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Supreme Court 19 July 2013

R v Ravindran

[2013] NSWSC 1006

Homicide
CRIMINAL LAW APPLICATION FOR JUDGE ALONE TRIAL

Citation: R v Ravindran [2013] NSWSC 1006
Court: Supreme Court of New South Wales
Date: 19 July 2013
Judge: Campbell J

Background

The accused stood trial in the Supreme Court charged with murdering his father. On the morning trial was set to commence, his solicitor lodged a notice of motion in chambers seeking leave to apply for a judge-alone trial (that is, a trial before a judge without a jury).

The application was made less than 28 days before the trial date, which under the Criminal Procedure Act 1986 (NSW) requires the court's prior leave before the substantive application can even be considered. The prosecution did not oppose either the grant of leave or the underlying application for a judge-alone trial.

The accused had provided a signed statement confirming he understood the effect of a judge-alone order and had received advice from two named counsel. The solicitor's affidavit explained that the timing of the application was caused by delays in receiving an expert forensic report from Professor Stephen Cordner, Director of the Victorian Institute of Forensic Medicine, who had been retained by the defence since May 2012.

  • Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 to make a late application for trial by judge alone
  • Whether, once leave was granted and the prosecution consented, the court retained any discretion to refuse the judge-alone order under s 132(2)
  • Whether s 132(5) and s 132(6) of the Act operated to affect the outcome in the circumstances

Decision

Campbell J found that the delay in making the application was satisfactorily explained by the late receipt of Professor Cordner's forensic report. The cause of death was a critical issue in the proceedings, and the report was necessary for counsel to properly advise the accused on which mode of trial was appropriate. The judge noted that none of the delays reflected a lack of forensic diligence on the part of the accused or his legal team. On that basis, leave to make the late application was granted.

Turning to the substantive application, the court held that once leave is granted and both the accused and the prosecution agree to trial by judge alone, s 132(2) of the Act requires the court to make a judge-alone order. The provision leaves the court no discretion in those circumstances.

The court also addressed two qualification provisions in the Act. Section 132(6) requires that the accused have received advice from an Australian legal practitioner about the effect of a judge-alone order. Campbell J was satisfied that condition was met based on the accused's signed statement. Section 132(5) was found not to apply because it only operates in conjunction with s 132(4), which is engaged only where the prosecution does not consent. As the prosecution had consented here, neither provision stood in the way of making the order.

Orders Made

  • Leave granted pursuant to s 132A of the Criminal Procedure Act 1986 to apply for trial by judge alone
  • Order made pursuant to s 132 that the accused be tried for murder by a judge alone, without a jury, commencing 29 July 2013

Key Takeaways

  • Under s 132A of the Criminal Procedure Act 1986 (NSW), a court may grant leave to make a late application for judge-alone trial where a satisfactory explanation for the delay exists, such as the belated receipt of a critical expert report needed for defence preparations.
  • Once leave is granted and both the accused and the prosecution agree to trial by judge alone, s 132(2) removes the court's discretion: the judge-alone order must be made.
  • Section 132(5) of the Act does not operate independently. It applies only where s 132(4) is also engaged, which arises only when the prosecution withholds consent.
  • The requirement in s 132(6) that the accused have sought and received advice from an Australian legal practitioner is a threshold condition, but can be satisfied by a signed statement from the accused confirming that advice was given and understood.
  • The Supreme Court treated the accused's delay as reasonable and not attributable to any failure in legal diligence, illustrating that explanations for lateness are assessed in light of the practical realities of expert evidence procurement.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132A

Cases
No cases were cited in the judgment.