was made on 25 May 2016. It was that the listing of the trial of the applicant to commence 30 May 2016 be vacated. The order had been sought by the Crown over opposition of the applicant. The ground for the Crown seeking deferral of the trial was that an important medical expert witness was unavailable on the date fixed. 3. The applicant has been indicted on four counts which arise out of the severe physical abuse of a four year old boy between 10 and 26 May 2014. One count is of detaining the child for advantage contrary to s 86(2)(a) Crimes Act 1900 (NSW). The others are of assaults occasioning actual bodily harm (s 59) and recklessly inflicting grievous bodily harm (s 35). The applicant has made it clear she will not dispute the fact that the boy was physically abused but will deny that she was in any way involved in the abuse or responsible for it or even present when it occurred. 4. The assaults upon the boy took place whilst he and his mother resided with the applicant at her home in Blackett in the western part of Sydney. Also living in the house were the applicant's three children aged 9, 6 and 2 at the time and her male friend Colin Taggart. The applicant was pregnant with a fourth child at the time the offences are alleged to have occurred. 5. Taggart was charged jointly with the applicant. To all of the counts which the applicant faces Taggart has pleaded guilty. The Crown case is that the applicant herself joined with Taggart in physical assaults upon the boy and encouraged Taggart in his violent actions towards him. 6. Doctor Anna Stachurska examined the boy at Westmead Children's Hospital the day after his admission on 27 May 2014. She has signed a 23 page report documenting his extensive injuries and stating her opinions as to their likely cause. 7. The applicant's counsel informed his Honour that the part of the report which contains solely the doctor's medical assessment, pp 8 – 22, with the exception of some hearsay on p 15, could be tendered without objection. The Crown informed his Honour that it wished to call the doctor to elaborate her observations and opinions orally and to explain them and to respond to any factual scenarios regarding the circumstances of the injuries being sustained which may emerge in the course of the trial – for example, by way of factual propositions being put to Crown witnesses or by descriptions of events being given by witnesses at variance with their proofs of evidence and at variance with what the Crown expects them to say. 8. This Court has said that it should be reluctant to interfere with the discretionary decision of a trial judge on an adjournment application: Slotboom v Regina [2013] NSWCCA 18 at [37]; R v Alexandroia (1995) 81 A Crim R 286 at 290. These were both cases where a defence adjournment application was refused. 9. It has also been said in this Court that leave under s 5F(3)(a) is only to be granted "where the decision is attended by sufficient doubt to warrant the matter being argued on appeal: R v Steffan (1992) 30 NSWLR 663 at 644 – 645; or where the interests of justice otherwise require the intervention of the court: Matovski (1988) 15 NSWLR 720 at 723": see Regina v Cox [1999] NSWCCA 229 at [11]. 10. His Honour's decision was made in the exercise of a broad discretion and appellate review of it would have to be in accordance with the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 – 505. 11. The proposed grounds, if leave were granted, are two. The first is that his Honour's decision "was not open on the evidence before the court." In oral argument for the applicant before the Court today the consideration concentrated upon was the question of whether the doctor's oral evidence was really required in order properly to present the Crown case. His Honour considered the importance to the jury of hearing oral evidence from the doctor. In doing so his Honour, appropriately, had regard to and gave considerable weight to the submissions of the Crown's legal representative. His Honour rightly recognised that the trial of the applicant, like any trial, would not take place according to a script and that it would be important to the Crown to have available the examining doctor to give opinions on factual scenarios that might emerge in the course of the trial. That manner of describing what his Honour took into account is my own paraphrase of his Honour's reasons, which in this respect appear at the second page of his Honour's judgment. There his Honour recognised that it would very difficult "to come to a firm conclusion as to whether or not the Crown case could be adequately presented without the actual presence of the doctor." His Honour came to an affirmative view on this and concluded that the Crown ought to have the opportunity to call the doctor. 12. Whilst I accept the good faith of the submissions put to his Honour and repeated to this Court by the applicant's counsel, nevertheless he could not give a reliable assurance that there would be no development in the course of the trial which would call for medical opinion beyond that which is already stated in the report of the doctor. Counsel in his position, however carefully he may anticipate how he will run his client's case, could rarely if ever give a reliable assurance on such a matter. 13. It appeared from counsel's submissions in this Court that ground 1 of the proposed appeal would be sought to be made out on the basis that the decision to grant the adjournment was not open to his Honour because it was not open to him to form the view that the doctor's evidence in oral form would become important to the presentation of the Crown case. I do not accept that it can be shown his Honour's decision was not open to him upon that basis. 14. Otherwise his Honour took into account all considerations which appear to have been material to the decision. He considered the seriousness of the charges, the fact that the trial date had been fixed in August 2015 and that it appeared the Crown had not acted in a sufficiently timely and decisive manner to secure the attendance of the medical witness. 15. A further consideration taken into account was the adverse effect upon the applicant of the delay of five months to the next available date, being 31 October, 2016. In that respect his Honour weighed up the fact that the applicant's bail conditions do not permit her to have custody of her children, of whom there are now four, whilst on conditional liberty. His Honour was satisfied that that factor was not decisive in the applicant's favour against the Crown's adjournment application. 