R v Elmir (No. 2) [2018] NSWSC 338

Supreme Court New South Wales

Medium Neutral Citation: R v Elmir (No. 2) [2018] NSWSC 338 Hearing dates: 16 March 2018 Date of orders: 16 March 2018 Decision date: 16 March 2018 Jurisdiction: Common Law - Criminal Before: Davies J Decision: 1. Trial commencing 19 March 2018 vacated. 2. Stand proceedings into Arraignment List on 6 April 2018. Catchwords: CRIMINAL LAW – trial – application to vacate trial – new witness to be called by Crown – witness facing trial – need for witness's trial to be heard first – trial vacated Legislation Cited: Criminal Code (Cth) Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Crown Amin Elmir (Accused) Commissioner of the Australian Federal Police (Interested party) Representation: Counsel: P McDonald SC (Crown) G Scragg (Accused) T Glover (Interested party)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Lawyers Corp. Pty Limited (Accused) The Australian Government Solicitor (Interested party) File Number(s): 2016/384538

Judgment 1. On 6 October 2017 the present matter was fixed for trial before me by Johnson J for Monday the 19 March 2018 with an estimate of three weeks. I have conducted a number of directions hearings in this matter since that time. 2. At a directions hearing on the 14 March 2018 I was informed by the Crown that it was intended to call a new witness in the matter, and that the calling of that witness might necessitate an application to vacate the trial date. Such an application has come before me this morning. 3. The affidavit in support of the motion of the solicitor acting for the Commonwealth DPP discloses that certain events occurred in late 2017 that resulted in the new witness providing a statement to those on the prosecution side in the matter. That statement was ultimately finalised on the 6 February this year. It was not at that stage able to be made available to those acting for the accused until a number of matters involving security and other things had been attended to. It was because of those matters that the Crown Prosecutor was not able to inform me before 14 March that this witness would most certainly be called at the trial. 4. The affidavit of the solicitor from the CDPP informs me that the witness himself has been charged with a number of offences against the Commonwealth Criminal Code and that his trial on those matters is not to take place until August 2018. The affidavit makes clear that the Crown is not in a position to call that witness in the present trial until that witness has been dealt with at his trial, or in respect of any plea which might be entered in relation to it. 5. I have read a further affidavit, some of which I have directed be marked as confidential, which provides some summary of the evidence that that witness is likely to give. It seems clear that the evidence is of some significance in the trial. 6. Mr Scragg of counsel, for the accused, although desirous of the trial proceeding on Monday, realistically accepts that this will not be possible because the witness himself will not go to trial until a later date. 7. The need for that to occur seems to me to provide an insuperable difficulty for this trial proceeding next week, and for those reasons I will vacate the trial and direct that the proceedings be stood into the Arraignments List on the 6 April 2018.