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District Court 4 May 2020

R v MPW

[2020] NSWDC 170

Sexual offencesPublic order & justice offences
TRIAL BY JUDGE ALONE CROWN OPPOSES APPLICATION COVID 19 PANDEMIC BUSINESS OF THE COURT TO CONTINUE

Citation: R v MPW [2020] NSWDC 170
Court: District Court of New South Wales
Date: 4 May 2020
Judge(s): Priestley SC, DCJ

Background

The accused faced five criminal charges arising from two separate incidents in 2018. Four charges related to alleged sexual offences against a complainant on 24 June 2018, including two counts of sexual intercourse without consent and two backup counts of indecent assault. A fifth charge alleged the accused attempted to pervert the course of justice on 11 July 2018.

The accused had been on bail since his arrest on 31 July 2018. Two earlier trial dates had been vacated: one in August 2019 due to Crown witness unavailability, and one in September 2019 due to late service of Crown material. The matter had not yet reached trial when the COVID-19 pandemic suspended jury trials across New South Wales.

The accused applied under section 365 of the Criminal Procedure Act 1986, as amended by the COVID-19 emergency legislation, for the trial to proceed before a judge alone. The Crown opposed the application.

Legal Issues

  • Whether the court should order a judge alone trial under section 365 of the Criminal Procedure Act 1986 where the Crown does not consent
  • Whether it was in the interests of justice to make that order given the COVID-19 pandemic, the history of delay, and the nature of the charges
  • What weight to give to community participation in the administration of justice when jury trials were suspended
  • Whether the Crown's assertion that minimal delay would result from waiting for jury trials to resume was well-founded

Decision

Issue 1: The applicable test

Section 365 requires the court to determine whether it is in the interests of justice for the accused to be tried by a judge alone when the prosecution does not agree. The court confirmed that the test itself had not changed from the pre-pandemic provision in section 132, though the pandemic expanded the range of relevant factors to be weighed (at [4]-[5]).

Issue 2: The purpose and effect of the COVID-19 amendments

The court found that jury trials were entirely suspended and there was no mechanism for conducting a criminal trial in New South Wales other than by judge alone (at [5]). The court drew on the Attorney-General's second reading speech and decisions from other judges of the District Court, concluding that the legislation was specifically intended to facilitate more judge alone trials and to ensure the business of the court continued (at [15]-[17]). The court accepted the proposition from comparable ACT Supreme Court reasoning, adopted by Lerve DCJ in R v BD, that the ability to hold a trial before a jury at some future point is not in itself a sufficient reason to refuse a judge alone order (at [13]-[14]).

Issue 3: Delay and the availability of court dates

The court rejected the Crown's submission that the delay in obtaining a jury trial would be minimal. After examining available dates at Coffs Harbour, the court found that the only clear week for a jury trial was the final week of the December 2020 term, a period practically unsuitable for a ten-day matter (at [11]-[12]). The court also observed that no date had been set for the recommencement of jury trials and that a significant backlog would exist once restrictions lifted (at [13]).

Issue 4: Community standards and the nature of the charges

The court acknowledged that allegations of sexual offences engage community standards, a factor that ordinarily weighs in favour of a jury trial (at [20]). However, on the particular facts alleged, where the complainant was said to have been intoxicated and asleep, the court found this consideration did not weigh heavily because there was little realistic scope for a judge to apply a different view of community standards than a jury would (at [21]). The Crown's argument about the desirability of jury fact-finding was found to be a factor already contemplated by the amendments, and the Crown had not advanced anything beyond that general proposition to justify refusal (at [24]).

Orders Made

  • The court ordered that the accused be tried by a judge alone pursuant to section 365 of the Criminal Procedure Act 1986.

Key Takeaways

  • Under section 365 of the Criminal Procedure Act 1986 (as amended by the COVID-19 emergency legislation), a court may order a judge alone trial over the Crown's objection where it considers this to be in the interests of justice, applying the same test as under the pre-existing section 132 but weighing a broader range of factors arising from the pandemic.
  • The District Court held that the mere possibility of a future jury trial is not a sufficient basis to refuse a judge alone order; the legislation was enacted to keep the business of the court operating during the pandemic, not simply to preserve jury trials for whenever restrictions lift.
  • Where the Crown's submission on delay rests on speculative or inaccurate assumptions about available court dates, the court will scrutinise those assumptions and may find them demonstrably wrong.
  • The existence of community standards issues in sexual assault cases ordinarily favours jury fact-finding, but this factor may carry reduced weight where the alleged facts leave little room for a divergence between a judge's and a jury's application of those standards.
  • The COVID-19 amendments introduced an additional power for courts to order judge alone trials on their own motion, reinforcing the legislature's intention that criminal trials continue even in the absence of both party consent.

Legislation and Cases Referenced

Legislation
- COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW) Criminal Procedure Act 1986 (NSW)

Cases
- R v BD [2020] NSWDC 150 R v Johnson [2020] NSWDC 153 Redman v R [2015] NSWCCA 110