16. There is no indication that if leave should be granted the applicant would be able to identify any additional matter which should have been taken into account but was overlooked by his Honour or that his Honour had regard to any irrelevant matters. 17. On the applicant's arguments there appears no realistic prospect that if the proposed appeal were fully ventilated it could be demonstrated that the decision was simply not open and that, even in the absence of specific identifiable fault, the decision was so unreasonable that it did not constitute a proper exercise of the discretion. 18. I would propose that leave be refused for the applicant to appeal on ground 1. 19. The second ground proposed to be raised is that his Honour failed to afford procedural fairness. This fell into two parts. The first is that it was said his Honour "set a precondition to the grant of an adjournment – that the respondent persuade the court that viva voce medical evidence was necessary in the conduct of the trial" and then granted the adjournment even though this precondition had not been met. 20. The formulation of this ground is taken from the terms of some of his Honour's exchanges with counsel in the course of the argument. It is unsound to rely upon such exchanges as constituting the first instance judge's reasoning. In this case what his Honour exchanged with counsel was merely part of the development of his Honour's understanding of the argument. 21. I would not be satisfied that there was any setting of a "precondition" by his Honour. The Crown sought to persuade the learned judge that the oral evidence of the doctor was necessary. What his Honour did was to ascertain whether, realistically from the Crown's point of view, it was prudent and preferable to the proper presentation of the case, on important charges, that the doctor be available. His Honour satisfied himself that that was shown and took it into account in exercising his discretion. 22. The second part of ground 2 is that it is said that there was a failure to afford procedural fairness because the applicant's counsel was refused a right to be heard in response to submissions of the Crown. The course of argument was that Crown counsel presented her arguments first in support of the application for an adjournment, as the Crown was the moving party. His Honour received submissions in response from the applicant's counsel and then permitted the Crown to make some reply. There was no right to further reply by the applicant's counsel after that. His Honour did not deny a fair hearing to the applicant by declining the applicant's counsel's request that he be heard yet further in a reply to a reply. 23. His Honour was dealing with this matter in the course of a busy short matters list being conducted in the Penrith District Court. He was dealing with it, together with other short matters, in the context that a trial from the preceding week had carried over into the list. His Honour heard the Crown's application late in the afternoon to suit the availability of the accused's counsel, commencing at 3.30pm and concluding at 4.30pm. The transcript shows full opportunity for argument on both sides with respect to all matters which could conceivably be relevant and could bear on the adjournment application. 24. Therefore it appears to me that there is no sufficient prospect of any aspect of ground 2 being upheld. Consequently I would propose that leave be refused with respect to that ground and, therefore, with respect to the entire application. 25. I would add that for my own part I would endorse his Honour Judge Buscombe's observations that the Crown practice, if it be a practice, of issuing subpoenas only 21 days before the date fixed for trial is inadequate and that reliance on earlier telephone calls and letters to prospective witnesses asking them to save the date is likely to be ineffectual. 26. Subpoenas appear not to have been served until about 9 May 2016 for a trial commencing on 30 May 2016 in this case. If this is not a practice but simply something that occurred ad hoc in relation to this particular trial, in any event it is an inadequate approach to securing the attendance of witnesses. 27. This failure to issue subpoenas in a timely manner is inconsistent with the objectives of pre-trial preparation of criminal proceedings, including optimisation of efficient preparation to secure the conduct of trials in a timely manner, as prescribed in s 139 and following of the Criminal Procedure Act 1986 (NSW). 28. I respectfully agree with his Honour that early receipt of a subpoena by a witness would be more likely to bring home that it is important to reserve and be available for a date fixed for trial. Service of subpoenas soon after a trial date is fixed would be an appropriate practice. 29. For these reasons I propose that leave be refused. 30. JOHNSON J: I agree with the order proposed by Justice Fagan and his Honour's reasons for making that order. 31. I wish to make some additional observations. The primary judge gave careful attention to the issues raised on the adjournment application at the end of a very busy list at the Penrith District Court. Error has not been demonstrated in his Honour's exercise of discretion to grant the adjournment. 32. I support the primary judge's concern about the apparent Crown practice of late issue of subpoenas to Crown witnesses in advance of trial. If subpoenas are not served promptly after a trial date is fixed, problems arise which may affect the efficient and timely progress of trials in the District Court. That Court has a very heavy workload, and it is of considerable importance that subpoenas issue and be served well in advance of trial. 33. In the course of his Honour's judgment granting the adjournment, his Honour observed: "That practice of issuing subpoenas so late in the day in my view must change. This is not the first such application I have had in recent months where this has been the position." 1. I endorse his Honour's concern in this respect, noting his Honour's observations that this was not an isolated case. 2. WILSON J: I also agree with the orders proposed by his Honour Justice Fagan. I agree with the reasons that his Honour gave and the observations that his Honour made with respect to the Crown's obligation to secure the attendance of witnesses to be called in the Crown case with expedition. 3. JOHNSON J: The order of the court will be that leave to appeal is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2020