Citation: R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513
Court: Supreme Court of New South Wales
Date: 16 November 2018
Judge: Hamill J
Background
Three co-accused faced a joint criminal trial. Two of them had indicated relatively early that they wished to be tried by a judge alone rather than by jury. However, under the Criminal Procedure Act 1986 (NSW), a judge-alone order in a joint trial requires all accused to make the application, meaning the other two could not proceed until the third joined them.
The third accused, Mr Wilkinson, had not consented to a judge-alone trial until approximately one week before the trial was due to commence. His change of position came after engaging new counsel, who had concerns about prejudicial material likely to emerge in the case of one co-accused that would not necessarily be admissible against Mr Wilkinson himself.
Because Mr Wilkinson's late election caused the applications to fall outside the usual time limits, all three accused required leave under s 132A before their applications under s 132 could be considered. The prosecution ultimately consented to the judge-alone trial.
Legal Issues
- Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 (NSW) to permit a late application for a judge-alone trial
- Whether the requirements of s 132(6), namely that each accused had received legal advice about the effect of a judge-alone order, were satisfied
- Whether, with the consent of all accused and the prosecution, the Court was obliged under s 132(2) to make the judge-alone order
- Whether the judge-alone order resolved the need to consider separate trial applications
Decision
Hamill J granted leave under s 132A for all three accused to make late applications. His Honour accepted that the delay was adequately explained: the two co-accused who had wanted a judge-alone trial from an earlier stage could not file until Mr Wilkinson joined the application, and Mr Wilkinson's late change of position followed receipt of new legal advice from experienced counsel.
On the s 132(6) requirement, the judge noted that while the written material filed may not have strictly complied with the provision, each counsel gave assurances in court that morning that the required advice had in fact been given. His Honour accepted those assurances without reservation.
Once leave was granted and the s 132(6) requirement was satisfied, Hamill J observed that s 132(2) is expressed in mandatory terms. Where both the accused and the prosecution consent to a judge-alone trial, the Court "must" make the order. His Honour described the position as being "stuck with it," and made the orders accordingly.
His Honour also noted a tension in the statute between the mandatory language of s 132(2) and the precondition in s 132(6), observing that it is unclear how these provisions would interact if parties consented but the Court was not satisfied that proper advice had been given. That issue was left unresolved, as it did not arise on the facts.
Orders Made
- Leave granted under s 132A for each of the three accused to make an application under s 132
- Orders made under s 132 that each of the accused be tried by judge alone
- The judge-alone orders were noted to resolve the question of whether any accused should be tried separately
Key Takeaways
- Under s 132A of the Criminal Procedure Act 1986 (NSW), late applications for a judge-alone trial require leave, and the court will consider whether a satisfactory explanation for the delay exists.
- In a joint trial, s 132A(2) prevents a judge-alone order unless all accused make the application, meaning a single co-accused's refusal can delay or defeat the election of others.
- A change in legal advice, particularly where new counsel identifies a legitimate forensic concern, can constitute a satisfactory explanation for a late election.
- Section 132(2) uses mandatory language: once all accused and the prosecution consent, the court "must" make a judge-alone order, leaving no residual discretion to refuse.
- Hamill J flagged an unresolved statutory tension between the mandatory obligation in s 132(2) and the precondition in s 132(6), noting the issue remains open for a future case where consent exists but the legal advice requirement is genuinely in doubt.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132 and 132A
Cases:
No cases were cited in the judgment.