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District Court 14 May 2018

R v CE

[2018] NSWDC 220

Other
CRIME JUDGE ALONE TRIAL APPLICATION DISCRETIONARY FACTORS.

Citation: R v CE [2018] NSWDC 220
Court: District Court of NSW
Date: 14 May 2018
Judge(s): Colefax SC DCJ

Background

A young person (referred to by initials) was arraigned on an indictment alleging seven counts of criminal misconduct against another juvenile. On the day of arraignment, the accused's counsel applied for the trial to proceed by judge alone rather than before a jury of twelve. The Crown did not oppose the application.

Because the application was made on the day the trial commenced rather than 28 or more days beforehand, it fell outside the automatic entitlement to a judge-alone order under s 132 of the Criminal Procedure Act 1986 (NSW). The court therefore had to consider whether to grant leave under s 132A of that Act.

Legal Issues

  • Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 (NSW) for the trial to proceed by judge alone, where the application was made on the day of trial rather than 28 or more days in advance
  • Whether the specific grounds advanced by the accused (narrow issues, expedition, protecting the complainant from jury exposure, and the nature of the sole contested issue) were sufficient to displace the default position of trial by jury

Decision

Issue 1: The applicable framework

Where an application for a judge-alone trial is made fewer than 28 days before trial, the court retains a discretion under s 132A and must assess whether leave is in the interests of justice (at [4]-[5]). The court noted that s 132(5) expressly contemplates refusing such an order where the trial involves a factual issue requiring the application of objective community standards, such as reasonableness or indecency (at [6]). The Court of Criminal Appeal decisions in Belghar, Farrugia, and Brown all emphasise that trial by a jury of twelve remains the default and that departures from it require genuine justification (at [7]).

Issue 2: The accused's specific grounds

The court rejected several of the grounds advanced. It held that the narrowness of the issues and the prospect of an expedited hearing are not ordinarily sufficient to justify departing from trial by jury (at [9]). It also rejected the submission that a jury was an unsuitable tribunal to assess whether the accused knew his conduct was seriously wrong rather than merely naughty, observing that this is precisely the kind of question juries regularly decide (at [10]).

Issue 3: Practical utility in regional sittings

The decisive factor was practical utility specific to the Queanbeyan sittings. The court was present for only a short period, the list was heavily congested, and granting the application would facilitate the orderly management of multiple other matters, including pending trials for unrepresented accused on remand and contested conviction appeals that had already been adjourned repeatedly (at [11]). The court noted expressly that the same application in metropolitan Sydney would have been refused (at [11]).

Orders Made

  • Trial to proceed by judge alone.

Key Takeaways

  • Under s 132A of the Criminal Procedure Act 1986 (NSW), where a judge-alone application is made fewer than 28 days before trial, the court must be satisfied that granting leave is in the interests of justice; unlike applications made within the statutory timeframe, there is no automatic entitlement even where the Crown consents (at [3]-[4]).
  • Narrow factual issues and trial expedition are not, by themselves, ordinarily sufficient to displace the default position of trial by jury (at [9]).
  • A jury's capacity to assess whether a young accused understood his conduct was seriously wrong is not diminished merely because the question is a fine one; such assessments fall squarely within ordinary jury function (at [10]).
  • Practical utility arising from the particular pressures of a short regional sitting can constitute a sufficient basis for granting leave, even where the same application would be refused in a metropolitan context (at [11]).
  • The Court of Criminal Appeal decisions in R v Belghar, DPP v Farrugia, and Brown v DPP are the authoritative reference points for the competing considerations relevant to discretionary judge-alone applications under the Criminal Procedure Act (at [7]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s132 and s132A

Cases
- R v Belghar [2016] NSWCCA 116; Director of Public Prosecutions v Farrugia [2017] NSWCCA 197; and Brown v Director of Public Prosecutions [2018] NSWCCA 94