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Supreme Court 1 May 2018

R v Jenkin

[2018] NSWSC 634

Other
CRIMINAL LAW TRIAL BY JUDGE ALONE APPLICATION BROUGHT LATE WHETHER LEAVE SHOULD BE GRANTED OPERATION OF STATUTE APPLICATION GRANTED

Citation: R v Jenkin [2018] NSWSC 634
Court: Supreme Court of New South Wales
Date: 1 May 2018
Judge(s): Hamill J

Background

The accused faced criminal proceedings in the Supreme Court and had originally been set to stand trial alongside two co-accused. Following successful applications to separate his trial from those co-accused, he found himself as the sole remaining accused in his proceeding.

With the trial imminent, the accused applied under s 132 of the Criminal Procedure Act 1986 (NSW) for an order that he be tried by a judge alone rather than a jury. Because the application was made fewer than 28 days before the trial date, it was a late application requiring the court's leave under s 132A before it could proceed.

The prosecution had initially opposed the application and filed written submissions to that effect. However, on the morning the court convened to hear the matter, the Director of Public Prosecutions reconsidered overnight and indicated consent to a judge-alone trial.

  • Whether leave should be granted under s 132A to bring a late application for a judge-alone trial
  • Whether, once leave and prosecution consent were established, the court retained any discretion to refuse a judge-alone order under s 132(2)
  • Whether the accused had received adequate advice about the effect of a judge-alone order, as required before such an order can be made

Decision

Hamill J granted leave under s 132A, accepting that the lateness of the application was explained by identifiable circumstances. Counsel had been briefed late for reasons beyond the accused's control, meaning the accused did not receive advice about s 132 until mid-April 2018. The prosecution had also only recently served a tendency notice (a notice that certain evidence of the accused's past conduct would be led), and the outcome of related applications for severance and separate trials remained live until shortly before the hearing.

A further factor was the conduct of the co-accused proceedings. The accused could not have applied for a judge-alone trial while his co-accused were part of the same trial, because all co-accused would need to apply. Only once the last co-accused's case was separated did the accused immediately move on the application. Hamill J accepted that this sequence of events, taken together, provided adequate explanation for the timing.

Once leave was granted and the prosecution's consent confirmed, the court found that s 132(2) operated to remove any residual discretion. That provision states that the court "must" make a judge-alone order where both the accused and the prosecutor agree. After satisfying himself that the accused had received proper advice about the effect of the order, Hamill J made the order accordingly.

Orders Made

  • Leave granted to bring the late application pursuant to s 132A of the Criminal Procedure Act 1986 (NSW)
  • Order made that the accused be tried by judge alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW)

Key Takeaways

  • Under s 132(2) of the Criminal Procedure Act 1986 (NSW), where both the accused and the prosecutor consent to a judge-alone trial, the court has no discretion to refuse: it must make the order.
  • A late application under s 132A requires leave, and the Supreme Court here accepted that a combination of factors (late briefing of counsel, recent service of a tendency notice, and the evolving status of co-accused proceedings) can together justify the delay.
  • Where co-accused are joined in the same trial, an individual accused cannot obtain a judge-alone order without all co-accused also applying; the clock on any individual application may reasonably be regarded as starting only once that procedural impediment is removed.
  • Before making a judge-alone order, the court must be satisfied that the accused has sought and received advice about the effect of such an order; in this case, the court accepted confirmation of that advice from the accused's counsel on the record.
  • Hamill J reiterated the concern expressed in R v Simmons; R v Moore (No 4) [2015] NSWSC 259 about the appearance created by late applications of this kind, even while accepting that the circumstances here justified the grant of leave.

Legislation and Cases Referenced

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

Cases:
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259