Citation: R v GSR (2) [2011] NSWDC 16
Court: District Court of New South Wales
Date: 10 February 2011
Judge: GD Woods QC DCJ
Background
The accused was arraigned in November 2010 on two counts: maliciously inflicting grievous bodily harm (count 1) and excising the clitoris of the complainant contrary to section 45 of the Crimes Act 1900 (count 2). During the trial, the indictment was amended twice: first, to add a missing statutory element to count 2, and second, to delete count 1 after the judge ruled the two counts were effectively duplicitous (meaning they overlapped impermissibly in a single indictment).
The jury could not reach a verdict on count 2 and was discharged on 25 November 2010. The accused was granted continuing bail and the matter was relisted for a fresh trial from 14 February 2011.
When the matter returned to court, the accused elected trial by judge alone under section 132 of the Criminal Procedure Act 1986. The Crown withheld consent. The central question was whether amended provisions of section 132, which gave the court power to override the Crown's veto, applied to these proceedings.
Legal Issues
- Whether the criminal proceedings had "commenced" before 14 January 2011, which would determine which version of section 132 of the Criminal Procedure Act applied.
- Whether the deletion of count 1 during the first trial meant count 1 could only be revived by a new indictment, making the new section 132 applicable to that count.
- Whether the court had power to amend the existing indictment to restore count 1 and sever count 2.
- What the mode of trial should be for the retrial.
Decision
Issue 1: Which version of section 132 applies?
The Courts and Crimes Legislation Further Amendment Act 2010 substituted a new version of section 132, effective 14 January 2011, allowing the court to override the Crown's veto of a judge-alone election where the interests of justice required it. The old version contained no such power. A transitional provision preserved the old section for proceedings "commenced" in the District Court before 14 January 2011. The critical question was therefore whether the present proceedings fell within that transitional protection.
Issue 2: Were proceedings already "commenced" before 14 January 2011?
The court accepted the Crown's argument, drawing on GG v R [2010] NSWCCA 230 and section 130 of the Criminal Procedure Act, that criminal proceedings on indictment commence upon arraignment. The accused was first arraigned on 1 November 2010. Nothing that occurred thereafter, including the indictment amendments, the deletion of count 1, or the jury's inability to agree, brought those proceedings to a conclusion. The court held that none of the three recognised means of concluding proceedings identified in R v Howard (1992) applied: there had been no verdict, no guilty plea, and no nolle prosequi.
Issue 3: Was count 1 "forensically dead" requiring a fresh indictment?
The accused's senior counsel argued that because count 1 had been struck from the indictment mid-trial, it could only be re-agitated by a new ex officio indictment, making the new section 132 applicable to that count from its commencement. The court rejected this argument. It found that the original indictment retained legal force throughout. The deletion of count 1 was an amendment under section 21 of the Criminal Procedure Act, not a termination of the proceedings. The indictment, even as amended, remained a live instrument from its originating presentment in November 2010.
Issue 4: Crown's application to amend the indictment
The court allowed the Crown's application to restore count 1 to the indictment and to sever count 2 for separate trial. It found that the power to amend under section 21 of the Criminal Procedure Act survived the first jury's failure to agree. There was no unfair prejudice to the accused, who was well aware of the case he faced and had already met it once at trial.
Orders Made
- Application for trial by judge alone refused.
- Indictment amended by restoring count 1 in its original form.
- Count 2 severed and ordered to proceed by way of separate trial, with its ultimate fate reserved for further argument.
- Trial to proceed before a judge and jury of twelve.
Key Takeaways
- The District Court confirmed that criminal proceedings on indictment in the District Court "commence" upon arraignment, consistent with GG v R and section 130 of the Criminal Procedure Act 1986.
- A transitional provision preserving the old section 132 applied here because arraignment had occurred before the amending legislation took effect, meaning the court had no power to override the Crown's veto of a judge-alone election.
- Amendments to an indictment during trial, including the deletion of a count, do not bring the underlying proceedings to a conclusion and do not restart the clock for determining when proceedings "commenced."
- Under the old section 132, the Crown's refusal of consent to a judge-alone trial was an absolute bar: the court had no discretion to override it.
- The power to amend an indictment under section 21 of the Criminal Procedure Act persists after a hung jury, and restoring a previously deleted count by amendment does not require the presentation of a fresh or ex officio indictment where no unfair prejudice results.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986
- Courts and Crimes Legislation Further Amendment Act 2010
Cases
- GG v R [2010] NSWCCA 230
- R v Howard (1992) 29 NSWLR 242
- R v Taylor [2003] NSWCCA 194