Citation: R v So (No 1) [2023] NSWSC 987
Court: Supreme Court of New South Wales
Date: 1 September 2023
Judge(s): Ierace J
Background
The accused, a transgender woman born in Cambodia with limited English proficiency, faced a charge of murder alleged to have been committed in regional New South Wales in June 2016. The trial was listed to commence at Dubbo in August 2023. The accused's background included prior engagement in sex work, which was expected to feature in the evidence.
Defence counsel foreshadowed a judge-alone application at a mention in July 2023, and a formal notice of motion was filed on 24 July 2023. Because this fell within 28 days of the trial commencement date, leave was required before any order could be made.
Two distinct concerns drove the application. First, significant logistical complexity surrounded a recorded police interview given through an interpreter, with disputed portions requiring additional expert interpreter evidence and a likely application for that evidence to be given by audiovisual link. Second, publicly available internet posts made after trial publicity were described as racist and sexist in nature.
Legal Issues
- Whether leave should be granted under s 132A(1) of the Criminal Procedure Act 1986 (NSW) for an out-of-time application for trial by judge alone
- Whether, leave being granted and the Crown not opposing the application, an order for trial by judge alone should be made under s 132(1) of the Act
Decision
Issue 1: Leave to apply out of time
The application was made within the 28-day period before trial, which under the Act requires the accused to obtain leave before any order can be made. Ierace J confirmed, following Alameddine v R [2022] NSWCCA 219, that Crown consent does not remove the need for leave in such circumstances (at [12]).
The court was satisfied that leave was appropriate. The evidentiary complexities involving the interpreter only came to light at a defence and Crown conference on 12 July 2023, shortly before the 28-day period began, and the court was informed of the likely application only marginally within it (at [13]). Importantly, the identity of the trial judge had been known to the parties for five months, which militated against any suggestion of judge-shopping (at [13]).
Issue 2: Order for trial by judge alone
The accused had received legal advice from both her solicitor and trial counsel about the effect of such an order, and had signed the required election form with the assistance of an interpreter (at [8], [14]). The Crown accepted that the accused's personal circumstances created a real risk of prejudice, and did not oppose the order (at [8], [11]). The parties also agreed that the case raised no factual issue requiring the application of objective community standards, satisfying the consideration under s 132(5) of the Act (at [10]).
Ierace J made the order for trial by judge alone (at [14]).
Orders Made
- Leave granted to the accused to apply for an order for trial by judge alone, pursuant to s 132A(1) of the Criminal Procedure Act 1986 (NSW)
- Order made that the accused be tried by judge alone, pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW)
Key Takeaways
- Under s 132A(1) of the Criminal Procedure Act 1986 (NSW), leave is required whenever a judge-alone application is made within 28 days of the trial date, even where the Crown consents to the order sought, as confirmed in Alameddine v R [2022] NSWCCA 219 (at [12]).
- Leave may be granted out of time where the circumstances prompting the application arose shortly before the 28-day period commenced and the delay is adequately explained (at [13]).
- The fact that the parties had known the trial judge's identity for several months before the application supported a finding that the application was not motivated by judge-shopping (at [13]).
- A combination of the accused's personal characteristics, potential jury prejudice arising from those characteristics, hostile online commentary following trial publicity, and logistical complexity in the evidence can collectively support a judge-alone order (at [5]-[9]).
- Once leave is granted and the Crown does not oppose the application, the court is required to make the order for trial by judge alone under s 132(2) of the Act (at [11], [14]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW) , ss 132, 132A
Cases
- Alameddine v R [2022] NSWCCA 219