Citation: R v Teshabaev [2023] NSWDC 670
Court: District Court of New South Wales
Date: 8 June 2023
Judge(s): Neilson DCJ
Background
An accused person faced trial on 15 counts, including three counts of grooming a child under 14 and 12 counts of sexual intercourse with a child under ten years of age. The accused and the complainant are cousins, and the alleged offences occurred at a shared family home in Bankstown over the period when the complainant was eight or nine years old. Several maximum penalties for the charged offences are life imprisonment.
The matter had a lengthy procedural history dating from the accused's arrest in December 2020. A trial before a judge and jury had been listed to begin before another judge in August 2022, but that trial did not proceed after the accused unsuccessfully challenged certain evidentiary rulings, first in the Court of Criminal Appeal and then by seeking special leave in the High Court, which was refused in March 2023.
With the new trial date fixed for 13 June 2023, the accused filed a notice of motion on 31 May 2023 seeking leave to apply out of time for a judge-alone trial. Under the Criminal Procedure Act 1986, such an application ordinarily must be made at least 28 days before the trial date.
Legal Issues
- Whether the court should grant leave to apply out of time for a trial by judge alone under s 132A of the Criminal Procedure Act 1986, given the application was filed only days before the trial date.
- Whether the reasons advanced, including alleged prejudice from certain evidence and the need for an interpreter, were sufficient to justify both the late application and the substantive order sought.
Decision
Issue 1: Leave to apply out of time
The application was filed on 31 May 2023, leaving only one business day before the trial date of 13 June 2023 (at [1]-[2]). The accused provided no sworn testimony to explain the delay (at [8]). Counsel offered two explanations: communication difficulties arising from language differences, and funding problems. The court found neither was adequately explained, noting that approximately two and a half years had elapsed since the accused was first charged (at [10]).
Issue 2: Alleged prejudice from the accused's admissions
The accused argued that his admissions in his police interview, including that he watched pornography and masturbated, and had not had sexual intercourse with a woman due to strict religious beliefs, would be prejudicially received by a jury. The court found that concern was not supported by any evidence (at [30]-[31]). The court noted that a jury, whose members may span a wide range of ages, might in some respects be better placed than a judge to assess evidence of that kind without undue prejudice (at [29]).
Issue 3: Tendency evidence
The tendency evidence consisted solely of evidence from the complainant herself, relating to charged and uncharged offences disclosed in three recorded interviews. The court characterised this as a "relatively straightforward, indeed simple case of tendency evidence" of a type commonly encountered in sexual assault proceedings (at [26]). No application had been made under s 137 of the Evidence Act 1995 to exclude the third interview as unfairly prejudicial (at [27]).
Issue 4: Need for an interpreter
The accused argued that his need for an Uzbeki or Russian interpreter supported the application. The court rejected this, observing that interpreter-assisted proceedings are common and arise in almost every second case before the court (at [33]). The accused also appeared to have sufficient English to participate in the hearing without an interpreter on the day of the application (at [8]).
Issue 5: Overall conclusion
The court held that an accused's perception of being better served by a judge-alone trial is relevant only where the supporting reasons are adequately explained and proven (at [35]). That threshold was not met here, and the application was dismissed (at [36]).
Orders Made
- The application for trial by judge alone is dismissed.
Key Takeaways
- Under s 132A of the Criminal Procedure Act 1986, an application for trial by judge alone in the District Court must ordinarily be filed at least 28 days before the trial date; leave is required to apply outside that period, and the court will scrutinise the adequacy of any explanation for the delay (at [3]).
- An accused's subjective belief that a judge-alone trial would be more favourable is not sufficient to ground the application; the reasons for that belief must be adequately explained and supported by evidence (at [35]).
- Tendency evidence consisting solely of the complainant's own accounts of charged and uncharged sexual offences is, on the facts here, a straightforward category of evidence that does not, of itself, justify a departure from trial by jury (at [26]).
- The need for an interpreter does not constitute a sufficient basis for a judge-alone trial application, given how commonly interpreter assistance arises in criminal proceedings (at [33]).
- Concerns about jury prejudice from particular admissions in evidence require evidentiary support; bare assertion by counsel without sworn testimony will not suffice (at [30]-[31]).
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 s 5F(3)
- Criminal Procedure Act 1986 s 132A
- Evidence Act 1995 s 137
Cases
- Arthurs v Western Australia [2007] WASC 182
- R v Belghar [2012] NSWCCA 86, [89]-[104]
- R v Simmons; R v Moore (No 4) [2015] NSWSC 258, [83]-[89]
- Redman v R [2015] NSWCCA 110, [ 13]-[16], [22]-[23]