R v CE
[2018] NSWDC 220
•14 May 2018
District Court
New South Wales
Medium Neutral Citation: R v CE [2018] NSWDC 220 Hearing dates: 14 May 2018 Decision date: 14 May 2018 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Trial to proceed by Judge alone.
Catchwords: CRIME - Judge alone trial - application - discretionary factors. Legislation Cited: Criminal Procedure Act 1986 (NSW), s132 and s132A Cases Cited: R v Belghar [2016] NSWCCA 116; Director of Public Prosecutions v Farrugia [2017] NSWCCA 197; and Brown v Director of Public Prosecutions [2018] NSWCCA 94 Category: Procedural and other rulings Parties: Crown
CE (young person)Representation: Mr B. Campbell (Crown Prosecutor)
Ms C. Doosey (Counsel for the young person)
File Number(s): 2016/00310975 Publication restriction: Non - publication order made of the names of the complainant and the young person and of any other material which might identify them, directly or indirectly.
Judgment
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Earlier today C.E was arraigned on an indictment which avers seven allegations of criminal misconduct against another juvenile.
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An application has been made by counsel for the young person for the trial, which began upon that arraignment, to be by way of a judge alone. The application is not opposed by the Crown.
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If this application had been made more than 28 days ago, there would be no issue as to the outcome of the application. That is because s 132 of the Criminal Procedure Act 1986 (NSW) does not give any discretion to a judge where both the accused and the Crown agree to a judge alone trial if the application is made, as I say, 28 days or more before the trial.
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However, because the application was not made within that time, it is necessary for the Court to grant leave under s 132A of the Criminal Procedure Act.
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Both counsel agree that, in considering whether or not to grant leave, the Court is entitled to determine the matter on the basis of the interests of justice.
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In this regard, it is instructive to refer to s 132(5) of the Criminal Procedure Act. That subsection provides that the Court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards including, but not limited to, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
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In recent times, the Court of Criminal Appeal has had to give consideration to discretionary issues arising out of applications made under s 132 of the Criminal Procedure Act. An authoritative statement of principle is contained in the decision of R v Belghar [2016] NSWCCA 116. Reference should also be made to the decisions of the Director of Public Prosecutions v Farrugia [2017] NSWCCA 197 and Brown v Director of Public Prosecutions [2018] NSWCCA 94. Each of those decisions draws attention to competing aspects of the notion of “the interests of justice”. Each of those decisions emphasises the importance in our criminal law of the “usual” position, namely a trial by a jury of 12. There are, however, other competing considerations, namely more efficient case management and, in certain circumstances, removing a highly inflammatory factual situation from a jury - that, of course, is not this case.
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It has been submitted on behalf of the application that the issues raised are of narrow compass, that the hearing would be expedited, and that it avoids the young complainant giving evidence before a jury - and all this is submitted in the context that there is no contest as to the events having occurred.
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The fact that there is only one issue in the case and that the trial will be expedited is not usually sufficient to justify a departure from the normal position, that is, a trial with a jury of 12.
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In this context I do not accept the submission by counsel for the young person that a jury is not an appropriate medium for determining whether the Crown has proved beyond reasonable doubt that the young person knew what he was doing was seriously wrong, as opposed to being naughty or engaging in childhood mischief. That is a question which juries are frequently called upon to determine.
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The factor which ultimately prevails in this application is that of practical utility. The Court is here in Queanbeyan for a very short period of time. There are competing demands on the Court’s time. If this application had been made in metropolitan Sydney, I would have rejected it. But in order to facilitate not only this trial, but other matters in the list (including the trials for next week which are of considerable concern to the Court given that they are the third trial dates for those accused who have been refused bail and also by reference to the other short matters which are in the list, including some highly contentious conviction appeals which have already been adjourned a number of times but which I am determined to deal with in these sittings), I shall grant the order sought by the applicant.
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I am satisfied that the young person has received advice from an Australian legal practitioner as to the consequences of the order.
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The matter will proceed by way of a trial by judge alone. For that reason, I shall have the jury panel immediately brought in and they can be thanked for their time and then they can be sent away.
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Decision last updated: 15 August 2018
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