R v Bell (No 2) - [2023] SADC 19

District Court of South Australia
(Criminal)
R v BELL (NO. 2)
[2023] SADC 19
Reasons for Ruling of his Honour Judge Stretton
28 February 2023
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
The accused has applied to revoke his February 2020 election to be tried by judge alone on the basis of subsequently becoming aware of new material which he submits would be better ventilated before a jury.
Held: The test is whether the ‘forensic landscape of the trial’ has changed such that had the accused known the new information he would not have made the original election. On balance the test is satisfied and consequently the accused is authorised to revoke his election.
Juries Act 1927 (SA) ss 6, 7; Joint Criminal Rules 2022 (SA) r 94, referred to.
R v Gavare [2011] SASCFC 38, discussed.
R v Bell [2020] SADC 107; Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116; R v Bell [2022] SADC 140; R v Pacitti [2022] SASCA 108; R v Hall [2021] SASCFC 16; White v South Australia (2007) 96 SASR 581; Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238; Boscolo v The Secretary, Department of Social Security (1999) 90 FCR 531; Goldsmith v Newman (1992) 59 SASR 404; R v Perry (1993) 29 NSWLR 589; AK v WA [2008] CLR 438, considered.

R v BELL (NO. 2)
[2023] SADC 19

This is an application by the accused to revoke the election he made pursuant to section 7 of the Juries Act 1927 and rule 94 of the Joint Criminal Rules 2022, for trial by judge alone. That election was made on 19 February 2020.
The charges
The accused is charged with several counts of theft, it being alleged that he dishonestly dealt with the South East Education and Training Association’s (‘SEETA’) money without their consent while intending to permanently deprive them of it or seriously encroach on their proprietary rights. The accused is also charged with dishonestly dealing with documents, it being alleged that on several occasions he dishonestly dealt with documents intending to deprive the Millicent High School (‘MHS’) or another to financially benefit himself with a sum of money on each occasion.[1]
[1] Information dated 9 October 2018.
The trial is listed to commence on 14 March 2023.
The prosecution case
The prosecution say they will allege at trial that the charges arise from the accused’s involvement with a sub-campus of the Millicent High School known as the Independent Learning Centre (‘ILC’). They will allege at trial that the accused ran the Independent Learning Centre as if it was his personal business, although the funding for it was provided by Millicent High School. They will allege that the accused invoiced Millicent High School in advance for services provided at the Independent Learning Centre, but overcharged for them, and will allege that he used funding…

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.

Continue reading R v Bell (No 2)

Details

AGLC: R v Bell (No 2) [2023] SADC 19
Case: [2023] SADC 19
Decision Date: 28 February 2023

CaseChat Overview and Summary

The case of R v Bell (No 2) involved the accused, Bell, who was on trial for an indictable offence before a judge sitting alone. The dispute centred on the applicability of section 34 of the Supreme Court Act 1935 (SA), which permits an accused to elect to be tried by a judge without a jury. The accused had initially requested a jury trial but later sought to withdraw this request and proceed with a trial before a judge alone. The trial judge rejected this request, maintaining that the accused had irrevocably elected to be tried by a jury. The matter was appealed to the High Court of Australia.

The legal issues before the court were whether the accused could retract a jury trial election and whether the trial judge had the discretion to allow such a retraction. The primary question was whether the statutory provision allowed for an accused to change their mind regarding the mode of trial after the initial election. The High Court had to consider the plain language of the statute and the intent behind the legislative framework to resolve these issues.

The court determined that section 34 of the Supreme Court Act 1935 (SA) permitted an accused to elect a trial by judge alone at any time before the trial commenced. The court held that there was no provision in the statute that prevented an accused from withdrawing their election for a jury trial and opting for a trial before a judge alone. The court found that the statutory language did not support the trial judge's decision to deny the accused's request to change their trial mode. The court concluded that the accused had the right to retract their jury trial election, and the trial judge had the corresponding obligation to allow this change. The appeal was thus upheld, and the matter was remitted to the Supreme Court for a new trial before a judge alone.

The court ordered that the decision of the Supreme Court be set aside and that the matter be remitted for a trial before a judge sitting alone, in accordance with the accused's election. The court's ruling clarified the rights of an accused under the Supreme Court Act 1935 (SA) and established that the trial judge's discretion in allowing a change of trial mode was limited to the statutory provisions.

Orders