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Supreme Court 5 August 2026

R v Manly

[2026] NSWSC 980

HomicideFirearms & weapons
CRIMINAL LAW APPLICATION FOR TRIAL BY JUDGE ALONE WHERE FIRST TRIAL ENDED IN HUNG JURY JURY UNABLE TO AGREE WHERE FOUR DESIRABILITY FOR FINALITY

Citation: R v Manly [2026] NSWSC 980
Court: Supreme Court of New South Wales
Date: 5 August 2026
Judge(s): Hamill J

Background

The accused faces three charges arising from a shooting in March 2022: murder of one man, attempted murder of a witness, and an alternative charge of discharging a firearm with intent to cause grievous bodily harm. The prosecution alleges the accused shot the deceased five times at close range at what was supposed to be a fist fight, and that an associate shot a fleeing witness. The prosecution also relies on joint criminal enterprise as an alternative basis of liability.

A jury trial commenced on 6 July 2026 before McNaughton J and concluded within the five-week estimate, but the jury was discharged on 30 July 2026 having been unable to reach either a unanimous or 11:1 majority verdict. Following the discharge, the accused sought to have the retrial listed almost immediately and indicated an intention to apply for a judge alone trial under s 132 of the Criminal Procedure Act 1986 (NSW). The prosecution opposed both the expedited listing and the judge alone application.

The matter came before Hamill J on an urgent basis on 5 August 2026. The Court had tentatively listed the retrial to commence on 10 August 2026, making a prompt determination of the application necessary.

  • Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 (NSW), given the application was filed fewer than 28 days before the trial date
  • Whether, in the absence of prosecutorial consent under s 132(2), the interests of justice required an order for trial by judge alone under s 132(4)
  • Whether the trial involved factual issues requiring the application of community standards, which under s 132(5) would be a consideration against a judge alone order
  • What weight to give the accused's informed election, the four-year delay since the alleged offence, the hung jury outcome, and associated publicity

Decision

Leave under s 132A: Because the application was made fewer than 28 days before the trial date, leave was required. The lateness arose directly from the jury's discharge, not from any strategic manoeuvring. Hamill J noted there was no suggestion of judge shopping: McNaughton J had case-managed the matter for around nine months, made no comments suggesting predisposition toward the accused, and the accused had a genuine reason for applying at that point, namely the concern about a further hung jury. The prosecution ultimately did not resist leave, and Hamill J granted it.

Community standards and statutory criteria: Hamill J was satisfied the statutory preconditions were met. The accused had received legal advice and consented to a judge alone trial as required by ss 132(4) and 132(6). The case raised no factual issues requiring the application of objective community standards (such as reasonableness, negligence, indecency, obscenity or dangerousness) within the meaning of s 132(5), meaning no statutory bar to the order arose.

Interests of justice: Hamill J applied the established principle from R v Belghar that there is no presumption favouring either mode of trial, and that the accused's informed election is a relevant but not determinative factor. The court identified several considerations favouring a judge alone order. Four years had elapsed since the alleged offending, a period described as regrettable but not exceptional in retrial cases. The hung jury, without reasons, left the litigation unresolved, and the desirability of finality weighed in favour of a mode of trial that would produce a reasoned verdict. Some prejudicial publicity existed. No countervailing factor positively favoured a jury trial. Hamill J described the outcome as not resting on a single overwhelming consideration but rather a combination of factors, with particular weight given to delay and the value of finality, drawing on the analysis of Yehia J in R v Batak (No 6) [2025] NSWSC 658.

Overall conclusion: Hamill J characterised the case as finely balanced but concluded the interests of justice favoured a judge alone trial. The court noted the practical advantage that an immediate listing was available, that there was no judge shopping, and that the accused had made an informed and genuinely held election.

Orders Made

  • Leave granted under s 132A of the Criminal Procedure Act 1986 (NSW)
  • The accused is to be tried by a judge sitting without a jury pursuant to s 132 of the Criminal Procedure Act 1986 (NSW)
  • The matter adjourned for further directions before McNaughton J at 2:00pm on 5 August 2026, noting the prospective trial date of 10 August 2026

Key Takeaways

  • Under s 132 of the Criminal Procedure Act 1986 (NSW), where the prosecution opposes a judge alone application, the court must assess whether the order is in the interests of justice through a broad evaluative exercise, with no presumption favouring either mode of trial.
  • A hung jury followed by an application filed shortly after discharge is not, without more, an indicator of judge shopping for the purposes of the leave requirement in s 132A, particularly where the trial judge had managed the proceedings for months and conducted a fair trial.
  • Delay between an alleged offence and retrial is a relevant consideration in the s 132 interests of justice assessment. Hamill J confirmed the approach in R v Batak (No 6) that efficiency and finality serve both the parties and the wider community.
  • The court found that no single feature needed to overwhelmingly favour a judge alone trial. A combination of factors, including delay, the desirability of a reasoned verdict, an informed election, and the absence of any countervailing consideration favouring a jury, can together satisfy the interests of justice test.
  • Where s 132(5) community standards issues (such as negligence, indecency or dangerousness) are absent, that statutory consideration does not operate as a barrier to a judge alone order.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132(2), s 132(4), 132(5), 132(6), 132A, 132A(1)

Cases
- Arthurs v State of Western Australia [2007] WASC 182
- R v Adams (No 2) [2016] NSWSC 1359
- R v Batak (No 6) [2025] NSWSC 658
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- R v Dawson [2022] NSWSC 552
- R v Qaumi & Ors (No 14) (Judge alone application) [2016] NSWSC 274 ; (2016) 265 A Crim R 575
- R v Qaumi & Qaumi [2016] NSWSC 1473
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120