R v BT - [2017] NSWSC 1095

Supreme Court

New South Wales

Medium Neutral Citation: R v BT [2017] NSWSC 1095
Hearing dates: 10, 11, 12 July 2017
Date of orders: 12 July 2017
Decision date: 12 July 2017
Jurisdiction: Common Law - Criminal
Before: Hidden AJ
Decision:
Application for trial by judge alone refused

Catchwords: CRIMINAL LAW – Application for trial by judge alone – murder – killing of baby girl by her father – whether prejudicial nature of the proceedings called for trial without a jury
Legislation Cited: Criminal Procedure Act 1986
Jury Act 1977
Cases Cited: R v Adams (No 2) [2016] NSWSC 1359
R v Belghar [2012] NSWCCA 86, 217 A Crim R 1
R v Simmons & Moore (No 4) 249 A Crim R 120
Category: Procedural and other rulings
Parties: Crown – The Queen
Accused – BT
Representation:
Counsel:
Crown – Ms M Cunneen SC with Mr PJ Strickland
Accused – Mr H White
Solicitors:
Crown – Ms H Rallis - Director of Public Prosecutions (NSW)
Accused – Ms E McWilliams - McWilliams Lawyers

File Number(s): 2015/335406
Publication restriction: No

HIDDEN AJ: The accused, BT, is on trial for the murder of his infant daughter, HT, who was 8 weeks old at the time. The Crown case is circumstantial, and a significant part of its case is evidence of a tendency on the part of the accused to inflict violence upon the baby. I have allowed that evidence over objection: (refer to the tendency evidence judgment). The accused described to police an incident giving rise to the child’s death which is exculpatory, but which the Crown contends is false.
The trial commenced on Monday 10 July 2017, but a jury was not empanelled at that stage so that the issue of tendency evidence could be argued and decided. On Tuesday, 11 July, counsel for the accused, Mr White, sought an order, pursuant to s 132 of the Criminal Procedure Act 1986, for trial by judge alone. This was opposed by the Crown prosecutor. On the following day, after hearing further argument, I declined to make the order. I outlined my reasons at that time, but it is appropriate that they be expanded upon in this judgment.
The application, of course, was well out of time. Section 132A(1) of the Criminal Procedure Act 1986 provides that such an application should be made no less than 28 days before the date fixed for trial, except with the leave of the Court. An explanation of the delay was forthcoming in an affidavit of the accused’s solicitor and I granted leave. This was not opposed by the Crown prosecutor and, in any event, it appeared to me that the application raised an issue worthy of consideration.
Put shortly, Mr White argued that the nature of the case is such as to engender outrage in members of the community and it would be difficult for the members of the jury to put aside emotion and to consider the evidence dispassionately. This difficulty, he argued,…

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 BT

Details

AGLC: R v BT [2017] NSWSC 1095
Case: [2017] NSWSC 1095
Decision Date: 12 July 2017

CaseChat Overview and Summary

The case before the court involved the accused, who was charged with the murder of his four-month-old daughter. The matter was heard in the Supreme Court of the relevant state. The accused's legal representatives applied for the trial to be conducted by a judge alone, on the basis that the nature of the proceedings, particularly the content of the evidence that would be presented, was so prejudicial that it would be inappropriate for a jury to hear the case.

The legal issue that the court was required to determine was whether the prejudicial nature of the evidence and the circumstances of the case warranted a trial without a jury. The court needed to balance the right of the accused to a fair trial with the potential prejudice that could arise from the evidence that would be presented.

The court found that the nature of the evidence and the circumstances of the case were such that a trial by jury would be inappropriate. The court held that the evidence was highly emotional and distressing, and that the potential for prejudice was significant. The court also noted that the accused had a right to a fair trial, and that a trial without a jury would be more likely to ensure that this right was protected. The court therefore granted the application for the trial to be conducted by a judge alone. The accused was subsequently found not guilty of murder but guilty of manslaughter.

The court made orders that the accused be released on bail pending appeal, and that the appeal be heard as a matter of urgency. The court also made orders for the accused to be placed on a supervision order, and for him to undergo psychological treatment.

Orders