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Supreme Court 24 June 2020

R v McCloskey (No 2)

[2020] NSWSC 786

Homicide
CRIMINAL PROCEDURE TRIAL WHERE TRIAL PREVIOUSLY VACATED WHERE THAT RISK UNACCEPTABLE ORDER MADE FOR JUDGE ALONE TRIAL

Citation: R v McCloskey (No 2) [2020] NSWSC 786
Court: Supreme Court of New South Wales
Date: 24 June 2020
Judge: Davies J

Background

The accused faced trial for the murder of John Salafia, alleged to have occurred on 23 June 2013. The trial was scheduled to commence on 29 June 2020 and was estimated to run for four to six weeks. The accused had been on remand throughout proceedings, and a prior joint trial had been vacated in September 2019.

The accused applied on 15 June 2020 for the trial to proceed before a judge alone under s 132A(1) of the Criminal Procedure Act 1986 (NSW). Because the application was made fewer than 28 days before the trial date, the accused first needed leave from the Court to bring it.

Complicating matters, Wright J had already refused an earlier application by the accused (together with a co-accused) for a judge-alone trial in 2019. That earlier refusal engaged s 130A of the Criminal Procedure Act, which makes pre-trial orders binding on a subsequent trial judge unless it would not be in the interests of justice for the order to remain binding.

  • Whether leave should be granted under s 132A to bring the application fewer than 28 days before the trial date
  • Whether, under s 130A, the interests of justice required that Davies J not be bound by Wright J's earlier refusal of a judge-alone trial
  • Whether the COVID-19 pandemic, and the risk of a mid-trial infection disrupting proceedings, constituted a materially changed circumstance sufficient to depart from the earlier order
  • Whether the other factors raised by the accused (bad character evidence, tendency evidence, anonymous witnesses, and adverse media coverage) independently warranted a judge-alone trial

Decision

Davies J granted leave for the late application without difficulty. The accused had foreshadowed the application on multiple occasions earlier in 2020, the Court had convened a directions hearing on 31 March 2020 specifically to address the possibility of a judge-alone trial in light of the pandemic, and the Crown did not oppose the grant of leave.

On the s 130A question, the Court identified the critical issue as whether circumstances had materially changed since Wright J's 2019 refusal. Davies J acknowledged that Wright J had dealt thoroughly with the various factors raised by the accused, including the bad character evidence, the tendency evidence concerning the alleged true offender, the anonymous RS witnesses giving evidence via audiovisual link, and prior adverse media coverage. The Court concluded that those factors alone would not have justified departing from the earlier order.

The decisive new circumstance was the COVID-19 pandemic. Davies J took judicial notice that, although community transmission in New South Wales had been low for some weeks, it had not been eliminated. Particular weight was placed on the then-deteriorating situation in Victoria, the open border between the two states, and the imminent Victorian school holidays creating significant potential for movement of people into New South Wales. A recent District Court trial had already been interrupted by a juror potentially testing positive, illustrating the concrete nature of the risk.

Given the estimated six-week duration of the trial, the prior vacation of the proceedings in 2019, and the accused's continued remand, Davies J held that the risk of a second trial vacation was unacceptable. The pandemic constituted genuinely new circumstances not before Wright J, and it was therefore not in the interests of justice for the earlier refusal to remain binding. The Court made the order for a judge-alone trial.

Orders Made

  • Leave granted to bring the application fewer than 28 days before the trial date
  • Order made under s 132A(1) of the Criminal Procedure Act 1986 (NSW) that the accused be tried by judge alone

Key Takeaways

  • Under s 130A of the Criminal Procedure Act 1986 (NSW), a pre-trial order made by one judge binds the trial judge unless, in the trial judge's opinion, it would not be in the interests of justice for the order to remain binding.
  • The COVID-19 pandemic, and the concrete risk of mid-trial disruption in a lengthy matter, constituted materially changed circumstances sufficient to displace a prior refusal of a judge-alone application made before the pandemic arose.
  • Where a trial has already been vacated once and the accused remains on remand, the cumulative effect of a further potential vacation weighs significantly in the interests-of-justice analysis.
  • Factors such as bad character evidence, tendency evidence, anonymous witnesses, and historical adverse media coverage did not independently justify departing from the earlier order, as those matters had been thoroughly addressed by the first judge.
  • A court may take judicial notice of publicly known developments in the pandemic, including conditions in neighbouring states and the movement of persons across open borders, when assessing the risk of trial disruption.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 130A, 132A
- Criminal Appeal Act 1912 (NSW), s 5F

Cases
- R v McCloskey; R v Hamalainen (No 2) [2019] NSWSC 1176
- Hamalainen v R [2019] NSWCCA 276
- Redman v R [2015] NSWCCA 110
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259
- R v McNeil [2015] NSWSC 357
- Doney v The Queen (1990) 171 CLR 207