The Queen v Danny Ferguson

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren AJ
• Judgment Date: 04 June 2015
• Neutral Citation: [2015] NTSC 35
• Date: 04 June 2015
• Docket Number: FILE NO: 21343913

[2015] NTSC 35

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT ALICE SPRINGS

Judgment of:

Mildren AJ

FILE NO: 21343913

Between:

The Queen

Plaintiff

and

Danny Ferguson

Defendant

REPRESENTATION:

Counsel:

Plaintiff: S Robson

Defendant: T Collins

R v Hayward [2001] QB 862 ; R v Jones (Anthony) [2003] 1 AC 1, followed

Kumar v R [2013] 3 NZLR 201 , referred to

Criminal Code s 361(4)

CRIMINAL LAW — Procedure — Trials — Trials in absentia — Where defendant voluntarily absents himself after the commencement of trial — Considerations when exercising discretion to proceed with trial in defendant's absence — Application of principles in R v Hayward [2001] QB 862

EX TEMPORE

REASONS FOR RULING

1 This is an application by the Prosecution to proceed with the trial in the absence of the accused, pursuant to s 361(4) of the Criminal Code.

2 The accused is charged with two counts of sexual intercourse without consent, arising out of incidents that occurred at Finke on 2 and 3 October 2013. He was also charged with one count of unlawfully assaulting the same victim on the same occasion with circumstances of aggravation, to which he pleaded guilty. The trial proceeded on Monday 1 June 2015. The accused was present and represented by Ms Collins of the Central Australian Aboriginal Legal Aid Service.

3 The particulars of the offences which the Crown alleges are that the accused inserted a torch into the anus of the complainant without her consent, and then forced her to fellate him.

4 The complainant gave evidence and was cross examined, and witnesses were called. The Prosecution called Dr Katrina Lloyd, who examined the complainant; Kerry-Anne Lennon, Kevin Ferguson, and Cinthia Campbell, who were all involved in arranging for the complainant to get assistance from the Police and the local clinic; and Sergeant Michael Swain, who interviewed the complainant at the clinic for the purpose of finding out the details of the complaint and arranged for the matter to be investigated by the Alice Springs CIB. A number of photographs and other exhibits were tendered, and at the time of this application, the Crown case was virtually completed.

5 On the third day of the trial, the accused was called and did not appear. Extensive enquiries were made by both the Prosecution and Defence counsel as to his whereabouts. Ms Collins informed the Court that she was unable to contact her client because his phone was switched off. Ms Collins had also spoken to some of the accused's family in Finke and was told that there was some trouble with his car. Ms Collins also spoke to an uncle, who thought that the accused was on his way to Court or at the Court already. The matter was adjourned for a short time to enable further enquiries to take place. Upon resuming, Ms Collins informed me that she had spoken with Peter Ferguson, who was unable to contact the accused. Enquiries also revealed the accused was not at the hospital; not in custody; and not in protective custody. I then issued a warrant for his arrest. The matter was adjourned until 2:00pm to see whether any new information would come to light. Nothing new arose and the matter was adjourned to the next morning.

6 I have now heard evidence from Detective Senior Constable Tim Easthope as to what further enquiries have been made. Without going into details – the enquiries have been extensive – the accused could not be located in or around Alice Springs, nor could he be located elsewhere. Mr Robson also provided information from the bar table that yesterday the accused withdrew $200 cash from a relative's bank account.

7 In light of the information before me, I find beyond a reasonable doubt that the accused has absented himself and voluntarily decided not to attend the trial.

8 The question now arises as to whether I should exercise my discretion to proceed with the trial in the absence of the accused.

9 In answering this question, I bear in mind the matters discussed by Rose LJ in R v Hayward. 1 Rose LJ indicated that the following matters should be used to guide the Court in the exercise of its discretion:

• ‘i. The nature and circumstances of the defendant's behaviour in absenting himself from the trial… [and] whether his behaviour was deliberate, voluntary, and as such plainly waived his right to appear;

• ii. Whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;

• iii. The likely length of such an adjournment;

• iv. Whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;

• v. Whether the defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;

• vi. The extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;

• vii. The risk of the jury reaching an improper conclusion about the absence of the defendant;

• viii. The seriousness of the offence which affects the defendant, victim, and public;

• ix. The general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;

• x. The effect of delay on the memories of witnesses…’ 2

10 Hayward was a case that is somewhat different to the matter before me, as the trial had not begun and no witnesses had been called. Additionally, most of the cases discussing Rose LJ's findings in Hayward similarly involved

situations where the accused did not appear at all. 3 Nevertheless, the matters that were referred to by Rose LJ are still of relevance. The question is the weight that is given to some of those matters, bearing in mind that this is a trial that has proceeded to the stage where the Prosecution case has almost concluded.

11 The First Consideration: I have already found beyond a reasonable doubt that defendant's behaviour was deliberate, voluntary, and as such, he has plainly waived his right to appear.

12 The Second Consideration: The matter has already been adjourned several times to allow for the defendant to be caught or present himself. This has not occurred.

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