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Court of Criminal Appeal 7 October 2022

Alameddine v R

[2022] NSWCCA 219

Assault & violenceTheft & property
PRACTICE AND PROCEDURE APPEAL FROM INTERLOCUTORY ORDER APPEAL ALLOWED LEAVE GRANTED ORDERS FOR JUDGE ALONE TRIAL MADE

Citation: Alameddine v R [2022] NSWCCA 219
Court: Court of Criminal Appeal
Date: 7 October 2022
Judge(s): Beech-Jones CJ at CL, Hamill J, N Adams J

Background

Two co-accused faced joint trial in the District Court on charges of robbery with wounding and assault with intent to take a motor vehicle. Both eventually sought orders for trial by judge alone under s 132 of the Criminal Procedure Act 1986 (NSW). Because that application was made less than 28 days before the date fixed for trial, they first required leave under s 132A(1) of that Act.

The Crown opposed the grant of leave on grounds of lateness, but indicated that if leave were granted it would consent to the judge-alone order. The trial judge refused leave, finding the explanation for the delay unpersuasive and expressing concern about the appearance of judge shopping. Both accused applied to the Court of Criminal Appeal for leave to appeal that refusal under s 5F(3) of the Criminal Appeal Act 1912 (NSW).

A central complicating factor was that s 132A(2)(a) prevents one co-accused from applying for a judge-alone trial unless all co-accused join in the application. One accused had been ready to apply since August 2022 but was legally unable to proceed until the other finally consented, which did not occur until the morning the trial was due to begin.

Legal Issues

  • Whether a grant of leave is required under s 132A where the Crown consents to the judge-alone order under s 132(2), or whether Crown consent bypasses the leave requirement as a matter of statutory construction
  • Whether a sufficient explanation for the lateness of the application can dispel the appearance of judge shopping so as to warrant a grant of leave under s 132A
  • Whether the trial judge erred in the exercise of his discretion to refuse leave, including by failing to take into account material considerations

Decision

Ground 1 (statutory construction): The court rejected the argument that Crown consent to the judge-alone order removed the requirement to obtain leave under s 132A. Section 132(2) is not a freestanding power; it directs how the court deals with an application made under s 132(1). Section 132A(1) applies to any application for an order under s 132, including one contemplated by s 132(2). The court noted that s 132(7) expressly overrides s 132A in specific circumstances, and the absence of any equivalent express words in s 132(2) confirmed that Crown consent alone does not dispense with the leave requirement (at [23]).

Ground 2(a) (Hamdi's explanation for delay): The court found the trial judge erred by attributing fault to Hamdi for failing to procure his co-accused's consent. The trial judge overlooked that the two accused were subject to bail conditions preventing them from communicating with each other, and that Hamdi's application was legally blocked until the co-accused consented. Hamdi's explanation was not only reasonable on its face but was plainly inconsistent with any suggestion of judge shopping. By treating the explanation as inadequate, the trial judge failed to take into account a material consideration in the exercise of the s 132A discretion (at [28]).

Ground 2(b) (Rafat's explanation and the appearance of judge shopping): The court held that, although the trial judge acknowledged neither accused engaged in judge shopping, his Honour then reasoned as though an "appearance" of judge shopping could persist even after accepting their explanations. That was an error of principle. Once an explanation is accepted as dispelling the suggestion of judge shopping, no residual appearance of judge shopping remains to ground a refusal of leave (at [30]).

Ground 3 (Crown consent as a material consideration): The trial judge failed to take into account the strength of the application for a judge-alone order. Where the Crown consents, that consent is a strong factor in favour of granting leave under s 132A, even if not determinative. In this case, had leave been granted, the judge-alone order would have been mandatory. That was a material consideration the trial judge did not weigh (at [31]).

Orders Made

  • Leave to appeal granted to both applicants under s 5F(3)(a) of the Criminal Appeal Act 1912
  • Appeal allowed
  • Trial judge's order refusing leave set aside
  • Leave granted to each applicant under s 132A(1) of the Criminal Procedure Act 1986 to apply for a judge-alone trial
  • Order made under s 132(2) that each applicant be tried by a judge alone
  • Balance of proceedings remitted to the District Court

Key Takeaways

  • Under s 132A of the Criminal Procedure Act 1986, an explanation for a late application for a judge-alone trial can dispel the appearance of judge shopping if it discloses reasons for the application other than knowledge of the trial judge's identity. Once such an explanation is accepted, no residual appearance of judge shopping survives to justify refusing leave (at [19]-[20], [30]).

  • Where an accused in a joint trial is legally prevented from applying for a judge-alone trial because a co-accused has not yet consented (as required by s 132A(2)(a)), that statutory obstacle itself constitutes a reasonable explanation for the delay that is wholly inconsistent with judge shopping (at [28]).

  • Crown consent to a judge-alone order is a strong factor in favour of granting leave under s 132A, though it is not determinative. A trial court that overlooks this consideration fails to take into account a material factor and thereby miscarries in the exercise of its discretion (at [24], [31]).

  • The Court of Criminal Appeal confirmed that s 132(2) does not operate as a freestanding power capable of bypassing the leave requirement in s 132A. The absence of any express override provision (comparable to s 132(7)) means Crown consent alone cannot dispense with the need for leave (at [23]).

  • Concerns about the appearance of judge shopping in both the Supreme Court and the District Court can be addressed not only through explanations given to the court but also through case management procedures, including allocating the matter to a different judge following a successful leave application (at [22]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- House v King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Dawson [2022] NSWSC 552
- R v Jenkin [2018] NSWSC 634
- R v Perry (1993) 29 NSWLR 589
- R v Quami & Ors (No 14) [2016] NSWSC 274
- R v Simmons; R v Moore (2015) 249 A Crim R 120; [2015] NSWSC 259