R v Sheard; R v Bennis; R v Welford

1. [1]

   On 7 June 2022, a jury of 15 was empanelled in the trial of Emmett Sheard, Matthew Bennis and Luke Welford. Mr Sheard is charged with the murder of Michael Black on 22 April 2020. Mr Bennis and Mr Welford are charged with being an accessory after the fact to an offence contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), namely, the wounding of Mr Black by Mr Sheard with intent to cause grievous bodily harm.

2. [2]

   On 4 July 2022, when the Crown case had almost concluded, the Crown Prosecutor tested positive for COVID-19 and the trial was adjourned for one week. At that time counsel for Mr Bennis and Mr Welford made release applications under s 49 of the Bail Act 2013 (NSW). The Crown was able to appear in relation to those applications by way of audio-visual link. The applications were heard before me on 5 July 2022.

3. [3]

   Both Mr Bennis and Mr Welford face a maximum penalty of 5 years’ imprisonment if convicted. As at the date of the release applications, Mr Welford had already spent 2 years, 1 month and 7 days in custody on remand and Mr Bennis had spent almost 10 months on remand, solely in relation to the present charge.

4. [4]

   On 5 July 2022, I released both accused on very strict bail conditions. I advised them both that, given the stage of the trial, if either of them failed to appear the trial would proceed in their absence.

5. [5]

   The trial was then adjourned for three days so that the Crown Prosecutor could conclude his COVID-19 isolation. When the trial resumed on 11 July 2022 there was no appearance by Mr Bennis. Enquiries directed through the officer-in-charge Detective Sergeant David Lawler (“the OIC”) revealed that Mr Bennis had failed to report to police, had potentially breached an apprehended violence order (“AVO”) and was not at the premises where he was bailed to reside.

6. [6]

   Counsel for Mr Bennis, Mr Norrie, initially indicated to the Court that his instructions were that Mr Bennis was on his way to court, but as the day wore on it became clear that was not the case. In fact, Ms Butler, Mr Norrie’s instructing solicitor, had telephoned the residence where Mr Bennis was bailed to reside and the persons there, noticing that Mr Bennis was not at home, had assumed that he was on his way to court.

7. [7]

   Mr Norrie made an application that the trial be adjourned until the following day, 12 July 2022, for him to consider his ethical obligations. The Crown did not oppose that application. Mr Norrie foreshadowed that if Mr Bennis did not appear the following day, he may need to seek leave to withdraw from the trial. He indicated that he had received advice from senior counsel to the effect that if Mr Bennis was not apprehended overnight, he could no longer appear in the trial as he did not have instructions to appear in Mr Bennis’ absence.

8. [8]

   I issued a bench warrant for the arrest of Mr Bennis that day, 11 July 2022.

9. [9]

   On the following day, there was still no appearance by Mr Bennis. I raised with Mr Norrie the issue of his continued appearance in the trial. Mr Norrie indicated that he did not require any further instructions from Mr Bennis given the stage the trial had reached. The Crown case against Mr Bennis relies almost entirely on CCTV and handheld-camera footage. Mr Norrie confirmed that he had instructions that Mr Bennis did not propose to give evidence at trial, and he had no questions for the OIC, who was the only witness in the Crown case yet to be cross-examined. Mr Norrie also accepted that, on reflection, it would be unlikely he (or counsel generally for that matter) would ever receive specific instructions to appear in the absence of an accused person, in that Mr Bennis is unlikely to have foreshadowed to his counsel that he intended to abscond. Mr Norrie also accepted that it would be in the best interests of the Court and Mr Bennis were he to continue to appear, but he was mindful of the advice he had received from senior counsel.

10. [10]

    As at that date, 12 July 2022, it was anticipated that Mr Bennis would be apprehended before the trial concluded. On that basis and given the undesirability of disrupting the murder trial against Mr Sheard further, I refused Mr Norrie leave to withdraw from the trial that day and ordered that the trial continue in Mr Bennis’ absence. I did this in accordance with the principles set out in Jamal v R [2012] NSWCCA 198 and Williams v R [2012] NSWCCA 286, which Mr Norrie indicated he had read. I considered that if Mr Norrie withdrew and Mr Bennis was apprehended the following day, further delay would be caused to the joint trial which had already been delayed on a number of occasions for COVID-related reasons.

