Citation: R v Sultana [2025] NSWSC 731
Court: Supreme Court of NSW
Date: 1 July 2025
Judge: Rigg J
Background
An accused man was charged with the murder of a woman in her unit on 16 January 2023. The Crown alleged the deceased and the accused had an intimate relationship in the months before her death, and that the accused killed her after she indicated she did not want a serious relationship with him. The trial was listed to commence on 14 July 2025 before Garling J, with an estimated duration of 30 days.
The Crown did not consent to a judge alone trial. The accused filed an election under s 132(1) of the Criminal Procedure Act 1986 (NSW) and a Notice of Motion seeking an order for trial by judge alone, relying primarily on pre-trial publicity as the basis for the application.
Because the Crown withheld its consent, the matter fell under s 132(4) of the Act, which requires the court to determine whether it is in the interests of justice to make such an order.
Legal Issues
- Whether, under s 132(4) of the Criminal Procedure Act 1986 (NSW), it was in the interests of justice to order trial by judge alone where the Crown did not consent
- Whether the pre-trial publicity in this case was of a nature and extent that could not be adequately addressed by jury directions and the empanelment process
Decision
Issue 1: The statutory framework and applicable principles
Where the Crown does not agree to a judge alone trial, the court has a discretion under s 132(4) of the Act to order one if it is in the interests of justice. Rigg J applied the principles set out in R v Belghar, noting that there is no presumption in favour of a jury trial that an accused must displace. Instead, the court weighs the characteristics of each mode of trial against the circumstances of the particular case.
The accused's subjective belief that a jury trial might be unfair is a relevant but far from determinative factor. What matters more is whether that belief is rationally justified and whether it bears on the question of a fair trial.
Issue 2: Pre-trial publicity and available remedies
The court observed that extensive pre-trial publicity is not unusual in notorious cases, and that the common law presumes jurors will follow judicial directions to bring an impartial mind to their verdict. Rigg J noted that courts have consistently held, as Hamill J confirmed in R v Simmons; R v Moore (No 4), that prejudice arising from pre-trial publicity is overwhelmingly capable of being addressed by directions to the jury.
The court identified several available mechanisms to manage any prejudice: raising the nature of the allegations with the jury panel before empanelment, excusing potential jurors for cause, and giving directions throughout the trial that jurors must confine themselves to the evidence. The nature of the particular publicity relied upon in this case did not raise real concerns about the fairness of a jury trial.
Issue 3: Conclusion
Rigg J was not satisfied that standard directions and the empanelment process would be insufficient to maintain confidence in the conduct and outcome of a jury trial. The court declined to find that it was in the interests of justice to order trial by judge alone, and the application was refused.
Orders Made
The application for an order for trial by judge alone was refused.
Key Takeaways
- Pre-trial publicity alone will rarely justify an order for trial by judge alone under s 132(4) of the Criminal Procedure Act 1986 (NSW); the overwhelmingly consistent position is that such prejudice can be addressed by jury directions.
- An accused person's subjective belief that a jury trial will be unfair is a relevant consideration, but the court places more weight on whether that belief is rationally justified and whether it genuinely bears on the fairness of the trial.
- Under s 132 of the Act, the absence of the Crown's consent does not prevent a judge alone order, but the court must affirmatively conclude that such an order is in the interests of justice.
- Available tools at empanelment, including raising the subject matter of the trial with the panel, excusing jurors for cause under the Jury Act 1977 (NSW), and repeated directions during trial, are regarded as substantial safeguards against juror prejudice from publicity.
- Refusing the application, the Supreme Court reinforced that jury trial remains the ordinary mode of trial on indictment, and material supporting a departure from that mode must genuinely engage the interests of justice in the particular case.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 132
- Jury Act 1977 (NSW), ss 14A, 38 and 46
- Crimes Act 1900 (NSW), Division 3 of Part 7
Cases
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- R v Obeid (No 4) [2015] NSWSC 1442
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120
- The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16