Citation: R v Barolia (No. 1) [2021] NSWDC 695
Court: District Court of New South Wales
Date: 13 September 2021
Judge(s): Neilson DCJ
Background
The accused faced a charge of recklessly wounding another person, contrary to s 35(4) of the Crimes Act 1900. The victim was the accused's son.
Both parties filed an election for trial by judge alone on the day the trial was listed to commence. Because the election had not been filed at least 28 days before the hearing date, the parties required the court's leave under s 132A of the Criminal Procedure Act 1986 to proceed on that basis.
The agreed statement of key issues identified two questions for determination: whether a special verdict of "act proved but not criminally responsible" could be entered, and which legislative scheme governed that question, the Mental Health (Forensic Provisions) Act 1999 or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
Legal Issues
- Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 to allow a late election for trial by judge alone
- Whether the accused lacked criminal responsibility, having regard to psychiatric and toxicological evidence
- Which mental health legislation applied to the special verdict question
Decision
Neilson DCJ granted leave for the parties to rely on their election under s 132(1) of the Criminal Procedure Act 1986 and made an order for trial by judge alone.
The court noted that the underlying facts were agreed between the parties and the actus reus (the physical act constituting the offence) was not in dispute. The only live issue was the mens rea, meaning whether the accused held the requisite mental state for the offence.
The court observed that the matter involved psychiatric and toxicological evidence, and characterised this as particularly suited to determination by a judge sitting alone. A judge, unlike a jury, is required to provide reasons for their findings, which the court considered appropriate where complex medical evidence and questions of criminal responsibility were at stake.
The question of which legislative scheme applied was described as purely a matter of law, reinforcing the suitability of judge-alone determination.
Orders Made
- Leave granted to the parties to rely upon the election filed under s 132(1) of the Criminal Procedure Act 1986
- Order made for trial by judge alone
Key Takeaways
- The District Court confirmed that leave under s 132A of the Criminal Procedure Act 1986 can be granted even where a judge-alone election is filed on the day of trial, provided the circumstances justify it.
- Where the physical act of an offence is agreed and the sole contested issue is the accused's mental state, that context can support a finding that judge-alone trial is appropriate.
- Complex psychiatric and toxicological evidence is well suited to judge-alone proceedings because a judge must give reasons, providing transparency in the evaluation of expert material.
- A purely legal question, such as which statutory regime governs a special verdict, reinforces the appropriateness of judge-alone determination rather than jury trial.
- Under s 132A, the absence of a timely election does not automatically preclude a judge-alone order; the court retains a discretion to grant leave having regard to the nature of the issues.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(4)
- Criminal Procedure Act 1986 (NSW), ss 132(1), 132A
- Mental Health (Forensic Provisions) Act 1999 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases cited: No cases were cited in the judgment.