Citation: R v Gittany [2013] NSWSC 1503
Court: Supreme Court of New South Wales
Date: 14 October 2013
Judge: McCallum J
Background
An accused charged with the murder of a woman who fell from a residential balcony in July 2011 applied for an order that he be tried by a judge alone. His trial was listed to commence one week after the hearing of the application. The accused had already spent approximately $210,000 on the proceedings and had been refused legal aid, with an appeal to the Legal Aid Review Committee also disallowed.
Senior counsel for the accused indicated he had not yet been retained for the trial due to a shortage of funds. The accused contended that a jury trial, estimated at approximately six weeks, would exhaust his available funds well before its conclusion, whereas a judge alone trial, estimated at approximately four weeks, could proceed within his means.
The Crown formally opposed the application but, when the risk of a lengthy adjournment became apparent, indicated it would prefer a judge alone trial over that outcome.
Legal Issues
- Whether leave should be granted to make the application fewer than 28 days before the trial date, as required by section 132A of the Criminal Procedure Act 1986
- Whether section 131 of the Act creates a presumption in favour of trial by jury
- Whether the case involves a factual issue requiring the application of objective community standards under section 132(5), which would weigh against a judge alone order
- Whether adverse media reporting or the complexity of scientific evidence supported a trial by judge alone
- Whether the accused's inability to fund a jury trial, combined with the risk of an adjournment and the potential unavailability of a critical eyewitness, made it in the interests of justice to order a trial by judge alone
Decision
Preliminary: Leave to apply out of time
The court granted leave to make the application fewer than 28 days before trial. The application had been foreshadowed within the required timeframe at an earlier directions hearing, and the delay in formal filing was to accommodate Crown counsel's commitments. The Crown did not oppose the grant of leave (at [2]).
Issue 1: Whether section 131 creates a presumption in favour of jury trial
Following the Court of Criminal Appeal's unanimous decision in R v Stanley [2013] NSWCCA 124, the court held that sections 131 and 132 do not create a presumption in favour of trial by jury that an accused must rebut. The accused does, however, bear an evidentiary burden to raise material supporting the conclusion that a judge alone trial is in the interests of justice (at [8]-[9]).
Issue 2: Objective community standards under section 132(5)
The court accepted that the critical factual issue, whether the accused physically removed the deceased from the balcony, did not require the application of objective community standards. Accordingly, this consideration did not weigh against making the order (at [18]).
Issue 3: Adverse media reporting and scientific complexity
The court rejected both of these grounds. Media coverage did not go beyond what would be given in evidence, and juries are routinely directed to disregard such material (at [19]). The expert evidence on eyewitness memory was not so complex as to be beyond the understanding of a properly directed jury. The court also rejected the argument that a judge alone trial is preferable because it produces written reasons, noting that each mode of trial carries its own advantages and disadvantages (at [20]).
Issue 4: Legal representation, trial length, and the interests of justice
The court found it in the interests of justice to order a trial by judge alone. The accused had no further funds beyond those already held in his solicitor's trust account, and both legal aid applications had been refused (at [24], [26]). The court accepted experienced counsel's estimates that a jury trial would take approximately six weeks at a cost of approximately $370,000, against approximately four weeks and $280,000 for a judge alone trial (at [31]-[32]). There was a cogent basis for concluding that a jury trial would exhaust the accused's funds before its conclusion, leaving him unrepresented and providing a compelling basis for an adjournment under Dietrich v R (at [41]-[42]). A further significant consideration was that a critical eyewitness had communicated that he may be unavailable if the trial was adjourned, as he was due to travel permanently to America within the two-week window surrounding the trial date (at [39], [44]). The court also noted the interests of the deceased's mother, who had travelled from Canada for the trial, as a consideration of limited relevance (at [44]).
The court addressed the Crown's concern that the legal aid application may not have been made seriously. This concern was put to rest by the Legal Aid Review Committee's refusal of the appeal even after receiving all of the evidence placed before the court (at [46]).
Orders Made
- Application by the accused for trial by a judge alone granted.
Key Takeaways
- Following R v Stanley [2013] NSWCCA 124, the interplay of sections 131 and 132 of the Criminal Procedure Act 1986 does not create a presumption in favour of trial by jury; an accused bears an evidentiary burden to raise material supporting a judge alone order, but need not affirmatively rebut any presumption (at [8]-[9]).
- Under section 132(5), a case turns on whether the critical factual dispute requires the application of objective community standards. Where the central question is a purely factual one, such as whether an accused physically performed a particular act, this provision does not weigh against a judge alone order (at [18]).
- The risk that an accused will be left unrepresented at trial due to insufficient funds, with the attendant likelihood of an adjournment compelled by Dietrich v R, is a legitimate consideration capable of supporting a finding that a judge alone trial is in the interests of justice (at [41]-[44]).
- Potential unavailability of a critical prosecution witness if trial is adjourned is a material factor in the interests of justice analysis under section 132(4) (at [39], [44]).
- Adverse media reporting and a preference for written judicial reasons on complex expert evidence are not, of themselves, grounds for departing from the default of trial by jury, given that juries receive appropriate directions and each mode of trial carries its own advantages and disadvantages (at [19]-[20]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986, s 131; s 132 (4) & (5)i; s 132A
- Legal Aid Commission Act 1979, s 57
Cases
- R v Belghar [2012] NSWCCA 86; (2012) A Crim R 1
- R v Dean [2013] NSWSC 661
- Dietrich v R [1992] HCA 57; (1992) 177 CLR 292
- R v Fardon [2010] QCA 317
- R v Stanley [2013] NSWCCA 124