AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 23 March 2026

R v Monteleone

[2026] NSWDC 83

Assault & violenceDomestic & family violence
CRIMINAL LAW APPLICATION FOR A TRIAL BY JUDGE ORDER

Citation: [2026] NSWDC 83
Court: District Court of New South Wales
Date: 23 March 2026
Judge(s): Abadee DCJ

Background

The applicant was charged with wounding his former partner with intent to murder her (contrary to s 27 of the Crimes Act 1900 (NSW)), arising from a stabbing incident in a carpark in Alexandria on 8 May 2024. The complainant suffered knife wounds to the neck and chest.

The applicant pleaded not guilty to the primary charge but pleaded guilty to an alternative charge of wounding with intent to cause grievous bodily harm (contrary to s 33(1)(a) of the Crimes Act). Accordingly, the sole issue for trial was whether the Crown could prove that the applicant possessed the specific intent to kill the complainant at the time of the stabbing.

The applicant applied for a trial by judge alone order under s 132(1) of the Criminal Procedure Act 1986 (NSW). The application was brought less than 28 days before the listed trial date, requiring the Court's leave under s 132A. The Crown did not oppose the grant of leave to bring the application late but opposed the substantive application itself.

  • Whether it was in the interests of justice to order trial by judge alone under s 132(4) of the Criminal Procedure Act 1986 (NSW), in circumstances where the Crown opposed the application.

  • Whether the risk of prejudice arising from proposed context evidence — including the applicant's breaches of an apprehended violence order and a prior conviction — could be adequately ameliorated by jury directions.

  • Whether the central factual issue at trial (intent to kill) required the application of objective community standards, making a jury the more appropriate tribunal.

  • Whether the need to draw inferences about intent and to assess witness credibility and reliability favoured jury trial over judge-alone trial.

  • Whether efficiencies associated with a judge-alone trial (estimated at 3 days versus 5–7 days with a jury) weighed in favour of the application.

Decision

Leave to bring the late application was granted. Abadee DCJ noted that the identity of the trial judge had only recently become apparent, and the Crown had been on notice of the application since mid-February 2026. There was no issue regarding the s 132(6) precondition: the applicant had received legal advice about the effect of a trial by judge order.

On the substantive application, Abadee DCJ conducted a detailed analysis of the principles governing s 132(4) applications, drawing significantly on the framework articulated by Yehia J in R v White [2024] NSWSC 1369 and R v Batak (No 6) [2025] NSWSC 658, as well as the observations of Beech-Jones J in R v Dawson [2022] NSWSC 552. His Honour recognised that there is no presumption in favour of jury trial that an applicant must overcome, but equally that an accused's election is not determinative — rather, the Court must assess where the interests of justice lie by reference to the specific facts and circumstances of the case.

The applicant's principal argument rested on the potentially prejudicial nature of the Crown's proposed context evidence. This evidence concerned the applicant's conduct in the weeks leading up to the stabbing, including his interactions with the complainant, a report to police, the making and service of an AVO, his breaches of that AVO, and his subsequent prosecution and sentencing to a term of imprisonment served by way of intensive correction order. The applicant also pointed to post-offence conduct evidence — driving from the scene, disposing of phones, and setting his car alight — which, even if limited to proving the physical act of wounding, carried a risk of misuse by a jury. The applicant argued that these risks of prejudice were unlikely to be adequately managed by jury directions.

Abadee DCJ ultimately refused the application. While his Honour acknowledged the applicant's concerns about prejudicial evidence and the efficiencies of a judge-alone trial, the Court concluded that the central issue at trial — whether the applicant intended to kill the complainant — was one that engaged the drawing of inferences from circumstantial evidence and assessments of credibility and reliability that made a jury the more appropriate forum. His Honour also considered the relevance of objective community standards to the inferential reasoning required to determine the applicant's state of mind. The Court was not persuaded that the risk of prejudice from the proposed evidence was so great that it could not be addressed by appropriate jury directions, or that the interests of justice otherwise favoured departing from the conventional mode of trial by jury.

Orders Made

  • Leave was granted to the applicant to bring the application for a trial by judge order out of time.
  • The application for a trial by judge alone order was refused.
  • The matter was to proceed to trial by jury.

Key Takeaways

  • The District Court found that the prospect of potentially prejudicial tendency or context evidence, while a relevant consideration, was not determinative; the risk of misuse could be adequately managed through jury directions, and this factor alone did not warrant a judge-alone trial.

  • Where the central issue was one of intent (particularly intent to kill, which must be inferred from surrounding circumstances), a jury was held to be the more appropriate tribunal for drawing those inferences, especially where credibility and reliability assessments were central to the case.

  • Significant time savings, potentially halving the trial length, were acknowledged as a legitimate factor in the analysis, but efficiency considerations alone would not tip the balance in favour of a judge-alone order where other factors weighed against it.

  • An accused's considered election to forego a jury trial, made on legal advice, was recognised as a weighty factor; however, the District Court held that the reasons underpinning that preference must be rationally justified and must bear upon the question of a fair trial to be persuasive.

  • Late applications under s 132A of the Criminal Procedure Act 1986 (NSW) could be accommodated where the Crown had been on notice and the delay was explicable, such as the late identification of the trial judge, even where the Crown opposed the substantive application.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 33(1)(a)
- Criminal Procedure Act 1986 (NSW), ss 131, 132, 132A
- Evidence Act 1995 (NSW), s 137

Cases:
- DPP (NSW) v Farrugia [2017] NSWCCA 197
- R v Abrahams [2013] NSWSC 729
- R v Adams (No 2) [2016] NSWSC 1359
- R v Batak (No 6) [2025] NSWSC 658
- R v Belghar [2012] NSWCCA 86
- R v BT [2017] NSWSC 1095
- R v Dawson [2022] NSWSC 552
- R v Gittany [2013] NSWSC 1503
- R v Mackie (No 2) [2018] NSWSC 1654
- R v McNeil [2015] NSWSC 357
- R v Stanley [2013] NSWCCA 124
- R v White [2024] NSWSC 1369