Citation: R v Settree [2016] NSWSC 1028
Court: Supreme Court of New South Wales
Date: 27 July 2016
Judge: Campbell J
Background
The accused faced two counts of murder (the alleged killing of both his parents) and one count of possessing an unauthorised firearm. His jury trial was scheduled to commence on 27 July 2016.
The accused had previously elected for a judge-alone trial in February 2016, but the Crown had not consented at that time and the application did not proceed. On 26 July 2016, one day before trial, the accused signed a fresh election for a judge-alone trial. On this occasion, the Crown Prosecutor consented.
Because the fresh election was made fewer than 28 days before the trial date, the accused first required the Court's leave under s 132A of the Criminal Procedure Act 1986 (NSW) before the application could even be considered.
Legal Issues
- Whether leave should be granted under s 132A to make a late application for a judge-alone trial, given the election was filed fewer than 28 days before the trial date.
- Whether, once leave was granted and both parties consented, the Court retained any discretion to refuse a judge-alone order under s 132.
- Whether the requirements in ss 132(5) and 132(6) posed any obstacle to making the order.
Decision
Campbell J granted leave under s 132A, accepting that the lateness of the application was not the result of any lack of diligence by either party's legal representatives. The explanation was that forensic psychiatrists on both sides had only recently concluded that the mental illness offence (a complete defence) may be available to the accused. Prior to this, the psychiatric evidence had been directed to the partial defence of substantial impairment. That shift in expert opinion was a sufficient and legitimate basis for the late application.
On the question of discretion, Campbell J held that once leave is granted and both the accused and the prosecutor agree to a judge-alone trial, s 132(2) obliges the Court to make the order. No residual discretion exists in those circumstances.
The Court also addressed two potential statutory barriers. Section 132(6) requires that the accused have received legal advice about the effect of a judge-alone order. The Court was satisfied that condition was met, given the accused had obtained advice from senior counsel and his solicitor before signing the election. Section 132(5) was found to be irrelevant on the facts, as that provision only operates when the prosecution does not agree to trial by judge alone, which was not the case here.
Orders Made
- Leave granted under s 132A of the Criminal Procedure Act 1986 (NSW) for the accused to apply for trial by judge alone.
- The accused to be tried on two counts of murder, commencing 27 July 2016, by a judge alone without a jury.
- The jury panel summoned for the trial to be dispensed with.
Key Takeaways
- Under s 132A of the Criminal Procedure Act 1986 (NSW), a court may grant leave for a late judge-alone election where the delay is attributable to a genuine and recent change in the forensic landscape, rather than any lack of diligence by the parties.
- Once leave is granted and both the accused and the prosecution consent to trial by judge alone, s 132(2) removes the Court's discretion entirely and the judge-alone order must be made.
- Section 132(6) requires that an accused have received legal advice about the effect of a judge-alone order before the election is made. Where that advice is demonstrated, the subsection does not bar the order.
- Section 132(5) is engaged only where the prosecution withholds consent. Where the Crown agrees to trial by judge alone, that provision has no bearing on the application.
- A shift in expert psychiatric opinion from a partial defence to a complete defence can constitute a legitimate basis for a late election, even when it arises on the eve of trial.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
Cases cited: None cited in the judgment.