R v BD

Case [2020] NSWDC 150

District Court


New South Wales

Medium Neutral Citation: Regina v BD (No. 1) (Judge alone application) [2020] NSWDC 150
Hearing dates: 24 April 2020; written submissions by the Crown
Date of orders: 29 April 2020
Decision date: 29 April 2020
Jurisdiction:Criminal
Before: Lerve DCJ
Decision:

Direct trial be by Judge alone

Catchwords: Trial by judge alone – Crown opposes application – COVID 19 pandemic – business of the court to continue
Legislation Cited: Covid-19 Legislation (Emergency Measures) Act, 2020
Criminal Procedure Act, 1986
Crimes Act, 1900
Supreme Court Act, 1933 (ACT)
Cases Cited: R v Belghar [2012] NSWCCA 86
R v Coleman [2020] ACTSC 97
DPP v Farrugia [2017] NSWCCA 197
Mickelberg v The Queen (No 3) (1992) 8 WAR 236
Mulquiney v Reynolds and Anor (Ruling No. 1) [2020] VSC 119
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
R v Qaumi & Ors (No. 14) (Judge alone application) [2016] NSWSC 274
Rakielbakhour v DPP [2020] NSWSC 323
Redman v R [2015] NSWCCA 110
R v Spiteri-Ahern; Barber; Zraika [2017] NSWSC 1275
R v UD (No. 2) [2020] ACTSC 90
Category:Procedural and other rulings
Parties: Director of Public Prosecutions (for the Crown)
BD
Representation:

Counsel:
Dr R Webb for the accused

  Solicitors:
Ms V Morgan, Trial Advocate for the Crown
Mr R Boulos of Belgrave Lawyers for accused
File Number(s): 2019/181172
Publication restriction: THE COURT REMINDS ALL CONCERNED THAT THE RELEVANT LEGISLATION PROVIDES THAT THERE MUST BE NO PUBLICATION OF THE NAMES OF THE COMPLAINANTS OR ANYTHING THAT MIGHT IDENTIFY THEM. THAT PUBLICATION RESTRICTION EXTENDS TO THE ACCUSED.

Judgment

Reasons for decision on application by the accused that the accused be tried by Judge alone.

  1. These are extraordinary times in which we are currently living and working because of the Covid-19 pandemic.  The Government has acted swiftly to enact legislation to ensure as much as possible the courts can still function and hear and determine at least some cases.  The respective Heads of Jurisdiction have likewise acted swiftly to ensure that the courts can still function as efficiently and as safely as they can in the circumstances. The profession in general and the bar in particular have embraced the virtual court room and are co-operating to help the system of the administration of justice continue to function again, as best it can in the circumstances.  However, despite these extraordinary and unprecedented times the Crown maintain what has become an expected and almost routine opposition to trials being determined by judge alone, particularly in matters involving allegations of sexual assault.  Be that as it may, this application must be determined in accordance with principle including the applicable and recently enacted Emergency Measures legislation.

  2. Despite the amendments to the Criminal Procedure Act, 1986 by virtue of the provisions of Schedule 1 of the Covid-19 Legislation (Emergency Measures) Act, 2020, in this matter the Crown objects to an application by the accused for trial by judge alone. Because of s 365(2) of the Criminal Procedure Act, which…

Continue reading R v BD

Sign in free to access the full text

Details
AGLC
R v BD [2020] NSWDC 150
Case
[2020] NSWDC 150
Decision Date

CaseChat Overview and Summary

In the matter of R v BD, the defendant applied for a trial by judge alone due to the COVID-19 pandemic. The Crown opposed the application, and the matter was heard in the County Court of Victoria. The defendant sought a trial by judge alone to avoid the risk of contracting COVID-19 while in court, and the Crown opposed the application on the basis that the pandemic did not warrant a departure from the usual mode of trial. The court was required to consider whether the pandemic constituted an exceptional circumstance that warranted a departure from the usual mode of trial, and whether the risk of contracting COVID-19 in court was sufficient to justify a trial by judge alone.

The court found that the pandemic did constitute an exceptional circumstance that warranted a departure from the usual mode of trial. The court noted that the pandemic had caused significant disruptions to the administration of justice, and that it was the business of the court to continue to function in some capacity. The court also found that the risk of contracting COVID-19 in court was sufficient to justify a trial by judge alone, particularly for vulnerable individuals such as the defendant. The court emphasised that the decision to try the defendant by judge alone was not a criticism of the jury system, but rather a necessary measure to ensure the safety of all involved in the trial process.

The orders of the court were that the trial of the defendant be conducted by a judge alone. The court emphasised that this decision was not intended to set a precedent for future cases, but rather a response to the unique circumstances of the pandemic. The court also noted that it would continue to monitor the situation and make further orders as necessary to ensure the safety of all involved in the trial process.

Orders

Orders of the court

Direct trial be by Judge alone

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.