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Supreme Court 21 June 2018

R v Parker

[2018] NSWSC 951

HomicideDrugs
CRIMINAL PROCEDURE

Citation: R v Parker [2018] NSWSC 951
Court: Supreme Court of NSW
Date: 21 June 2018
Judge: Adamson J

Background

The accused faced trial for manslaughter arising from an incident in which, according to the Crown, he either injected the deceased with heroin, assisted the deceased to inject himself, or supplied heroin to the deceased who subsequently overdosed. Both the accused and the deceased were residents at the Matthew Talbot Hostel at the relevant time. The trial was listed to commence on 9 July 2018.

The accused applied for an order that he be tried by judge alone under s 132(1) of the Criminal Procedure Act 1986 (NSW). The Crown did not consent to that course, meaning the question for the court was whether a judge-alone trial was in the interests of justice.

The application was made late, requiring leave under s 132A(1). The defence explained the delay partly on the basis that the decision involved a careful balancing of competing considerations, and that the recent death of a principal Crown witness had tipped the balance in favour of making the application.

  • Whether leave should be granted to make a late application for a judge-alone trial under s 132A of the Criminal Procedure Act 1986 (NSW)
  • Whether, in the absence of Crown consent, it was in the interests of justice for the trial to proceed by judge alone under s 132(4)
  • What weight should be given to: potential juror prejudice arising from the drug-use context; the novelty and underdeveloped state of the law on manslaughter by criminal negligence; the desirability of reasoned judicial findings; and the complexity of causation evidence

Decision

Adamson J granted leave to make the application out of time, treating the merits of the substantive application as the primary consideration in that assessment. The defence had offered a credible explanation for the delay, and the judge found no suggestion of judge-shopping given that the matter had been allocated to her by the arraignments judge months earlier.

On the substantive question, the defence advanced several arguments in favour of a judge-alone trial: that jurors might be prejudiced by the drug-use environment surrounding both the accused and the deceased; that the accused's recorded bizarre behaviour on CCTV footage risked distracting or inflaming a jury; that the law of manslaughter by criminal negligence was relatively undeveloped and a reasoned judgment would assist its development; and that a jury verdict would leave the accused unable to know on which basis he had been convicted.

Adamson J acknowledged these were genuine considerations and accepted that judges are better equipped than juries to put emotionally charged material out of their minds. The court also recognised that reasoned judgments have real value, particularly where novel legal questions arise. However, her Honour concluded that the advantages of trial by jury remained significant in this case. In particular, the "acceptability" of a verdict grounded in the collective wisdom of twelve community members carried considerable weight, especially given that the central factual questions (including whether the circumstances gave rise to a duty of care underpinning criminal negligence) were ones that community representatives were well-placed to resolve.

Relying on the High Court's observations in Swain v Waverley Municipal Council and the general principles confirmed in R v Belghar, the court held that the interests of justice did not favour displacing the ordinary mode of trial. The application was refused.

Orders Made

  • Leave granted to the applicant to make an application under s 132 of the Criminal Procedure Act 1986 (NSW) for an order to be tried by judge alone
  • Application for an order that the accused be tried by judge alone refused

Key Takeaways

  • There is no presumption in favour of jury trial in NSW criminal proceedings, and no burden on an accused to displace such a presumption when applying under s 132 of the Criminal Procedure Act 1986 (NSW). However, the courts have consistently recognised the important role juries play in the administration of criminal justice.
  • A late application for a judge-alone trial will be assessed primarily by reference to the merits of the substantive application and the adequacy of the explanation for delay. The risk of judge-shopping is a relevant but not determinative consideration.
  • Potential juror prejudice arising from the context of illegal drug use is a relevant factor in the interests-of-justice assessment, but the Supreme Court here found it insufficient, on its own or in combination with other factors, to displace trial by jury.
  • The novelty of the applicable legal category (manslaughter by criminal negligence in a drug-supply context) and the desirability of reasoned findings to assist legal development are factors the court recognised as legitimately favouring judge-alone trial, though they did not prevail in this instance.
  • Where factual questions engage community standards, including questions going to the existence of a duty of care, the collective judgment of a jury retains particular significance in the interests-of-justice calculus.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Criminal Appeal Act 2012 (NSW), s 5F

Cases
- Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
- R v Belghar [2012] NSWCCA 86; 217 A Crim R 1
- R v McNeil [2015] NSWSC 357; (2015) 250 A Crim R 12
- Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
- R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
- R v Dally [2000] NSWCCA 162; 115 A Crim R 582
- R v Isaacs (1997) 41 NSWLR 374