Citation: R v Quintana (No. 5) [2020] NSWSC 724
Court: Supreme Court of New South Wales
Date: 11 June 2020
Judge(s): Lonergan J
Background
The accused faced a charge of murder arising from an alleged stabbing on 18 February 2018. The Crown case was that he stabbed the deceased during an altercation at his unit, intending to cause grievous bodily harm. The accused intended to raise self-defence and the partial defence of substantial impairment by reason of his long-term treatment-resistant schizophrenia, though there was no question about his fitness to stand trial.
The trial had already been vacated once when the Crown failed to secure the attendance of a critical eyewitness, Ms Tairi, who had left Australia for New Zealand in breach of her bail conditions. A replacement trial date of 28 April 2020 was also lost when the COVID-19 pandemic created further obstacles, including New Zealand's lockdown preventing any extradition and difficulties securing an interpreter and elderly witnesses.
In January 2020, Lonergan J had refused an earlier application by the accused for a judge alone trial, primarily on the basis of the considerations under section 132(5) of the Criminal Procedure Act 1986 (NSW). Following the enactment of emergency COVID-19 legislation and a fresh trial listing for 26 October 2020, the accused renewed the application. The Crown opposed it.
Legal Issues
- Whether section 365 of the Criminal Procedure Act 1986 (NSW), inserted by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), applied to the accused's application in place of section 132.
- Whether the considerations that had informed the refusal of the earlier application under section 132(5) retained the same primacy under the new legislative framework.
- Whether, on the interests of justice test under section 365, it was appropriate to order a judge alone trial given the circumstances surrounding the witness Ms Tairi and the ongoing COVID-19 pandemic.
Decision
Issue 1: Which provision governs the application
Lonergan J held that section 365 temporarily replaces section 132 as the operative provision for judge alone trial applications during the COVID-19 emergency (at [37]). Section 365(3) expressly states that it applies "despite any other provision of this Act, including s 132 and 132A." The Attorney-General's Second Reading Speech confirmed the legislative purpose was to "facilitate more judge only trials" in response to the pandemic (at [38]). The Crown's submission, that the Court should revert to section 132 because some jury trials were resuming, was rejected (at [35]-[36]).
Issue 2: Status of section 132(5) considerations
The court found that the omission of any specific reference to the section 132(5) discretion in section 365 signalled that those considerations were subordinated to the need for the business of the court to continue (at [8]). The court concluded that a step-by-step analysis of section 132(5) factors was not required, though those matters were borne in mind on the broader interests of justice inquiry (at [40]).
Issue 3: Interests of justice
The court identified a combination of factors favouring a judge alone trial. Ms Tairi's extradition from New Zealand remained uncertain, complicated both by COVID-19 and by her own pending criminal proceedings there (at [43]). Her conduct, including deliberately breaching bail, obtaining a passport unlawfully, and leaving the country to avoid trial, raised real doubts about her willingness to cooperate with sustained cross-examination, which was difficult to manage before a jury and risked the loss of successive juries (at [45], [47]).
COVID-19 also posed direct risks to a jury trial: illness among jurors could halt proceedings and force re-empanelment, potentially more than once (at [49]). The accused had already been in custody since February 2018 and his trial had been delayed by almost eight months through no fault of his own (at [41]). While the court acknowledged that defences engaging community standards are ordinarily better assessed by a jury, it found that these were not ordinary circumstances and that the interests of justice required the protection of the accused and witnesses from further unpredictable delays (at [59]).
Orders Made
- The proceedings are to be tried by judge alone.
Key Takeaways
- Section 365 of the Criminal Procedure Act 1986 (NSW), inserted by the COVID-19 emergency legislation, temporarily replaced section 132 as the mechanism for judge alone trial applications, and the court held that the section 132(5) considerations no longer carried the same primacy during the period the provision remained in force (at [37]).
- Under the section 365 interests of justice test, the court does not need to conduct a separate analysis of the section 132(5) factors, though those matters may inform the broader inquiry (at [40]).
- A witness's documented history of flouting justice processes, including bail breaches, unlawful acquisition of travel documents, and flight overseas, constituted a real (not merely hypothetical) risk to the integrity of a jury trial and weighed in favour of a judge alone trial (at [57]-[58]).
- COVID-19 related risks to juror health and availability, capable of interrupting or collapsing a trial mid-hearing, formed a distinct and concrete ground supporting the interests of justice finding (at [49]-[50]).
- Even where the defences raised, here self-defence and substantial impairment, would ordinarily benefit from jury assessment of community standards, extraordinary circumstances created by the pandemic can outweigh that consideration when combined with other factors causing delay and uncertainty (at [59]).
Legislation and Cases Referenced
Legislation
- COVID-19 Legislation Amendment ( Emergency Measures) Act 2020 ( NSW)
- Criminal Procedure Act 1986 ( NSW)
- Evidence Act 1995 (NSW)
Cases
- R v Quintana [2020] NSWSC 22