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Supreme Court 6 February 2019

R v Johnson

[2019] NSWSC 118

Homicide
JUDGE ALONE TRIAL

Citation: R v Johnson [2019] NSWSC 118
Court: Supreme Court of New South Wales
Date: 6 February 2019
Judge: Campbell J

Background

The accused was arraigned on an indictment charging that he murdered David Morrison at Campsie, New South Wales, on 29 June 2017. The matter came before Campbell J on 6 February 2019, the date fixed for trial to commence.

The accused filed an election under s 132 of the Criminal Procedure Act 1986 (NSW) to be tried by a judge alone rather than by a jury. The election recorded that he had sought and received advice from his senior counsel before making it. The Crown Prosecutor endorsed his consent to the election on 30 January 2019.

A procedural complication arose because the formal application was made less than 28 days before the trial date, which under s 132A of the Act requires the court's leave before the application can proceed.

  • Whether the court should grant leave under s 132A to permit the election to be made out of time, given it was filed less than 28 days before the trial date.
  • Whether the court was required to make a trial by judge alone order under s 132(2) once both the accused and the Crown consented.

Decision

On the leave question, Campbell J was satisfied that leave should be granted. The accused's counsel had notified the Crown of the intended application at a directions hearing more than two months earlier, on 23 November 2018. The Crown Prosecutor also consented to the application being made out of time.

On the substantive application, Campbell J held that once the Crown consented, the court had no discretion in the matter. Section 132(2) of the Criminal Procedure Act mandates that a court must make a trial by judge alone order when the accused and the prosecutor both agree to that mode of trial. The word "must" in the provision removes any judicial choice.

The trial by judge alone accordingly commenced that day.

Orders Made

  • Leave granted to the accused under s 132A of the Criminal Procedure Act 1986 to apply out of time for trial by judge alone.
  • The accused to be tried for murder commencing 6 February 2019 by judge alone, without a jury, pursuant to s 132 of the Criminal Procedure Act 1986.

Key Takeaways

  • Under s 132(2) of the Criminal Procedure Act 1986 (NSW), a court has no discretion and must make a trial by judge alone order where both the accused and the prosecutor agree to that mode of trial.
  • A pre-condition to a valid election is that the accused must have sought and received legal advice before making the election, as the statute expressly requires.
  • Where a formal application for trial by judge alone is made fewer than 28 days before the trial date, s 132A requires the court's leave before the application can be entertained.
  • Leave to apply out of time may be granted where the Crown was given prior notice of the intended election and has consented to the out-of-time application.
  • The Supreme Court confirmed that the Crown's endorsement of consent on the election is a sufficient basis for the court to act without further inquiry into the merits of the election itself.

Legislation and Cases Referenced

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

Cases:
No cases were cited in the judgment.