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Supreme Court 16 December 2021

R v AN; R v LM

[2021] NSWSC 1657

Assault & violenceHomicide
CRIMINAL LAW AGGRAVATED KIDNAPPING CHARGE FOUNDATIONAL OFFENCE MURDER CHARGE APPLICATION FOR JUDGE ALONE TRIAL ORDER COMMUNITY STANDARDS

Citation: R v AN; R v LM [2021] NSWSC 1657
Court: Supreme Court of New South Wales
Date: 16 December 2021
Judge: Walton J

Background

Two accused (identified only by initials due to suppression) were jointly charged with aggravated kidnapping and the murder of a man at Broulee, New South Wales, on 2 February 2020. Both accused were juveniles at the time of the offending. The kidnapping charge was brought under s 86(3) of the Crimes Act 1900 (NSW), and the murder charge under s 18(1)(a) of the same Act.

Both accused pleaded guilty to the foundational kidnapping offence. They each entered a not guilty plea to the murder charge and jointly applied for the murder trial to be heard by a judge alone, pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW). The Crown opposed the application.

The central factual dispute in the murder trial was narrow: both accused substantially accepted the Crown's factual narrative regarding their joint criminal enterprise, but disputed the cause of death, which was the subject of competing expert forensic pathology and pharmacology evidence.

  • Whether it was in the interests of justice, under s 132 of the Criminal Procedure Act 1986 (NSW), to order a judge alone trial for the murder charge
  • Whether the limiting considerations set out in s 132(5) of that Act were engaged in light of the accused's guilty pleas to the foundational kidnapping offence
  • What weight, if any, should be given to COVID-19 related delays in the jury trial system, including under s 365 of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)
  • Whether the juvenile status of the accused was a relevant consideration bearing on the interests of justice

Decision

Walton J found that the sole contested issue at trial would be causation: specifically, whether the acts of the accused pursuant to a joint criminal enterprise were a substantial and significant cause of the deceased's death. The competing expert evidence came from two forensic pathologists (Dr I'Ons for the Crown and Professor Duflou for the defence) and a forensic pharmacologist (Professor McGregor for the defence). Because both accused had substantially accepted the factual matrix underpinning the Crown case, the limiting factors in s 132(5) of the Criminal Procedure Act were found not to be engaged.

His Honour noted that a judge is well placed to evaluate complex and competing medical expert evidence, and that the availability of written reasons for verdict was a factor weighing in favour of a judge alone trial, consistent with the Court of Criminal Appeal's approach in R v Belghar [2012] NSWCCA 86. The relative efficiencies of a judge alone trial, including the reduced burden on jurors and the shorter likely duration of proceedings, were also relevant considerations.

On the COVID-19 delay issue, Walton J drew on the reasoning in R v Jaghbir (No 2) [2020] NSWSC 955 and R v Kerollos [2020] NSWSC 1758, finding that even though jury trials had recommenced in the Supreme Court, the potential for significant delay in securing a jury trial remained a meaningful consideration. The judge held that this consideration carried even greater force given that both accused were juveniles, for whom the continuation of uncertainty and delay carried particular weight in the interests of justice calculus.

Walton J was ultimately satisfied that it was in the interests of justice for the murder charge to be tried by a judge alone, and made the order accordingly.

Orders Made

  • The trial of AN and LM on the amended indictment is to be heard by a judge alone, pursuant to s 132(4) of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • Where an accused substantially accepts the Crown's factual case and the only contested issue is a narrow one involving complex medical expert evidence, this weighs in favour of a judge alone trial under s 132 of the Criminal Procedure Act 1986 (NSW).
  • A guilty plea to the foundational offence underlying a more serious charge can be a relevant factor in an application for judge alone trial, as it may substantially narrow the live issues at trial and reduce the significance of the s 132(5) limiting considerations.
  • The availability of written reasons for verdict is a recognised consideration supporting a judge alone trial, as confirmed by the Court of Criminal Appeal in Belghar.
  • Remaining COVID-19 related delays in the jury trial system continued to be a relevant factor in the interests of justice assessment even after jury trials had formally recommenced, particularly where the accused were juveniles.
  • Under s 365 of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), the omission of the s 132(5) limiting factors was designed to facilitate more judge alone trials during the pandemic, though applications still fall to be determined under s 132.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 86(3)
- Criminal Procedure Act 1986 (NSW), ss 132, 132(1), 132(4), 132(5), 143, 365
- COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), ss 353, 365

Cases
- Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
- R v Belghar [2012] NSWCCA 86
- R v Camilleri [2020] NSWSC 951
- R v Coleman [2020] ACTSC 97
- R v Hadler [2018] NSWSC 1151
- R v Jaghbir (No 2) [2020] NSWSC 955
- R v Johnson [2020] NSWDC 153
- R v Kerollos [2020] NSWSC 1758
- R v Sean Lee King [2013] NSWSC 448
- R v McKnight [2014] NSWSC 398
- R v Stanley [2013] NSWCCA 124
- R v Warren Scott [2021] NSWSC 1004
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11