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Supreme Court 22 November 2024

R v XY

[2024] NSWSC 1472

Sexual offences
CRIMINAL PROCEDURE APPLICATION FOR TRIAL BY JUDGE ALONE WHERE EARLIER JURY WAS HUNG EVIDENCE NOT COMPLEX

Citation: R v XY [2024] NSWSC 1472
Court: Supreme Court of New South Wales
Date: 22 November 2024
Judge: Davies J

Background

An accused stood trial in late September 2024 before Yehia J and a jury on two counts of sexually touching a person aged between ten and sixteen years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The complainant, who has a moderate intellectual disability, is the accused's daughter. The alleged touching occurred on two occasions between December 2021 and September 2022 at the family home in Batemans Bay.

The jury was unable to reach a verdict on either count and was discharged on 3 October 2024. A retrial was listed to commence on 2 December 2024 at Bega, with a one-week estimate.

Between trials, the Crown served a report from clinical expert Dr Sally McSwiggan, dated and served 6 November 2024, assessing the complainant's cognitive functioning and the impact of her intellectual disability on her memory and ability to recount events. The accused then applied for leave to make a late judge alone application under ss 132 and 132A of the Criminal Procedure Act 1986 (NSW), arguing the matter was better resolved by a judge alone.

  • Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 (NSW) to make a judge alone application within 28 days before the listed trial date
  • Whether it was in the interests of justice for the accused to be tried by judge alone under s 132(4) of the Criminal Procedure Act 1986 (NSW), given the hung jury, the complainant's intellectual disability, and the late-served expert report

Decision

Davies J granted leave for the late application under s 132A but refused the application for a judge alone trial. The central question under s 132(4) is whether a judge alone trial is in the interests of justice, and the accused bore the onus of establishing that it was.

The accused's principal argument was that Dr McSwiggan's report was too complex for a jury to understand and that the standard jury directions around credibility, complaint evidence, and unsworn testimony would be made more complicated by the expert's analysis of memory encoding and cognitive functioning. Davies J rejected this characterisation. The court found the report was not so complex as to require a judge alone trial, and that the evidence did not give rise to jury directions of unusual difficulty. The Crown had also indicated it did not intend to rely on the whole of the report, which further reduced the weight of the complexity argument, although the court assessed the application on the assumption the full report would be tendered.

Davies J also rejected the proposition that finality, meaning avoiding the cost and stress of a third trial, was itself a sufficient reason to order a judge alone trial. Consistent with established authority, the court held that credibility being a central issue in a trial is a factor that favours jury trial rather than judge alone. The complainant's unsworn evidence and the competing accounts of the parties meant that witness credibility lay at the heart of the case. Drawing on the reasoning in cases including R v Dawson, R v White, and R v Mapp, the court observed that the collective assessment of witness credibility by twelve jurors carries inherent advantages over assessment by a single judicial mind, particularly where the witness may present as cognitively unusual or difficult to assess.

Orders Made

  • Leave granted pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) to make the judge alone application within 28 days of the date fixed for trial
  • Application for trial by judge alone refused

Key Takeaways

  • The mere fact that a first jury was unable to reach a verdict does not, of itself, establish that a judge alone trial is in the interests of justice under s 132(4) of the Criminal Procedure Act 1986 (NSW).
  • Where witness credibility is a central issue, this consideration weighs in favour of retaining trial by jury. A jury's collective assessment of credibility is regarded as more reliable than that of a single judicial mind, including in cases involving witnesses who present with cognitive difficulties.
  • Finality, in the sense of avoiding the cost and inconvenience of a further trial, is not a sufficient reason to order a judge alone trial.
  • Expert evidence concerning a complainant's intellectual disability and memory functioning does not automatically render a trial too complex for a jury. The court found that directions addressing such evidence would not be unusually burdensome.
  • Under s 132A, a court retains discretion to grant leave for a late judge alone application while still refusing the substantive application for trial by judge alone on the merits.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 66DB
- Criminal Procedure Act 1986 (NSW) ss 132, 132A
- Evidence Act 1995 (NSW) ss 135, 165A

Cases:
- Alameddine v R [2022] NSWCCA 219
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- R v Dawson [2022] NSWSC 552
- R v McNeil [2015] NSWSC 357; (2015) 250 A Crim R 12
- R v Mackie (No 2) [2018] NSWSC 1654
- R v Mapp [2024] NSWSC 1267
- R v Niguidula [2023] NSWSC 290
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) A Crim R 120
- R v White [2022] NSWSC 1060