Citation: Regina v BD (No. 1) [2020] NSWDC 150
Court: District Court of New South Wales
Date: 29 April 2020
Judge(s): Lerve DCJ
Background
The accused faced 16 counts of child sexual offences and assaults involving three separate complainants, with alleged conduct spanning October 2015 to February 2018. He had been in custody since his arrest on 11 June 2019 and was committed for trial from Wagga Wagga Local Court in March 2020. He pleaded not guilty at an arraignment conducted by audiovisual link on 24 April 2020.
At arraignment, the accused applied for his trial to be conducted by judge alone. The Crown opposed the application, as it was entitled to do under the newly enacted COVID-19 emergency legislation. The matter required a reserved judgment on whether a judge alone order was in the interests of justice.
Legal Issues
- Whether, under section 365 of the Criminal Procedure Act 1986 (as amended by the Covid-19 Legislation (Emergency Measures) Act 2020), it was in the interests of justice to order a judge alone trial over the Crown's opposition
- What effect the Emergency Measures legislation had on the evidentiary onus ordinarily placed on an accused applicant in judge alone applications
- How the COVID-19 pandemic and resulting suspension of jury trials bore on the interests of justice analysis
Decision
Issue 1: The applicable legislative framework
Section 365 of the Criminal Procedure Act, inserted by the Emergency Measures legislation, governed the application and required the court to determine whether a judge alone order was in the interests of justice (at [2]). His Honour held that this provision subordinated the ordinary requirements under sections 132 and 132A to the emergency framework, and that Parliament's clear intent was to facilitate more judge alone trials during the emergency period (at [17]-[19]). The Attorney-General's second reading speech was referenced as supporting that intent (at [18]).
Issue 2: The evidentiary onus on the accused
In ordinary circumstances, established authorities including decisions of the Court of Criminal Appeal impose an evidentiary onus on an accused who applies for a judge alone trial. The court held that this onus has been dispensed with while the Emergency Measures remain in place (at [3], at [33]-[35]). These times were not ordinary, and the court drew on decisions from the ACT Supreme Court confirming a similar approach to emergency-era judge alone applications (at [27]-[32]).
Issue 3: The interests of justice in the circumstances
The court found that the interests of justice required consideration of the COVID-19 pandemic and the prevailing community situation (at [3]). Jury trials had been suspended and the timing of their resumption was uncertain; even at Wagga Wagga, there was no certainty the matter would be reached in 2020 if listed as a jury trial (at [26]). The accused had been in custody since arrest and would almost certainly remain so until trial (at [4], at [41]). He consented to and actively sought trial by judge alone, and had received legal advice on that election (at [19]). Taking all of these matters together, the court was firmly of the opinion that it was in the interests of justice for the trial to proceed by judge alone, adopting the principle that "the business of the court is to continue" (at [42]).
Orders Made
- Trial directed to proceed by judge alone pursuant to section 365 of the Criminal Procedure Act
- Trial date fixed for Tuesday 9 June 2020
Key Takeaways
- The District Court held that section 365 of the Criminal Procedure Act, inserted by the Covid-19 Legislation (Emergency Measures) Act 2020, requires a judge alone application to be assessed against an "interests of justice" standard, and that this provision takes precedence over the ordinary requirements of sections 132 and 132A (at [2], at [17]).
- While the Crown retains the right to oppose a judge alone application under the emergency legislation, that opposition does not attract the same evidentiary framework that applies in ordinary times; the court found that the evidentiary onus on the accused has been dispensed with while the Emergency Measures remain in force (at [3], at [33]-[35]).
- Parliament's stated intent, confirmed by the Attorney-General's second reading speech, was to facilitate more judge alone trials during the emergency period, and the court gave direct effect to that intent in its reasoning (at [18]-[19]).
- Where jury trials are suspended and resumption is uncertain, the length of an accused's pre-trial custody and the absence of any firm trial date are relevant factors in the interests of justice analysis under the emergency framework (at [4], at [26], at [41]).
- Consistent with decisions from the ACT Supreme Court in R v UD (No. 2) and R v Coleman, the District Court affirmed the principle that the business of the court must continue, and that this principle informs how the interests of justice are assessed during the pandemic (at [32], at [42]).
Legislation and Cases Referenced
Legislation
- Covid-19 Legislation (Emergency Measures) Act, 2020
- Criminal Procedure Act, 1986
- Crimes Act, 1900
- Supreme Court Act, 1933 (ACT)
Cases
- R v Belghar [2012] NSWCCA 86
- R v Coleman [2020] ACTSC 97
- DPP v Farrugia [2017] NSWCCA 197
- Mickelberg v The Queen (No 3) (1992) 8 WAR 236
- Mulquiney v Reynolds and Anor (Ruling No. 1) [2020] VSC 119
- Pambula District Hospital v Herriman (1988) 14 NSWLR 387
- R v Qaumi & Ors (No. 14) (Judge alone application) [2016] NSWSC 274
- Rakielbakhour v DPP [2020] NSWSC 323
- Redman v R [2015] NSWCCA 110
- R v Spiteri-Ahern; Barber; Zraika [2017] NSWSC 1275
- R v UD (No. 2) [2020] ACTSC 90