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Supreme Court 31 October 2018

R v Mackie (No 2)

[2018] NSWSC 1654

Homicide
CRIMINAL PROCEDURE APPLICATION FOR TRIAL BY JUDGE ALONE

Citation: R v Mackie (No 2) [2018] NSWSC 1654
Court: Supreme Court of New South Wales
Date: 31 October 2018
Judge: Lonergan J

Background

The accused faced a charge of murder arising from the death of a woman on 13 October 2015. The Crown alleged the accused attacked the deceased with a block splitter and then, together with her partner, strangled the deceased and threw her body from a bridge. The partner died by suicide shortly after the alleged offence.

The accused's first jury trial commenced in January 2018 at Bega before Latham J. After three and a half days of deliberation, the jury was unable to reach a verdict. A second jury trial was listed to commence in March 2019 at Wollongong.

With that second trial approaching, the accused applied under s 132(1) of the Criminal Procedure Act 1986 (NSW) for an order that the retrial proceed before a judge alone. The prosecution did not consent to the application.

  • Whether it was in the interests of justice under s 132(4) of the Criminal Procedure Act 1986 (NSW) to order a judge-alone trial where the prosecution withheld consent
  • What weight, if any, should be given to the prior hung jury outcome, the accused's period in custody, and the risk of further inconclusive jury deliberations
  • Whether the nature of the evidence, particularly credibility and reliability assessments of the accused's statements to an undercover operative, was better suited to jury determination or to a judge sitting alone

Decision

Lonergan J refused the application, finding it was not in the interests of justice to grant a judge-alone trial. The court confirmed that there is no presumption in favour of jury trial when assessing a s 132 application; however, trial by jury remains the default position mandated by s 131, and that conventional approach carries significant weight. The court adopted the analysis of Basten JA in Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197, which emphasised that the public interest underpinning jury trials must inform any assessment under s 132.

The court acknowledged the arguments raised by the accused, including the prior hung jury, the length of time spent in custody on remand, and the desirability of a guaranteed outcome. These were accepted as legitimate considerations but were not found to be sufficiently weighty to displace the interests of justice in having a jury determine the case.

A central factor in the refusal was the nature of the key evidence. The primary issue at trial concerned the credibility and reliability of statements the accused made to an undercover police operative. Lonergan J held that assessments of that kind are more appropriately made by a jury of twelve than by a single judge. The court noted that the advantage of judicial reasons, sometimes cited in favour of judge-alone trials, carries most weight in cases involving complex expert or scientific evidence. No such complexity existed in this case, with the forensic evidence described as straightforward.

On the question of efficiency and the financial cost of further jury trials, the court followed R v Belghar in finding that overall systemic efficiency is not a primary consideration under s 132(1), even if it may form part of the broader mix of factors in certain circumstances.

Orders Made

• The application for a judge alone trial is refused.

Key Takeaways

  • Refusing the application, the Supreme Court confirmed that trial by jury remains the conventional and legislatively mandated default, and that the "interests of justice" test under s 132(4) must be assessed against that backdrop rather than treated as a neutral balancing exercise.
  • A prior hung jury does not, of itself, establish that a judge-alone trial is in the interests of justice; the inconclusive outcome of one jury is a relevant consideration but is not determinative.
  • The advantage most commonly associated with judge-alone trials, namely a reasoned verdict, carries greatest force in cases involving complex engineering, scientific, or medical evidence. Where the central issue is credibility and reliability of witness statements, a jury of twelve is generally regarded as the more appropriate tribunal.
  • Under s 132, the interests of justice are not coextensive with the interests of the accused. The community's interest in public participation in serious criminal proceedings, and in the maintenance of confidence in the justice system, are independent considerations that carry independent weight.
  • Systemic efficiency and the financial cost of multiple trials are not primary factors in a s 132(4) application, following the approach in R v Belghar (2012) 217 A Crim R 1.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 131, 132

Cases
- Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
- R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
- R v Haydar (No 2) [2017] NSWSC 131
- R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259
- R v Stanley [2013] NSWCCA 124
- Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4