[2022] TASSC 70
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | MJL v Tasmania [2022] TASSC 70 |
| PARTIES: | MJL |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 834/2020 |
| DELIVERED ON: | 7 September 2022 |
| PUBLISHED ON: | 2 May 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 2 September 2022 |
| JUDGMENT OF: | Estcourt J |
| CATCHWORDS: |
Criminal Law - Procedure - Trial had before judge without jury – Election – Trial on indictment – Application for trial without jury – Meaning of "interests of justice" – Persistent sexual abuse of a child – Tendency evidence – Defence of immature age – Process of evaluation required to determine where the interests of justice lie – Application refused.
Criminal Code Act 1924, ss 18, 361AA and 383 and Criminal Procedure Act 2004 (WA), s 118.
Fleming v The Queen (1998) 197 CLR 250; R v Stanley [2013] NSWCCA 124; Gilbert v The Queen [2000]
HCA 15, 201 CLR 414; Arthurs v Western Australia [2007] WASC 182; R v Belghar [2012] NSWCCA 86,
217 A Crim R 1; R v Gittany [2013] NSWSC 1503; R v Abrahams [2013] NSWSC 729; R v Simmons (No 4)
[2015] NSWSC 259, 249 A Crim R 120; R v McNeil [2015] NSWSC 357, 250 A Crim R 12; Doney v The
Queen [1990] HCA 51, 171 CLR 207 and State of Western Australia v Edwards [2018] WASC 419,
considered.
Aust Dig Criminal Law [3165]
REPRESENTATION:
Counsel:
Appellant: K Baumeler Respondent: L Ogden
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2022] TASSC 70 |
| Number of paragraphs: | 101 |
Serial No 70/2022 File No 834/2020
MJL v STATE OF TASMANIA
| REASONS FOR JUDGMENT | ESTCOURT J 7 September 2022 |
| The application |
1 On 6 July 2022 the accused MJL, who is charged on indictment 206/2021 with one count of persistent sexual abuse of a child or young person contrary to s 125A(2) of the Criminal Code, has filed an application pursuant to s 361AA of the Code seeking an order that the trial of the indictment be conducted by a judge sitting alone.
2 The State opposes the application.
3 Section 361AA of the Code provides, relevantly, as follows:
"361AA Trial by judge alone
(1)
Despite section 361, a party to proceedings in respect of a crime may apply to the court for an order to have the trial in respect of the crime be determined by a single judge in place of a trial by jury.
(2) An application for an order under subsection (1) in respect of a crime –
(a)
may only be made within the 3 month period immediately after the accused person, in respect of the crime, has been committed to trial for the crime.
(3) Despite subsection (2)(a), the court may consider an application made outside of the period specified in that paragraph if the court is satisfied that the applicant has provided a reasonable explanation for the delay…
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CaseChat Overview and Summary
The court examined the criteria for determining the interests of justice, which included the gravity of the offence, the nature of the evidence, and the potential impact on the defendant and the victim. The court held that the persistent sexual abuse of a child constituted a grave offence, and the use of tendency evidence could significantly affect the proceedings. The court concluded that the defendant's age at the time of the offences, while relevant, did not outweigh the need to consider the broader interests of justice, which favoured a jury trial to ensure a fair process and protect the rights of the victim.
In light of the analysis, the court denied the application for a trial without a jury. The court reasoned that a jury trial would best serve the interests of justice by providing an impartial forum for evaluating the evidence and ensuring a fair process for all parties involved. The court's decision emphasised the importance of considering the specific circumstances of each case when determining whether a trial should proceed with or without a jury.
The final orders of the court were that the trial of MJL would proceed before a judge and jury, and the application for a trial without a jury was dismissed. The court's decision underscored the significance of the "interests of justice" in criminal trials involving serious offences and the use of tendency evidence.
Orders
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