Citation: R v Kerry Forrest [2014] NSWSC 1684
Court: Supreme Court of New South Wales
Date: 12 March 2014
Judge: Hidden J
Background
The accused faced a trial on what the Crown characterised as a premeditated murder. She was seriously ill, suffering from a tumour that caused chronic pain, toileting difficulties, fatigue, and a need for frequent medication. Her condition required her to use a wheelchair and made standard court attendance highly disruptive.
The accused applied for trial by judge alone under s 132 of the Criminal Procedure Act 1986. The Crown did not consent to that application. Hidden J had previously refused a permanent stay of proceedings in May 2013, but the present application raised a different question: whether the practical burdens of the accused's illness on the conduct of a jury trial were sufficient to make a judge-alone trial in the interests of justice.
Legal Issues
- Whether the accused's serious illness and its practical effects on the progress of trial justified dispensing with a jury under s 132 of the Criminal Procedure Act 1986
- Whether the case involved factual issues requiring assessment by objective community standards, which under s 132(5) could be a basis for refusing a judge-alone application
- Whether the out-of-time election for trial by judge alone should be permitted to proceed
Decision
Hidden J accepted that the accused's condition created substantial and unpredictable disruptions to the ordinary conduct of a jury trial. Her toileting difficulties after meals, pain caused by transport in a wheelchair-accessible vehicle, the likelihood of shortened and variable sitting hours, and the possibility of days when she could not attend court at all meant that jurors could not be given any reliable estimate of their commitment. Regular and unexpected interruptions were likely throughout a trial already estimated at four to five weeks.
The Crown submitted that a jury could be managed through appropriate directions: explaining the accused's illness, reassuring jurors that her appearance was explained by her condition, and dealing with likely interruptions. Hidden J acknowledged the force of these submissions but found they did not address the core problem. The uncertainty and unpredictability of the trial's progress would impose an unacceptable burden on a jury, independent of any sympathy or prejudice considerations.
On the s 132(5) issue, the Crown argued that the trial involved behaviour calling for assessment against ordinary community standards, including the accused's conduct around the time of death and evidence of dishonesty. Hidden J acknowledged the argument had force but declined to resolve the scope of s 132(5) on this occasion, finding the decisive factor to be the impracticable progress of trial rather than the character of the factual issues.
The election had been filed out of time, but Hidden J granted leave for the application to proceed and ordered that the trial be conducted without a jury.
Orders Made
- Leave granted for the application for trial by judge alone to proceed, notwithstanding that the election was filed out of time
- Trial ordered to be conducted without a jury
Key Takeaways
- Under s 132 of the Criminal Procedure Act 1986, an accused may apply for trial by judge alone even without Crown consent, and a court may grant that application where it is in the interests of justice to do so.
- The unpredictability of an accused's day-to-day attendance, rather than jury sympathy or prejudice concerns alone, can constitute a sufficient basis for concluding that a jury trial would impose an unacceptable burden.
- Hidden J left open the scope of s 132(5), which provides that an application may be refused where the trial involves factual issues requiring assessment by objective community standards; the provision was raised but not decided.
- An out-of-time election for trial by judge alone does not necessarily defeat the application, as the court retains a discretion to grant leave for the application to proceed.
- Where medical evidence is unavailable due to legal aid funding constraints, a court may accept informal submissions from counsel based on instructions and observations from the instructing solicitor, provided those sources are reliable and the circumstances justify it.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 132
Cases
- R v Belghar [2012] NSWCCA 86, 217 A Crim R 1
- R v Dean [2013] NSWSC 661
- R v Forrest [2013] NSWSC 527
- R v King [2013] NSWSC 448