Citation: R v Cunningham (No 2) [2017] NSWSC 1233
Court: Supreme Court of New South Wales
Date: 5 September 2017
Judge(s): Beech-Jones J
Background
An accused was charged with murder and stood trial before a judge sitting alone, without a jury. The trial proceeded on the understanding that a judge-alone trial order had been made at a directions hearing on 2 June 2017, as permitted under s 132 of the Criminal Procedure Act 1986.
After final submissions were completed and judgment was reserved, the judge's Associate identified that the court's electronic record system (Justicelink) contained no entry recording such an order. The judge raised this concern with the parties, initially suggesting the trial might need to be restarted with a formal order.
The Crown Prosecutor responded by submitting that a review of the transcript from the 2 June 2017 directions hearing showed that an order had in fact been made orally by Johnson J. The question became whether those words in the transcript amounted to a valid order, or whether the trial had proceeded without a proper jurisdictional foundation.
Legal Issues
- Whether the words spoken by Johnson J at the 2 June 2017 directions hearing constituted an order for a judge-alone trial under s 132(1) of the Criminal Procedure Act 1986
- Whether Pt 75 r 3M of the Supreme Court Rules 1970 (requiring orders to be entered on the court's computerised records system) applied to judge-alone trial orders made in criminal proceedings on indictment
- Whether any failure to enter such an order on the court record would render the order a nullity or affect the validity of the trial
Decision
Issue 1: Application of the Supreme Court Rules to judge-alone trial orders
Beech-Jones J held that Pt 75 of the Supreme Court Rules 1970 does apply to orders made under s 132(1) of the Criminal Procedure Act in proceedings in the Supreme Court (at [15]). Criminal proceedings for the prosecution of offenders on indictment are expressly included in the Third Schedule to the Supreme Court Act 1970, and a judge-alone trial order is made within those proceedings. The Crown's argument that the inclusion of committals for sentence as a separate category in the Third Schedule indicated a narrower reading was rejected: that inclusion merely removed doubt about committal proceedings, and did not cut down the broader category (at [18]).
Issue 2: Effect of failing to enter the order
The court accepted the Crown's alternative submission that any failure to enter the order, even if it should have been entered, would not render the order a nullity or affect the validity of the trial (at [18]). The absence of any entry on the Associate's record and on Justicelink was, however, treated as some evidence that no order had actually been made (at [18]).
Issue 3: Whether an implied order was made on 2 June 2017
Drawing on Wu v R [1999] HCA 52 and R v Radju [2001] NSWCCA 103, the court confirmed that an order may be implied from words spoken in proceedings, particularly where little or no deliberative process is required before the order can be made (at [20]). At the 2 June 2017 directions hearing, both the accused and the Crown had already signed consents to a judge-alone trial, meaning no further deliberation was required by the court before making an order under s 132(1) (at [21]). While acknowledging the matter was not free from doubt, Beech-Jones J was satisfied that an order for a trial by judge alone could be inferred from the exchange that took place, including Johnson J's statement that "the matter will be a judge alone trial" (at [19], [21]). The trial was permitted to continue and a verdict was delivered.
Orders Made
- The trial continued before the judge sitting alone.
Key Takeaways
- An order for a judge-alone trial under s 132(1) of the Criminal Procedure Act 1986 can be implied from words spoken in court, applying the principles in Wu v R and R v Radju, where the circumstances show no further deliberative process was required before the order could be made (at [20]-[21]).
- Part 75 r 3M of the Supreme Court Rules 1970, governing the entry of court orders, applies to judge-alone trial orders made in Supreme Court criminal proceedings on indictment, as those proceedings fall within the Third Schedule to the Supreme Court Act 1970 (at [15]).
- Failure to enter a judge-alone trial order on the court's computerised record system does not render the order a nullity and does not affect the validity of the resulting trial, though the absence of any such record is some evidence that the order was not in fact made (at [18]).
- Where both parties have signed their consents to a judge-alone trial prior to the court making its order, the threshold for implying an oral order from ambiguous words is reduced, because no deliberative step by the court remains outstanding (at [21]).
- The inclusion of committals for sentence as a separate category in the Third Schedule to the Supreme Court Act 1970 does not narrow the meaning of "proceedings for the prosecution of offenders on indictment"; it operates only to remove doubt about the committal category itself (at [18]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986, s 132
- Supreme Court Act 1970, Sch 3
- Supreme Court Rules 1970, Pt 75, r 3M
Cases
- R v Radju [2001] NSWCCA 103; 53 NSWLR 471
- Wu v R [1999] HCA 52; 199 CLR 99