Citation: R v Macdonald; R v Maitland (No 2) [2022] NSWSC 1208
Court: Supreme Court of New South Wales
Date: 18 August 2022
Judge(s): Dhanji J
Background
Two accused faced a retrial in the Supreme Court. The first accused faced two counts of wilful misconduct in public office, with the alleged offences occurring in August and December 2008. The second accused faced two counts of aiding, abetting, counselling and procuring those same offences.
Both accused had previously stood trial on these charges. The current proceedings were therefore a retrial, and both men elected to be tried by a judge alone rather than by a jury.
The prosecution, represented by the Deputy Senior Crown Prosecutor on behalf of the Director of Public Prosecutions, consented to the election in each case.
Legal Issues
- Whether the requirements of s 132 of the Criminal Procedure Act 1986 (NSW) were satisfied so as to obligate the court to make a judge-alone trial order
- Whether each accused had sought and received advice about the effect of a judge-alone order from an Australian legal practitioner, as required by s 132(6)
Decision
Dhanji J considered the prescribed election forms signed by both accused and the prosecution's consent, alongside evidence about the legal advice each accused had received. The first accused's form confirmed he had received advice from his solicitor, who was acting for him in the current proceedings. That was sufficient to satisfy the court that appropriate legal advice had been obtained.
The second accused gave oral evidence before the court that he had received advice from a senior counsel who had also represented him in the first trial. Given that counsel's familiarity with the proceedings, the court was satisfied that the advice met the requirements of s 132(6).
Under s 132(2), where both the accused and the prosecution agree to a judge-alone trial, the court must make the order. With both conditions met, namely agreement by all parties and confirmation of legal advice for each accused, the mandatory terms of the provision were engaged and the order was made.
Orders Made
- The trial of both accused on the indictment dated 6 February 2017 is to proceed before a judge alone.
- The order covers two counts of wilful misconduct in public office against the first accused and two counts of aiding, abetting, counselling and procuring those offences against the second accused.
Key Takeaways
- Under s 132(2) of the Criminal Procedure Act 1986 (NSW), a court must make a judge-alone trial order where both the accused and the prosecution consent; the provision is mandatory once those conditions are satisfied.
- Section 132(6) requires the court to be satisfied that the accused has sought and received advice from an Australian legal practitioner before any judge-alone order is made, and that condition operates as a threshold regardless of consent by all parties.
- Advice received from a solicitor actively on the record in the proceedings, or from a senior counsel who appeared in a prior trial of the same matter, can satisfy the legal advice requirement in s 132(6).
- Oral evidence given by an accused at the application hearing can be used to establish the identity and qualifications of the legal practitioner who provided the requisite advice.
- In dismissing the need for any further inquiry, the Supreme Court confirmed that the combined operation of ss 132(1), (2) and (6) produces a straightforward mandatory outcome once consent and legal advice are both established.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 132 (including subss (1), (2) and (6))
Cases cited: None referenced in the judgment.