Citation: R v Johnson [2020] NSWDC 153
Court: District Court of New South Wales
Date: 30 April 2020
Judge(s): Grant DCJ
Background
The accused faced a single charge of sexual intercourse without consent, with a trial listed to commence on 9 June 2020. Jury trials across New South Wales had ceased as a result of the COVID-19 pandemic, and there was significant uncertainty about when they might resume.
The accused applied, with his consent, for the trial to be conducted by judge alone. The Crown opposed the application, arguing that community involvement in the criminal justice system remained an overriding consideration and that a jury trial might be possible later in 2020.
Legal Issues
- Whether the court should order a trial by judge alone under s 365 of the Criminal Procedure Act 1986 (as amended by the COVID-19 Legislation Amendment (Emergency Measure) Act 2020), despite the Crown's opposition
- Whether the "interests of justice" test under s 365 was satisfied in circumstances where jury trials had been suspended due to the pandemic
Decision
The governing test: The sole test under s 365 for ordering a trial by judge alone is whether it is in the "interests of justice" (at [19]). The Crown accepted that, in the current pandemic environment, the interests of justice must account for prejudice to the accused caused by delay and the courts' capacity to continue functioning (at [19]).
Parliamentary intention: Grant DCJ found that the emergency legislation amendments to the Criminal Procedure Act were intended to empower courts to continue functioning and to facilitate more judge-alone trials (at [7]-[9]). Citing the Attorney-General's second reading speech, his Honour held that Part 5 of the Act makes the existing judge-alone provisions in ss 132 and 132A subordinate to s 365, thereby making it easier for the court to order a judge-alone trial (at [9]).
The Crown's community involvement argument: The court acknowledged the established principles favouring community participation in the criminal justice system, as expressed in Farrugia, Brown, and Stanley, but found those considerations must be weighed more cautiously against the clear parliamentary intention behind the emergency legislation (at [17], [23]). The Crown's suggestion that a jury trial might be reached later in 2020 was met with scepticism, with Grant DCJ expressing doubt that any such certainty existed (at [18]).
Conclusion: Adopting the reasoning of Elkaim J in R v Coleman [2020] ACTSC 97 that "the business of the court is to continue," Grant DCJ held that it was in the interests of justice to proceed by judge alone, and confirmed the June 2020 trial date (at [21], [25]-[26]).
Orders Made
- Trial directed to proceed by judge alone pursuant to s 365 of the Criminal Procedure Act 1986
- Trial date of 9 June 2020 confirmed
Key Takeaways
- Under s 365 of the Criminal Procedure Act 1986, as amended by the COVID-19 emergency legislation, the court may order a judge-alone trial on its own motion where the accused consents, applying a single "interests of justice" test (at [10], [19]).
- The COVID-19 emergency amendments were designed to subordinate the pre-existing judge-alone provisions to s 365, making it easier for courts to order such trials during the pandemic, and without requiring the Crown's consent (at [7]-[9]).
- The Crown's right to oppose a judge-alone application is preserved by the emergency legislation, but the weight traditionally given to community involvement in the criminal justice system must be reassessed in light of Parliament's clear intention to keep courts functioning (at [16], [23]).
- Uncertainty about when jury trials would resume was treated as a material factor in the interests of justice analysis, with the court declining to accept the Crown's optimism that a jury trial could proceed within 2020 (at [18]).
- The principle that "the business of the court is to continue," drawn from the ACT Supreme Court's decision in R v Coleman, was adopted by the District Court as consistent with the purpose of the NSW emergency legislation (at [21], [25]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Covid-19 Legislation Amendment (Emergency Measure) Act 2020
Cases
- Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
- Brown v The Director of Public Prosecutions (NSW) [2018] NSWCCA 94
- R v Stanley [2013] NSWCCA 124
- R v Coleman [2020] ACTSC 97