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Court of Criminal Appeal 14 May 2018

Brown, Michael John v Director of Public Prosecutions (NSW)

[2018] NSWCCA 94

Assault & violence
CRIMINAL PROCEDURE INTERLOCUTORY APPEAL NATURE OF APPEAL FUNCTION OF APPELLATE COURT CRIMINAL APPEAL ACT 1912 (NSW), S 5F DAO V THE QUEEN (2011) 81 NSWLR 568

Citation: Brown, Michael John v Director of Public Prosecutions (NSW) [2018] NSWCCA 94
Court: Court of Criminal Appeal (NSW)
Date: 14 May 2018
Judges: Basten JA at [1]; Rothman J at [51]; Garling J at [62]

Background

The applicant was committed for trial in the District Court at Bourke on a charge of assault causing death under s 25A of the Crimes Act 1900 (NSW), arising from an incident at Brewarrina on 23 June 2016. He applied under s 132 of the Criminal Procedure Act 1986 (NSW) for an order that he be tried by a judge alone, without a jury. The prosecutor did not consent, meaning the court had a discretion to make the order only if satisfied it was in the interests of justice.

Acting Judge Marien SC refused the application on 15 November 2017. The applicant sought leave to appeal against that interlocutory ruling under s 5F of the Criminal Appeal Act 1912 (NSW). An extension of time was also required.

A complicating issue emerged during the appeal hearing: jury trials were no longer being conducted at Bourke due to practical difficulties in obtaining a jury panel. After rejecting the judge-alone application, the primary judge had adjourned the matter to the Dubbo District Court, even though no formal change-of-venue application had been made by the Director.

  • What is the proper standard of appellate review under s 5F of the Criminal Appeal Act 1912 (NSW) when an interlocutory decision is appealed, and whether the approach in R v Belghar was correctly constrained?
  • Whether the primary judge erred in concluding it was not in the interests of justice to order a trial by judge alone under s 132(4) of the Criminal Procedure Act 1986 (NSW)?
  • Whether the consequential order adjourning the matter to Dubbo, in the absence of a formal change-of-venue application, was valid?
  • Whether the unavailability of jury trials at the originally listed venue (Bourke) was a relevant factor in the judge-alone application?

Decision

Nature of the appeal. The Court of Criminal Appeal confirmed that the appellate standard under s 5F varies depending on the nature of the decision under appeal. An application for a judge-alone trial under s 132 involves the exercise of a judicial discretion, and the applicable appellate review standard is that in House v The King (1936) 55 CLR 499: an appellate court will not interfere unless error in the exercise of the discretion is established. The Court also considered the approach taken in R v Belghar and engaged with whether it was being applied in an unduly restrictive way, applying the principles from DAO v The Queen (2011) 81 NSWLR 568.

The judge-alone application. The Court examined whether the primary judge had erred in refusing the s 132 application. Under s 132(4), where the prosecutor does not consent, the court may make a judge-alone order only if it considers that course to be in the interests of justice. The Court noted that s 132(5) expressly contemplates, without limiting that discretion, that a court may refuse the order if the trial will involve factual issues requiring the application of objective community standards. The Court reviewed the primary judge's reasoning and the relevant considerations, including the nature of the charges, the locality, and any potential for prejudice in a jury trial.

The venue issue. The Court held that power to change the venue of a trial exists under s 30 of the Criminal Procedure Act and may be exercised by the court of its own motion. The fact that the matter was originally listed at Bourke (where jury trials were no longer available) did not, by itself, constitute a ground for requiring a judge-alone trial, though the reason for the original listing at Bourke could be a factor to weigh in the interests-of-justice analysis. The consequential adjournment to Dubbo was within power. However, the Court observed that if the applicant apprehended a prejudiced jury pool at Dubbo, the appropriate remedy would be to apply for a further change of venue, rather than relying on the venue circumstances as grounds for a judge-alone order.

Orders Made

• I agree with the orders proposed by Basten JA for the reasons which he gives.

Key Takeaways

  • The appellate standard under s 5F of the Criminal Appeal Act 1912 (NSW) is not uniform across all interlocutory appeals; it varies according to the nature of the decision under challenge and the type of error alleged, with discretionary decisions governed by the House v The King principles.
  • Under s 132(4) of the Criminal Procedure Act 1986 (NSW), where the prosecutor withholds consent to a judge-alone trial, the court holds a discretion to order one only if satisfied it is in the interests of justice, and a refusal will not be disturbed on appeal absent demonstrated error in the exercise of that discretion.
  • A court may change the venue of a trial under s 30 of the Criminal Procedure Act 1986 (NSW) on its own motion; the absence of a formal change-of-venue application by a party does not deprive the court of that power.
  • The practical unavailability of jury trials at the originally listed venue does not, of itself, make a judge-alone order appropriate, though the reason why a matter was listed at a particular venue may be a relevant factor in the interests-of-justice analysis.
  • Where a defendant apprehends that a jury pool at a proposed venue may be prejudiced, the Court of Criminal Appeal indicated the correct procedural response is an application to change the venue rather than an application for a judge-alone trial.

Legislation and Cases Referenced

Legislation
- Constitution, s 80
- Crimes Act 1900 (NSW), s 25A
- Criminal Appeal Act 1912 (NSW), ss 3, 5B, 5F
- Criminal Procedure Act 1986 (NSW), ss 30, 131, 132
- District Court Act 1973 (NSW), s 18F
- Evidence Act 1995 (NSW), s 97
- District Court Rules 1973 (NSW), Pt 53, r 7

Cases
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Belghar [2012] NSWCCA 86; 217 A Crim R 1
- R v Matovski (1989) 15 NSWLR 720
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259; 249 A Crim R 120
- RKF v R [2016] NSWCCA 116
- Ex parte McGavin; Re Berne (1945) 46 SR(NSW) 58
- Finance Facilities Pty Ltd v Commissioner of Taxation (1970-71) 127 CLR 106
- Macdougall v Paterson (1851) 11 CB 755
- Domio [2018] NSWDC 16