R v AN; R v LM - [2021] NSWSC 1657

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AN; R v LM [2021] NSWSC 1657
Hearing dates: 31 August, 26 October and 11 November 2021
Date of orders: 16 December 2021
Decision date: 16 December 2021
Jurisdiction: Common Law
Before: Walton J
Decision:
Pursuant to s 132(4) of the Criminal Procedure Act (NSW) the Court orders that the trial of AN and LM on the amended indictment be heard by judge alone.

Catchwords:
CRIMINAL LAW – aggravated kidnapping charge – foundational offence – murder charge – application for judge alone trial order – community standards – interests of justice – causation – limited factual issues – complexity of medical evidence – relative delays – juvenile offenders – judge alone trial granted

Legislation Cited:
COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
R v Belghar [2012] NSWCCA 86
R v Camilleri [2020] NSWSC 951
R v Coleman [2020] ACTSC 97
R v Hadler [2018] NSWSC 1151
R v Jaghbir(No 2) [2020] NSWSC 955
R v Johnson [2020] NSWDC 153
R v Kerollos [2020] NSWSC 1758
R v Sean Lee King [2013] NSWSC 448
R v McKnight [2014] NSWSC 398
R v Stanley [2013] NSWCCA 124
R v Warren Scott [2021] NSWSC 1004
Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
Swan v The Queen (2020) 269 CLR 663; [2020] HCA 11

Category: Procedural rulings
Parties: Regina (Crown)
Alexander Geoffrey Nimmo
Luke John Miles
Representation:
Counsel:
K Ratcliffe (Plaintiff)
C Steirn SC (AN)
C Davenport SC (LM)
Solicitors:
Office of Director of Public Prosecutions (Plaintiff)
Boom Lawyers (AN)
Kennedy & Cooke Lawyers (LM)

File Number(s): 2020/47670; 2020/47688

Judgment

On 8 November 2021, the two accused, AN and LM (collectively “the accused”), were arraigned with respect to two charges contained in an amended indictment. The charges were identical for the two accused.
Count 1 of the indictment charged the accused in the following terms:

on 2 February 2020, at Broulee in the State of New South Wales, detained Peter Keeley (“the deceased”) without his consent and with the intention of committing a serious indictable offence, namely, assault occasioning actual bodily harm, in circumstances of special aggravation, namely, [AN], [LM] and William Delahey were in the company of each other and, at the time of the detention, actual bodily harm was occasioned to the deceased.

This charge was brought under s 86(3) Crimes Act 1900 (NSW), and shall hereafter be referred to as the “kidnapping charge”.
The Director of Public Prosecutions further charged the accused under s 18(1)(a) of the Crimes Act. Count 2 was in the following terms:

on 2 February 2020, at Broulee in the State of New South Wales, did murder Peter KEELEY.

The accused pleaded guilty to the foundational offence under count 1 but not guilty to the charge of murder.
The accused made an application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 1657
Decision Date: 16 December 2021

CaseChat Overview and Summary

The case of R v AN; R v LM involved two juvenile offenders, AN and LM, who were charged with aggravated kidnapping, which was alleged to have resulted in the death of their victim, as well as murder charges. The trial judge granted an application for the matter to be heard by a judge alone rather than a jury. The applicants appealed against this decision, arguing that the judge alone trial was inappropriate given the nature of the charges and the importance of the jury in determining such serious allegations. The applicants also argued that the trial judge erred in assessing the interests of justice and the community standards relevant to the case.

The primary legal issue the court needed to decide was whether the trial judge correctly exercised their discretion in ordering a judge alone trial, considering the nature of the charges, the importance of the jury in determining serious allegations, and the interests of justice and community standards. The court also needed to consider whether the judge had correctly assessed the complexity of the evidence, the relative delays in the case, and the age and circumstances of the applicants.

The court found that the judge correctly exercised their discretion in ordering a judge alone trial. The judge had carefully considered the foundational offence, the complexity of the medical evidence, and the relative delays in the case. The court held that the trial judge had appropriately assessed the interests of justice and community standards, taking into account the serious nature of the charges and the age and circumstances of the applicants. The court also found that the limited factual issues and the complexity of the medical evidence were sufficient reasons to order a judge alone trial. The court concluded that the trial judge had not erred in ordering the trial to be heard by a judge alone.

The applicants' appeals were dismissed, and the judge alone trial order was upheld. The court's decision highlights the importance of considering the nature of the charges, the complexity of the evidence, and the interests of justice and community standards when determining whether a judge alone trial is appropriate. The court also emphasised the importance of considering the age and circumstances of the applicants when making this decision.

Orders