Citation: R v McParland; R v Wingate [2011] NSWDC 264
Court: District Court of New South Wales
Date: 18 July 2011
Judge(s): Cogswell SC DCJ
Background
Two accused were charged with aggravated break and enter, committing a serious indictable offence in company. The Crown's case was largely circumstantial. Police had stopped both men near the scene of a break and enter at around 3:00am.
Following their arrest, each accused gave a record of interview to police. Those interviews contained what were described as inconsistent accounts of where they had been and why they were in the car together. Each man's admissions were, as a matter of law, admissible only against himself and not against the other accused.
Both defence counsel applied for a trial by judge alone order under s 132 of the Criminal Procedure Act 1986 (NSW). They argued that trying the matter without a jury would eliminate the risk that the jury would impermissibly use one accused's admissions against the other.
Legal Issues
- Whether it was in the interests of justice to make a trial by judge alone order under s 132 of the Criminal Procedure Act 1986 (NSW)
- Whether the case involved a factual issue requiring the application of objective community standards under s 132(5), which would have engaged a separate statutory consideration
- Whether any prejudice arising from the joint trial could adequately be addressed by judicial directions to the jury
Decision
Cogswell SC DCJ accepted that the case did not fall within the category of proceedings involving a factual issue that requires the application of objective community standards under s 132(5). Both defence counsel and the Crown agreed on this point. Nevertheless, the judge noted that the absence of that statutory consideration did not automatically favour a judge-alone trial.
The central question remained whether it was in the interests of justice to remove the jury. The defence argued that a jury may impermissibly treat one accused's inconsistent admissions as evidence against the other, and that the case against one accused was weaker due to his lesser connection to the alleged victim. The Crown did not oppose the grant of leave to make the application out of time, but submitted that careful directions would be sufficient to address any prejudice.
His Honour accepted the Crown's submission. Courts proceed on the assumption that juries follow judicial directions, and higher courts have consistently held that juries are capable of distinguishing between what evidence is admissible against each accused in a joint trial. His Honour was satisfied that clear directions about the permissible use of each accused's admissions would overcome any potential prejudice.
The applications were refused. His Honour identified the core question in the trial as a factual one well suited to jury determination: why two men were present at a particular location in the early hours of the morning, assessed against their respective explanations and the circumstantial Crown case.
Orders Made
• Applications refused
Key Takeaways
- The District Court reaffirmed that the interests of justice test under s 132 of the Criminal Procedure Act 1986 (NSW) involves a genuine discretion, and an application will not succeed merely because co-accused gave inconsistent records of interview.
- Where admissibility of admissions differs as between co-accused, a trial court's ability to give clear, targeted directions to the jury will generally be treated as a sufficient safeguard against impermissible use of that material.
- A trial by judge alone is not automatically warranted simply because a case falls outside the s 132(5) category involving objective community standards; that finding is a threshold observation, not itself a reason to grant the order.
- Refusing the applications, the court emphasised that determining why persons were at a particular place at a particular time, weighed against circumstantial evidence, is precisely the kind of factual question juries are equipped to resolve with appropriate directions.
- The assumption underlying jury trials is that jurors comply with judicial directions, and this principle carries significant weight when courts assess whether a joint trial produces unfair prejudice to any individual accused.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
Cases
No cases were cited in the judgment text.