11. [11]

    When the jury returned to court on 12 July 2022, I instructed them that they were not to speculate about the absence of Mr Bennis and indicated that his interests were being represented by Mr Norrie and Ms Butler.

12. [12]

    On 13 July 2022, by which time Mr Bennis had still not been apprehended, I confirmed with Mr Norrie that I was maintaining my refusal of leave to withdraw but indicated that he should bring any new information to my attention, especially anything relevant to his ethical position. He indicated he was content to continue to appear. The trial proceeded.

13. [13]

    On 21 July 2022, by which time Mr Bennis had still not been apprehended and I was about to conclude my summing up, I confirmed with Mr Norrie his understanding of the basis for his continued appearance in the trial. He advised that he considered his retainer to be terminated but was continuing to appear in the role of amicus curiae to assist the Court. I indicated at that time that I would provide reasons for adopting the course I did in relation to Mr Bennis’ absence. My reasons are as follows.

Consideration

1. [14]

   It is well settled that although an accused person has the right to be present at his trial or sentence, he or she can waive that right.

2. [15]

   In Lawrence v The King [1933] AC 699, Lord Atkin, delivering judgment for the Privy Council, said at 708:

3. [16]

   This requirement of a fair trial was considered by the Court of Criminal Appeal (Begg, Lee and Cantor JJ) in R v McHardie [1983] 2 NSWLR 733 (“McHardie”). That appeal concerned a joint trial of two accused persons in which one of them had escaped from Parramatta Gaol after 13 days of proceedings and thereby absented himself from the trial, which proceeded in his absence. The Court observed this at 739:

4. [17]

   The Court also extracted R v Cornwell [1972] 2 NSWLR 1 at 3 (Jacobs JA, with whom Manning JA and Brereton J agreed) at 741 as follows:

5. [18]

   The Court concluded the following at 742:

6. [19]

   The Court also found no error in the way the trial judge had exercised that discretion, putting forward the following matters as relevant to its exercise:

7. [20]

   Relevantly to the present case, in McHardie, when the trial judge ordered the trial to proceed in the absence of one of the accused, on that day, his counsel withdrew from the trial. The next day, however, counsel informed the Court that he had been instructed by the Legal Aid Commission that it had reconsidered its opinion, and that he would continue to represent Mr McHardie in his absence (at 744). No objection was taken to that course, and no complaint was made of it on appeal.

8. [21]

   Two more recent decisions are Jamal v R [2012] NSWCCA 198 (“Jamal”) and Williams v R [2012] NSWCCA 286 (“Williams”). Mr Norrie indicated that he had read both of those decisions before forming the opinion that he could remain in the matter (as amicus).

9. [22]

   In Jamal, a view had been conducted under s 53 of the Evidence Act 1995 (NSW) in the absence of the accused but in the presence of his counsel. On appeal against conviction to this Court, Hidden J (with whom McClellan CJ at CL and Rothman J agreed) accepted the accused’s essential right to be present during trial expressed in Lawrence as well as the qualifications on that right discussed in McHardie.

10. [23]

    In Williams, the accused “had a complete meltdown” during her cross-examination by the Crown prosecutor. The trial judge adjourned proceedings to allow her to see a doctor, accompanied by her mother and solicitor. Her Honour warned the accused that the trial would proceed in her absence were she to abscond. The accused did in fact abscond. The trial judge refused an application to discharge the jury and ordered that the trial proceed in the accused’s absence. What happened next is described at [82]-[85] as follows:

11. [24]

    The accused was convicted in her absence and once apprehended, appealed against her conviction. She argued on appeal that the trial judge had erred in ordering that the trial proceed in her absence. R A Hulme J (with whom Basten JA and Adams J agreed) rejected this ground, citing McHardie and Jamal. His Honour continued at [94]-[96]:

12. [25]

    In Williams, the Crown submitted on appeal that it was relevant to the trial judge’s exercise of discretion to continue the trial that the accused’s counsel remained in the matter. The “position of counsel” after the accused absconded was also relevant to the operation of r 4 of the Criminal Appeal Rules. Adams J at [18]-[20] said that “the applicant’s conduct [in absconding] necessarily terminated the retainers of both her solicitor and counsel”. Further, “[i]t was reasonable … [and] quite proper for Mr Carty to have continued in the role of amicus curiae (though he was by no means bound to have done so) in respect of the appropriate disposition of the proceedings”. However, his Honour expressed concern about the jury’s perception of the absconder’s counsel:

