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Supreme Court 2 June 2023

R v Niguidula (No 8)

[2023] NSWSC 593

Homicide
CRIMINAL LAW TRIAL PROCEEDINGS MURDER APPLICATION FOR TRIAL BY JUDGE ALONE LEAVE SOUGHT WHERE PREVIOUS APPLICATION REFUSED

Citation: R v Niguidula (No 8) [2023] NSWSC 593
Court: Supreme Court of New South Wales
Date: 2 June 2023
Judge(s): Dhanji J

Background

The accused faced trial on a charge of murder arising from the death of her partner at their Sydney accommodation in November 2019. She had been in custody since her arrest in December 2019, a period of approximately three and a half years by the time of this application. The matter had been listed for trial on three separate occasions before finally proceeding in May 2023.

When the trial eventually commenced, the first empanelled jury was discharged at an early stage after the Crown indicated a key witness would not be called, having already referred to that witness's anticipated evidence in its opening address. A new jury panel was available the following day.

Overnight, the accused filed a second application to be tried by judge alone. Because this second application was made within 28 days of the fixed trial date, leave was required under s 132A of the Criminal Procedure Act 1986 (NSW) before the application could even be considered. A prior application for judge-alone trial had already been dismissed by Wilson J in March 2023.

  • Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 (NSW) for a second application for trial by judge alone, where a previous application had already been refused
  • Whether the circumstances arising since the first refusal, including jury discharge, media reporting, and the history of delay, were sufficient to justify departing from trial by jury
  • Whether the intended partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW) had any bearing on the appropriate mode of trial

Decision

Dhanji J refused leave. The judgment was delivered to explain the reasons behind an order already made on 17 May 2023. His Honour considered whether anything had changed since Wilson J dismissed the first application, and concluded that no sufficient new circumstances had emerged to warrant a different result.

The accused's primary arguments included the extended time she had spent in custody, the risk of prejudice from media reporting during the period between the discharge of the first jury and the empanelling of a second, and concerns about further delay. Dhanji J acknowledged the very long period the accused had spent in custody awaiting trial but did not find that this consideration, or any of the others advanced, outweighed the factors favouring a jury trial.

Central to his Honour's reasoning was the nature of the partial defence the accused intended to raise: substantial impairment by abnormality of mind under s 23A of the Crimes Act. His Honour agreed with Wilson J's earlier analysis, which drew on authority holding that s 23A gives rise to a question quintessentially suited to a jury. The legislature, when enacting the provision, had specifically contemplated that the second element of the defence required a moral assessment by the jury as to whether the circumstances warranted a reduction from murder to manslaughter, and had made expert opinion on that question inadmissible to reinforce that focus. Section 132(5) of the Criminal Procedure Act, which directs attention to whether the nature of the case makes it suitable for judge-alone trial, therefore militated strongly in favour of retaining the jury.

Dhanji J did not hold that the presence of a substantial impairment defence would always be determinative, but found that nothing arising since Wilson J's refusal had caused those favourable considerations to be outweighed.

Orders Made

  • Leave to make an application for trial by judge alone refused.

Key Takeaways

  • A second application for trial by judge alone requires leave under s 132A of the Criminal Procedure Act 1986 (NSW) where it is made within 28 days of the fixed trial date, and the court will scrutinise whether changed circumstances justify reconsidering a prior refusal.
  • Where an accused intends to raise the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW), this weighs strongly in favour of trial by jury, because the defence requires a moral assessment that the legislature intended a jury to make.
  • The Supreme Court confirmed that s 132(5) of the Criminal Procedure Act directs attention to the character of the issues in dispute, and that a substantial impairment defence is of a character the legislature ordinarily contemplated should be resolved by a jury.
  • Extended pre-trial custody, even of approximately three and a half years, does not of itself provide a sufficient basis to displace the ordinary entitlement to a jury trial where the nature of the defence favours that mode.
  • In refusing the application, Dhanji J did not treat the presence of a substantial impairment defence as an absolute bar to a judge-alone trial, leaving open the possibility that sufficiently compelling countervailing circumstances could, in a different case, tip the balance the other way.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Criminal Procedure Act 1986 (NSW), ss 132, 132A, 144
- Mutual Assistance in Criminal Matters Act 1987 (Cth)

Cases:
- Alameddine v R [2022] NSWCCA 219
- R v Abdaly; R v Hosseinishoja (No 3) [2022] NSWSC 1511
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785
- R v Niguidula [2023] NSWSC 290 (Wilson J, first judge-alone application)
- R v Niguidula (No 3) [2023] NSWSC 481
- R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259
- Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986
- R v Niguidula (Supreme Court (NSW), Cavanagh J, 4 March 2022, unreported)