A year or two ago, in a case about which I can't say too much, we refused to adjourn a trial in which the principal witness had not turned up, as he had threatened to do some weeks before. Sometimes we think that a case needs to be put out of its misery, and this was one of them - it was going nowhere. The usual procedure is for the Crown to offer no evidence at this point. The Prosecutor, not at all pleased, shot to his feet and made an application to adduce hearsay evidence - the statement made by the missing witness. We saw that as an attempt to get round our decision and we refused to allow the application. The three of us were in agreement as was our clerk.
A few weeks later I heard that our decision was being appealed. We came second. We would have been quite entitled to refuse the hearsay application, but we should have given full consideration to to the criteria in the Act, and recorded our reasons.
That's fine, no hard feelings. Win some, lose some. You can imagine my reaction this week though, when we were faced with a near-identical situation, with a crucial witness being unavailable - a fact that had been known to the Crown for months, but one that they had failed to note in the file. So we refused to adjourn, and the prosecutor applied for permission to make a hearsay application. Determined to get it right this time we allowed the application and I made careful notes of the criteria that we had to consider. The defence then opposed the application, putting in his own interpretation of the law. We then had the clerk advise us in open court and went outside to consider. When we went back in (to refuse the application) I had half a sheet of carefully made notes of our reasons which I read out before passing them to the clerk to put on the file. Let's see how we get on this time.
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