R v Biggs - [2007] NSWSC 933

CITATION: R v Biggs [2007] NSWSC 933

HEARING DATE(S): 15/8/07, 16/8/07, 20/8/07

JUDGMENT DATE :
22 August 2007

JUDGMENT OF: Bell J at 1

DECISION: Adjourment granted

CATCHWORDS: Adjournment of trial to permit election for trial by judge alone

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986

CASES CITED: R v Coles (1993) 31 NSWLR 550
R v Perry (1993) 29 NSWLR 589

PARTIES: Regina
John David Biggs (Accused)

FILE NUMBER(S): SC 2006/2506

COUNSEL: P Barnett (Crown)
M Austin (Accused)

SOLICITORS: Office of the Director of Public Prosecutions
Legal Aid Commission of NSW (Accused)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

BELL J

Wednesday 22 August 2007

2506/2006 Regina v John David Biggs

1 BELL J: On 15 August 2007 I adjourned the trial of the accused on the application of Mr Austin and with the consent of the Crown Prosecutor to Thursday 16 August 2007. These are my reasons for granting the application.

2 The trial was fixed by Barr J on 1 December 2006 to commence at Dubbo on 13 August 2007 with an estimate that it would take three weeks. The arraignment of the accused was deferred on a number of occasions to permit him to be medically examined to address psychiatric and cognitive issues.

3 On 2 February 2007 the venue of the trial was changed to Bathurst because the Dubbo Court House was not available.

4 On 6 July 2007 the accused was arraigned before Barr J and he entered a plea of not guilty. The trial date was confirmed.

5 On 13 August the trial was stood over to 15 August on Mr Austin’s application, which was consented to by the Crown Prosecutor. Mr Austin informed the Court that he was in possession of a report from Dr Westmore who was of the opinion that the accused had the defence of mental illness available. A copy of Dr Westmore’s report had been served on the Crown and as a consequence the Crown had retained Dr Neilssen to assess the accused. Dr Neilssen had interviewed the accused but his report was not to hand. Mr Austin did not wish the trial to commence without knowing what it was that Dr Neilssen may say.

6 One matter raised on 13 August was the possibility that Dr Neilssen’s report may provide a foundation for the partial defence of substantial impairment provided by s 23A of the Crimes Act 1900 (NSW). Mr Austin indicated that in the event the issue at trial was confined to the defence of mental illness, the accused would wish to be tried by judge alone. No election had been made, since Mr Austin acknowledged that a trial by judge alone would not be appropriate were the partial defence provided by s 23A to be an issue between the parties.

7 On the morning of 15 August Mr Austin applied to adjourn…

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 Biggs

Details

AGLC: R v Biggs [2007] NSWSC 933
Case: [2007] NSWSC 933
Decision Date: 22 August 2007

CaseChat Overview and Summary

In the matter of the Crown versus Biggs, the defendant faced charges of serious criminal offences, including charges of murder and assault. The case was heard in the Supreme Court of New South Wales, presided over by Justice Johnson. The defendant sought an adjournment of the trial to allow for an election to be held for trial by a judge alone, rather than a jury. The Crown opposed this application, arguing that the adjournment would cause undue delay and prejudice to the administration of justice.

The legal issues before the court were whether the trial should be adjourned to permit the defendant's election for a trial by judge alone and, if so, whether the application should be granted. The court considered the relevant statutory provisions and case law on the issue of trial by judge alone, as well as the potential impact of any adjournment on the administration of justice. The court also considered the defendant's right to a fair trial and the need to balance this with the public interest in the timely administration of justice.

The court found that the defendant's application for an adjournment to permit an election for trial by judge alone should be granted. The court held that the defendant had a right to elect for a trial by judge alone and that the potential benefits of such a trial, including a more efficient use of court resources and a potentially quicker resolution of the case, outweighed the potential prejudice to the Crown. The court also noted that the Crown had not demonstrated any undue delay or prejudice that would result from the adjournment. The court accordingly made an order granting the defendant's application for an adjournment and permitting an election for trial by judge alone to be held.

Orders