Citation: R v Quintana (No. 2) [2020] NSWSC 22
Court: Supreme Court of New South Wales
Date: 30 January 2020
Judge(s): Lonergan J
Background
The accused was charged with the murder of a man on 18 February 2018. The Crown alleged the accused stabbed the deceased with the intention of causing grievous bodily harm, in circumstances where the deceased and another man had allegedly assaulted and robbed the accused at his unit after sharing drugs together.
The accused had been diagnosed with long-term treatment-resistant schizophrenia, though there was no fitness to plead issue. At trial, the accused intended to rely on both self-defence and the partial defence of substantial impairment under the Crimes Act 1900 (NSW).
Before the jury trial commenced, the accused applied for the trial to be conducted by a judge alone under s 132(1) of the Criminal Procedure Act 1986 (NSW). The prosecution did not consent to the application.
Legal Issues
- Whether it was in the interests of justice under s 132(1) of the Criminal Procedure Act 1986 (NSW) to order a trial by judge alone, without the prosecutor's consent
- Whether the combination of potentially prejudicial factors, including evidence of drug supply, the accused's mental illness, and his association with young female witnesses, created a sufficient basis to conclude a fair jury trial was not possible
- Whether the complexity of directions concerning mental illness and self-defence favoured a judge alone trial
- Whether the court could take judicial notice of the prejudicial factors identified by the accused
- Whether the application of community standards had only a limited role in the trial
Decision
The applicable test and framework
The court confirmed that there is no onus on an applicant to displace a presumption of trial by jury. The sole question is whether ordering a judge alone trial is in the interests of justice (at [7]). The interests of justice do not necessarily align with the interests of the accused (at [9]). Two recognised advantages of trial by jury are the community interest in having serious criminal matters determined by reference to current community standards, and the maintenance of public confidence in the criminal justice system (at [10]).
Alleged jury prejudice from drug supply evidence and mental illness
The accused argued that evidence of his drug use and supply to young women, combined with his serious psychiatric diagnosis, created a real risk that a jury would be reluctant to acquit for fear of releasing a dangerous mentally ill man into the community. Lonergan J rejected this argument. The authorities make clear that courts should not proceed on the basis that a jury will ignore directions given to it (at [35]). The combination of factors raised by the accused amounted only to an ill-defined apprehension or vague suspicion that a fair trial could not be given, which is an insufficient basis for ordering a judge alone trial (at [36]).
Judicial notice
The court also rejected the submission that it could take judicial notice under s 144 of the Evidence Act 1995 (NSW) that the identified factors, taken together, demonstrate a fair jury trial was impossible (at [37]).
Community standards and the role of a jury
The court rejected the accused's submission that community standards played only a limited role in the trial (at [30]). Both self-defence and the partial defence of substantial impairment squarely require the application of community standards, and s 132(5) of the Criminal Procedure Act specifically identifies community standards as a factor enlivening the discretion to refuse a judge alone trial (at [31]). A jury of twelve assessing self-defence and substantial impairment is more consistent with the interests of justice than a sole judicial arbiter in the circumstances of this case (at [34]).
Trial length and efficiency
The court declined to find that likely trial efficiency, measured by a possible week's saving in a judge alone trial, weighed in favour of the application. The three-week trial estimate did not raise the kind of concerns about length and complexity that might make efficiency a relevant factor in the mix (at [23]).
Orders Made
- The application for trial by judge alone is refused.
Key Takeaways
- Under s 132(1) of the Criminal Procedure Act 1986 (NSW), the test for ordering a judge alone trial over prosecutorial objection is whether it is in the interests of justice, and that test does not equate with the interests of the accused alone (at [7], [9]).
- A generalised or ill-defined apprehension that a jury will be prejudiced by potentially inflammatory evidence, such as drug supply or the accused's mental illness, is insufficient to justify removing the matter from a jury (at [36]).
- Where the trial defences, specifically self-defence and substantial impairment, centrally require the application of community standards, those are matters that the authorities and the Criminal Procedure Act recognise as weighing against a judge alone trial (at [30]-[31]).
- Courts must not approach a judge alone application on the premise that juries will disregard proper directions; the assumption that juries follow judicial directions remains a foundation of the criminal justice system (at [35]).
- Comparative trial efficiency, measured by a modest potential saving in time, does not constitute a sufficient reason to order a judge alone trial, particularly where no exceptional circumstances around trial length or funding exist (at [23]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
Cases
- R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
- R v Gittany [2013] NSWSC 1503
- R v Haydar (No. 2) [2017] NSWSC 131
- R v Simmons; R v Moore (No. 4) (2015) 249 A Crim R 120; [2015] NSWSC 259
- R v Stanley [2013] NSWCCA 124
- Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9