Citation: R v DLW [2020] NSWDC 205
Court: District Court of New South Wales
Date: 15 May 2020
Judge: Abadee DCJ
Background
The accused, DLW, had been in custody since July 2017 facing two separate back-to-back trials on serious charges of sexual offences against children. The first trial, involving three counts of sexual intercourse with a child under ten years of age contrary to s 66A of the Crimes Act 1900 (NSW), was listed to commence on 25 May 2020 at Gosford.
No jury trials were available at Gosford on that date due to the COVID-19 pandemic. If the trial did not proceed on 25 May, the earliest priority listing for a jury trial would be 16 November 2020, with no guarantee it would actually occur then.
With the benefit of legal advice, the accused signed the prescribed form electing trial by judge alone. The Crown opposed the application.
Legal Issues
- Whether it was in the interests of justice to order a judge-alone trial under ss 132 and 132A of the Criminal Procedure Act 1985 (NSW), where the Crown did not consent
- Whether s 365 of the Criminal Procedure Act, inserted by the COVID-19 Legislation (Emergency Measures) Act 2020 (NSW), modified or displaced the pre-existing principles governing judge-alone applications
- Whether the phrase "interests of justice for the accused person" in s 365(2)(b) carried a narrower or different meaning than "interests of justice" in s 132(4)
Decision
Abadee DCJ noted that s 365 was enacted specifically to facilitate more judge-alone trials during the pandemic, reflecting what the Attorney General described as extraordinary times requiring extraordinary measures. His Honour held that the general principles under ss 132 and 132A must be construed in light of s 365, and that the specific circumstances of the pandemic caused those general principles to yield to the particular conditions created by COVID-19.
The Court found that no community standards would be engaged in determining the accused's guilt, which lessened the need for a jury. The case involved no overt legal or factual complexity. On the question of witness credibility, including the complainant's evidence, his Honour considered the competing considerations to be neutral: the transparency of reasoned judicial findings weighed against the collective experience that jurors bring to credibility assessments.
His Honour gave substantial weight to the accused having elected trial by judge alone with the benefit of legal advice, noting that an important function of jury trial is protection of the accused. The accused had made an informed judgment that an immediate judge-alone trial served his interests better than an indefinitely deferred jury trial. An indefinite delay would also have been contrary to the interests of the community and would have added to the Court's backlog.
The Court declined to decide whether the different language in s 365(2)(b) required the "interests of justice" test to be read down in favour of the accused's personal interests, finding that the application succeeded without needing to resolve that question.
Orders Made
- The accused's application for trial by judge alone, commencing 25 May 2020, was granted.
Key Takeaways
- The District Court held that s 365 of the Criminal Procedure Act, inserted by the COVID-19 emergency legislation, plainly intended to facilitate more judge-alone trials and must be read as causing the general principles under ss 132 and 132A to yield to the specific circumstances of the pandemic.
- Where no jury trial was available due to COVID-19 restrictions, the prospect of indefinite delay weighed significantly in favour of granting a judge-alone order, as prolonged delay was contrary to both the accused's interests and the community's interest in timely justice.
- An accused's informed election for judge-alone trial, made with the benefit of legal advice, carries substantial weight in the interests-of-justice assessment, particularly because one purpose of the jury right is the protection of the accused.
- Absence of any factual issue requiring the application of community standards reduces the need for a jury, and witness credibility considerations do not automatically favour jury trial over judge-alone trial.
- The Court left unresolved whether the phrase "interests of justice for the accused person" in s 365(2)(b) narrows the test by comparison with s 132(4), finding it unnecessary to decide that question on the facts.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1985 (NSW), ss 132, 132A, 365
- COVID-19 Legislation (Emergency Measures) Act 2020 (NSW)
- Crimes Act 1900 (NSW), s 66A
Cases
- R v Stanley [2013] NSWCCA 124
- R v Swain [2020] NSWDC 198