R v Cunningham; R v Moarefi (No 5)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cunningham; R v Moarefi (No 5)
Citation:	[2021] ACTSC 195
Hearing Date:	8 July 2021
DecisionDate:	8 July 2021
Before:	Burns J
Decision:	See [2]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application in proceeding – application to discharge the jury
Parties:	The Queen (Crown) Christopher Cunningham (Accused) Benjamin James Moarefi (Accused)
Representation:	Counsel M Dyason (Crown) T Jackson (Accused) A Haban-Beer and F Livingstone Clark (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) Boxall Legal (Accused)
File Numbers:	SCC 214 of 2019; SCC 215 of 2019; SCC 270 of 2019

BURNS J:

Members of the jury, matters have arisen which mean that the trial cannot continue at this time. One of the witnesses who is to be called by the Crown has provided further information to the prosecutor and that information has been passed on to each of the accused. That information is a matter of some potential significance in relation to the allegations against each of the accused. Steps will need to be taken by the accused persons as a result of that information coming to light.

The consequence is that the trial will not be able to proceed within the foreseeable future and rather than adjourning the trial in the hope that we might be able to restart next week, which frankly I think is a forlorn hope, I am going to take the step which I think is the lesser of two evils and discharge you as a jury at the present time. If the Director of Public Prosecutions determines to proceed with the charges, the accused will have to be retried at a later date.

I regret the inconvenience that this has caused but I see no other option at the present time than to proceed in this way, so you are now discharged and you may go.

I certify that the preceding three [3] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date:

CaseChat Overview and Summary

This case involves an application to discharge the jury in a criminal proceeding heard in the Supreme Court of the Australian Capital Territory. The two accused, Christopher Cunningham and Benjamin James Moarefi, were facing charges in three separate matters (SCC 214 of 2019, SCC 215 of 2019, and SCC 270 of 2019). The Crown was represented by the ACT Director of Public Prosecutions, while the accused were represented by Legal Aid ACT and Boxall Legal. The decision was handed down by Justice Burns on 8 July 2021.

The primary legal issue before the court was whether to discharge the jury due to new information provided by a Crown witness that had not been available to the accused at the time of the trial. This information was potentially significant to the allegations against the accused. The court had to balance the rights of the accused to a fair trial against the necessity of discharging the jury to ensure a fair and just outcome.

Justice Burns decided to discharge the jury, as the new information provided by the witness necessitated steps that the accused would need to take. This development made it unfeasible to continue the trial in the foreseeable future. The judge considered discharging the jury to be the lesser of two evils, as restarting the trial seemed unlikely in the near term. The accused would be retried if the Director of Public Prosecutions decided to proceed with the charges.

The court's decision resulted in the jury being discharged, and the trial was unable to proceed. The accused would be retried if the Crown decided to continue with the charges.

CaseChat Overview and Summary

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