R v Barolia (No. 1)

[2021] NSWDC 695

District Court

New South Wales

Medium Neutral Citation:

R v Barolia (No. 1) [2021] NSWDC 695

Hearing dates:

13-14 December 2021

Date of orders:

13 September 2021

Decision date:

13 September 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Leave granted.

Catchwords:

CRIME – PRACTICE AND PROCEDURE

Application for trial by judge alone – Not filed 28 days prior to trial date – Application for leave under Criminal Procedure Act 1986 s 132A – Parties have agreed on relevant facts – Actus reus not in dispute – Mens rea contested – Medical evidence to be tendered – Appropriate matter for trial by judge alone

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Mental Health (Forensic Provisions) Act 1999

Category:

Procedural rulings

Parties:

Regina – Crown
Defendant – Muntaj Bagam Barolia

Representation:

Crown – D. Waldmann (ODPP)
Defendant – T. Kent instructed by National Criminal Lawyers

File Number(s):

2019/00382466

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: The parties have filed an election under s 132 subs (1) of the Criminal Procedure Act 1986 for trial by judge alone. The trial is listed for hearing to commence today. Pursuant to s 132A of the Criminal Procedure Act 1986 the parties need the Court’s leave to make a trial by judge alone order because the application was not made 28 days prior to the date fixed for hearing.

2. The accused is charged with an offence contrary to s 35(4) of the Crimes Act 1900 of recklessly wounding Mohsin Barolia, whom I understand is the son of the accused. According to a statement of key issues the issues at trial are whether the Court may enter a special verdict of act proved but not criminally responsible for the offending detailed in the agreed facts. And whether the applicable legislation is a Mental Health (Forensic Provisions) Act 1999 or the more recent Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The second question is purely a matter of law.

3. The facts appear to be agreed. There is no issue about the actus reus in question. The issue is whether the accused had the appropriate mens rea. There is psychiatric medical evidence to be considered, as well as evidence from a toxicologist. This is particularly apt for determination by a judge sitting alone who is required to give reasons rather than for consideration by a jury.

4. In the circumstances I grant leave to the parties to rely upon the election filed under s 132(1) of the Criminal Procedure Act 1986 and make an order for trial by judge alone.

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Decision last updated: 17 December 2021