R v Sheard; R v Bennis; R v Welford [2022] NSWSC 992

R v Sheard; R v Bennis; R v Welford [2022] NSWSC 992

Mr Bennis absconded while on bail after being expressly warned that the trial would continue in his absence if he failed to appear. By that conduct he waived his right to be present. Given the advanced stage of the five-week joint trial, the near completion of the Crown case against him, his lack of evidence to call, the risk of prejudice to his co-accused and disruption to the murder trial, the absence of any application to discharge the jury, and the availability of jury directions to avoid speculation or adverse inference, the Court exercised its discretion to continue the trial in his absence and refused counsel leave to withdraw.

Jurisdiction
Australia
Judgment Date
26 July 2022
Procedural Posture
Criminal Procedural Ruling in a Joint Trial / During Trial, After One Accused Failed to Appear While on Bail and Before Conclusion of the Trial
Outcome
The trial of Emmett Sheard, Matthew Bennis and Luke Welford was ordered to proceed in the absence of Matthew Bennis. The addendum records that on 28 July 2022 the jury returned a verdict of not guilty in relation to Matthew Bennis and the bench warrant was revoked.
Legal Topics
['trial in Absence of Accused' 'waiver of Right to Be Present at Trial' "exercise of Trial Judge's Discretion" 'joint Trial' 'absconding While on Bail' 'role of Counsel as Amicus Curiae' 'jury Directions']
['criminal Law' 'criminal Procedure'] ['trial in Absence of Accused' 'waiver of Right to Be Present at Trial' "exercise of Trial Judge's Discretion" 'joint Trial' 'absconding While on Bail' 'role of Counsel as Amicus Curiae' 'jury Directions']

Case Brief

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Procedural Posture

Criminal Procedural Ruling in a Joint Trial / During Trial, After One Accused Failed to Appear While on Bail and Before Conclusion of the Trial

Legal Issues

  1. 1 ['Whether Matthew Bennis, by failing to appear after being released on bail and warned that the trial would proceed in his absence, waived his right to be present at his trial.' 'Whether the Court should exercise its discretion to continue the joint trial in the absence of Matthew Bennis.' 'Whether counsel for Matthew Bennis should be permitted to withdraw or remain to assist the Court as amicus curiae.' "Whether any prejudice from Matthew Bennis's absence could be cured by directions to the jury."]

Ratio Decidendi

Mr Bennis absconded while on bail after being expressly warned that the trial would continue in his absence if he failed to appear. By that conduct he waived his right to be present. Given the advanced stage of the five-week joint trial, the near completion of the Crown case against him, his lack of evidence to call, the risk of prejudice to his co-accused and disruption to the murder trial, the absence of any application to discharge the jury, and the availability of jury directions to avoid speculation or adverse inference, the Court exercised its discretion to continue the trial in his absence and refused counsel leave to withdraw.

Court Disposition

The trial of Emmett Sheard, Matthew Bennis and Luke Welford was ordered to proceed in the absence of Matthew Bennis. The addendum records that on 28 July 2022 the jury returned a verdict of not guilty in relation to Matthew Bennis and the bench warrant was revoked.

Orders

  • ['The trial of Emmett Sheard, Matthew Bennis and Luke Welford is to proceed in the absence of the accused Bennis.' 'A bench warrant for the arrest of Matthew Bennis was issued on 11 July 2022.' 'The bench warrant was revoked on 28 July 2022.']