Citation: R v Coss (No 2) [2022] NSWSC 792
Court: Supreme Court of New South Wales
Date: 24 May 2022
Judge: Dhanji J
Background
The accused was arraigned in the Supreme Court on a charge of murder. He elected to be tried by judge alone rather than by a jury, submitting a signed election form dated 26 April 2022. The Crown Prosecutor also signed the form, indicating the prosecution's consent to the election.
The election form noted that the accused had received legal advice about the effect of a judge-alone trial from his solicitor at Legal Aid NSW. It also recorded that he understood he could withdraw his election at any time before the date fixed for trial.
Legal Issues
- Whether the statutory requirements under s 132 of the Criminal Procedure Act 1986 (NSW) for a judge-alone trial order were satisfied, specifically:
- Whether both the accused and the prosecutor had agreed to a judge-alone trial
- Whether the accused had sought and received advice from an Australian legal practitioner about the effect of such an order
Decision
Section 132(1) of the Criminal Procedure Act 1986 (NSW) permits an accused or prosecutor in Supreme Court criminal proceedings to apply for an order that the accused be tried by judge alone. Under s 132(2), the court must make that order where both the accused and the prosecutor agree to it.
Dhanji J was satisfied that both conditions for a mandatory order under s 132(2) were met. The accused had made his election and the Crown Prosecutor had recorded consent on the same form.
The court also considered s 132(6), which prohibits the making of a judge-alone order unless the accused has sought and received advice about its effect from an Australian legal practitioner. The solicitor from Legal Aid NSW had provided that advice, and the court was satisfied that this requirement was fulfilled.
Having found all statutory conditions met, Dhanji J made the order for a judge-alone trial.
Orders Made
- The accused is to be tried by judge alone.
Key Takeaways
- Under s 132(2) of the Criminal Procedure Act 1986 (NSW), the Supreme Court is obliged to order a judge-alone trial where both the accused and the prosecutor agree, leaving no residual discretion to refuse once those conditions are established.
- Section 132(6) imposes a mandatory precondition: the court cannot make a judge-alone order unless satisfied the accused has received advice from an Australian legal practitioner about the effect of the order.
- A signed election form countersigned by the Crown Prosecutor, and recording that legal advice had been obtained, was sufficient to satisfy both the agreement and the legal-advice requirements in this case.
- The accused's right to withdraw the election at any time before the trial date was recorded on the election form, consistent with the statutory framework.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 132 (including ss 132(1), 132(2), and 132(6))
Cases cited: None cited in the judgment.