13. [26]

    I have considered these obiter observations by Adams J and, with respect to his Honour, it is not clear to me that there is any requirement to explain to a jury the basis upon which counsel continues in the matter. It seems to me that such an explanation would defeat the purpose of directing the jury that they should not speculate as to why an accused was no longer present at trial. Neither of the other two judges in Williams agreed with his Honour on this issue. R A Hulme J stated the following at [55]:

14. [27]

    Finally, Basten JA made the following observation at [3]:

15. [28]

    Putting to one side the issue of the position of counsel, the principles derived from the decisions I have referred to above have been followed in a number of cases including: R v Ali [2017] ACTSC 366; R v Warwick (No.26) [2018] NSWSC 1079 (at [20]-[30] per Garling J); R v WE (No.19) [2020] NSWSC 1569 (at [12]-[13] per Bellew J); and Marsh v Mushkin (No 3) [2021] ACTSC 182.

16. [29]

    With these principles in mind, I was satisfied that by his abscondence Mr Bennis waived his right to be present at his trial, especially in circumstances where I had put him on notice that he would be tried in his absence should he fail to appear. I was also satisfied that I should exercise my discretion to order the trial to proceed. This course was not opposed by the Crown or any other counsel.

17. [30]

    It is to be noted that, unlike Williams, in the present case no application was made to discharge the jury as a result of Mr Bennis’ actions. Mr Bennis is one of three co-accused in this trial. One of his co-accused, Mr Sheard, is on trial for murder and bail refused. At the point that Mr Bennis absconded, the trial had proceeded for five weeks.

18. [31]

    Another way in which this trial differed from that in Williams is that Mr Norrie expressly raised for the record the basis upon which he continued to appear. The reason that I refused him leave to withdraw from the trial on 12 July 2022 was that it was anticipated (overly optimistically in hindsight) that Mr Bennis would be quickly apprehended. A further consideration was to minimise any prejudice to Mr Sheard and Mr Welford, who were being jointly tried. If Mr Norrie had withdrawn from the trial, it seems to me it could not have proceeded any further against Mr Bennis which raised the issue of the trial against Mr Bennis being taken out of their charge (resulting in the need for a new trial against Mr Bennis once he was apprehended).

19. [32]

    A further unusual feature of this trial is that by now, 26 July 2022, Mr Bennis and Mr Welford have stood trial in the Supreme Court for over seven weeks on a charge with a maximum penalty of 5 years’ imprisonment. The criminal conduct alleged by the Crown in relation to Mr Bennis is depicted in CCTV and handheld-camera footage. It is common ground that it depicts Mr Bennis, at a time after Mr Sheard stabbed Mr Black in Cell 4 at Parklea Correctional Centre on 22 April 2020, wearing Mr Sheard’s Nike shoes out of the cell before he was searched, and the shoes seized. The Crown case is that he did so to assist Mr Sheard conceal his involvement in the stabbing of Mr Black. At other times after the incident the footage depicts Mr Bennis standing at the front of cell whilst a correctives officer was filming the cell. The Crown case is also that Mr Bennis positioned himself to obstruct the officer from filming the goings-on inside the cell.

20. [33]

    The prospect of court resources being diverted to a new and separate trial against Mr Bennis for these actions, in circumstances in which the Crown case against him was effectively concluded and he had no case to present, was a further matter I had regard to when ordering the trial proceed in his absence.

21. [34]

    A final matter is that I was satisfied that any prejudice to Mr Bennis arising from the jury remarking on his absence from the dock could be cured by directions that they not speculate about his absence, nor draw any adverse inferences, and that Mr Norrie and Ms Butler were present protecting his interests. I gave such directions on 12 July 2022 when the trial resumed, and again on 21 July 2022 during my summing up.

22. [35]

    For these reasons, and in the absence of any application that I discharge the jury, the trial proceeded against Mr Bennis in his absence. Mr Norrie and Ms Butler remained as amici curiae to assist the Court.

23. [36]

    Accordingly, I made the order that the trial of Emmett Sheard, Matthew Bennis and Luke Welford is to proceed in the absence of the accused Bennis.