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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: NSW Court of Criminal Appeal
Date: 7 October 2022
Judges: Beech-Jones CJ at CL, Hamill J, N Adams J

Background

Two co-accused faced trial in the District Court on charges of robbery with wounding and assault with intent to take a motor vehicle, alleged to arise from a joint criminal enterprise. Their trial was originally listed to commence on 5 September 2022 but was adjourned to 14 September 2022 due to senior counsel for one applicant being engaged in a Supreme Court murder trial.

On 14 September 2022, both applicants indicated to the trial judge that they intended to seek an order for trial by judge alone. Evidence before the trial judge showed that one applicant had flagged this preference to the Crown as early as August 2022, but could not formally apply without his co-accused's consent. The second applicant had been undecided and only confirmed his position after consulting his senior counsel on the day the trial was to begin.

Because both applications were made less than 28 days before the date fixed for trial, they each required leave under s 132A(1) of the Criminal Procedure Act 1986 (NSW). The Crown opposed the grant of leave on grounds of lateness but confirmed it would consent to the judge alone order itself if leave were granted. The trial judge refused leave, citing the "appearance" of judge shopping, even while accepting that neither applicant had actually engaged in judge shopping.

  • Whether leave under s 132A(1) of the Criminal Procedure Act is required where the Crown consents to the judge alone order, even if the application is made less than 28 days before the trial date.
  • Whether the trial judge erred by failing to account for the fact that one applicant was structurally unable to apply earlier because his co-accused had not yet consented.
  • Whether the trial judge erred in treating the "appearance" of judge shopping as a basis for refusal, after accepting that no actual judge shopping had occurred.
  • Whether the trial judge failed to weigh the strength of the underlying application for a judge alone order, particularly given the Crown's consent, when exercising the discretion under s 132A.

Decision

On the first issue, the Court confirmed that leave under s 132A(1) is required whenever an application for a judge alone trial is made less than 28 days before the date fixed for trial in the Supreme Court or District Court. Crown consent to the underlying order does not remove the need for leave.

On the second issue, the Court found that the trial judge failed to take into account a material consideration: one applicant genuinely could not have applied earlier, because the application required his co-accused's consent and that consent was not forthcoming until 14 September 2022. That obstacle arose from the structure of the legislative regime, not from any conduct by that applicant. Ignoring this explanation amounted to an error in the exercise of discretion under the House v King principles.

On the third issue, the Court held that the trial judge acted on a wrong principle. Once the explanations offered by both applicants were accepted as dispelling any suggestion of judge shopping, there was no proper basis for refusing leave on the ground that an "appearance" of judge shopping might nonetheless linger. Accepting the explanation and still refusing leave on appearance grounds was internally inconsistent reasoning.

On the fourth issue, the Court held that the Crown's consent to the making of a judge alone order was a material consideration the trial judge failed to weigh. While Crown consent was not automatically determinative of the leave application, it was directly relevant to the strength of the underlying claim for relief and had to be brought into the analysis. Having found that the discretion miscarried on multiple grounds, the Court of Criminal Appeal re-exercised it, granted leave, and made the judge alone orders.

Orders Made

  • Leave to appeal granted to both applicants under s 5F(3)(a) of the Criminal Appeal Act 1912.
  • Appeal allowed.
  • The trial judge's order of 15 September 2022 refusing each applicant leave under s 132A(1) set aside.
  • Each applicant granted leave under s 132A(1) to apply for a judge alone order.
  • Pursuant to s 132(2), each applicant ordered to be tried by a judge alone.
  • The balance of the proceedings remitted to the District Court to the extent necessary.

Key Takeaways

  • Under s 132A(1) of the Criminal Procedure Act 1986, leave is required for a late judge alone application even where the Crown consents to the substantive order sought.
  • A co-accused's structural inability to apply earlier because the other accused had not consented constitutes a material consideration in a leave application and cannot be disregarded.
  • Where an explanation for a late application is accepted as dispelling any suggestion of judge shopping, the court cannot then refuse leave on the basis that an "appearance" of judge shopping remains. Accepting an explanation while still acting on its apparent residue is a wrong principle under House v King.
  • Crown consent to a judge alone order, while not automatically determinative of the leave question, is a material factor going to the strength of the underlying application and must be weighed.
  • In dismissing the appeal, the Court of Criminal Appeal re-exercised the discretion itself and made the orders the trial judge had refused, reflecting the CCA's power under s 5F(5)(b) of the Criminal Appeal Act 1912 to substitute its own exercise of discretion once error is established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 98, 154C
- Criminal Appeal Act 1912 (NSW), ss 5F(3), 5F(5)(b)
- Criminal Procedure Act 1986 (NSW), ss 132, 132A(1)

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