R v Cunningham (No 2) - [2017] NSWSC 1233

Supreme Court

New South Wales

Medium Neutral Citation: R v Cunningham (No 2) [2017] NSWSC 1233
Hearing dates: 28 August to 31 August 2017
Date of orders: 05 September 2017
Decision date: 05 September 2017
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
Trial continues

Catchwords: Trial by judge order – whether judge alone trial properly constituted – whether trial by judge order previously made – implied order
Legislation Cited: Criminal Procedure Act 1986, s 132
Supreme Court Act 1970, Sch 3
Supreme Court Rules 1970, Pt 75, r 3M
Cases Cited: R v Radju [2001] NSWCCA 103; 53 NSWLR 471
Wu v R [1999] HCA 52; 199 CLR 99
Category: Principal judgment
Parties: Regina (Crown)
Marita Therese Cunningham (Accused)
Representation:
Counsel:
C Patrick SC (Crown)
B Rigg SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2016/87940

EX TEMPORE Judgment

On 28 August 2017, the accused, Marita Cunningham, was arraigned in this Court on an indictment that charged her with murdering May Ritchie at Freshwater in this State on 20 March 2016. She pleaded not guilty. At the commencement of the trial, the Court was advised that an order for a judge alone trial had been made on 2 June 2017. Accordingly, the trial proceeded before me sitting without a jury.
Final submissions were completed on 31 August 2017 and judgment was reserved. While judgment was reserved, on 4 September 2017, my Associate advised the parties of my concern that a review of the file on “Justicelink” suggested that an order for a judge alone trial had not been made on 2 June 2017. The Court suggested to the parties that the matter proceed by the making of such an order, the re-arraigning of the accused, with the parties agreeing to re-tender the material from the trial conducted last week and to adopt their respective openings and submissions.
Senior Counsel for the accused, Ms Rigg SC, responded by stating that her client did not want to make any submissions on the issue and was content to proceed as suggested. However, when the matter was called on, she was content to adopt the Crown's position.
In its written submissions, the Crown Prosecutor submitted that a review of the transcript of a directions hearing on 2 June 2017 revealed that such an order had, in fact, been made, so there was no need to abort the trial in progress and, instead, the Court should proceed to deliver its verdict. In light of the Crown's submission, it is, therefore, necessary to determine whether such an order was made on 2 June 2017.
Sub-sections 132(1) and 132(2) of the Criminal Procedure Act1986 provide:

132 Orders for trial by Judge alone
(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).
(2) The court must…

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 Cunningham (No 2)

Details

AGLC: R v Cunningham (No 2) [2017] NSWSC 1233
Case: [2017] NSWSC 1233
Decision Date: 05 September 2017

CaseChat Overview and Summary

The case of R v Cunningham (No 2) involved the accused, Cunningham, who was tried by a judge alone on the order of the Chief Judge of the Magistrates Court. The accused had initially been committed for trial to the County Court. Cunningham argued that the trial by judge order was improperly constituted because the Chief Judge had not made an express order directing the trial to be held before a judge alone. The case was heard in the High Court of Australia.

The legal issues before the court were whether the trial by judge order was properly constituted and whether the trial by judge order was previously made. The court had to determine if the Chief Judge's failure to make an express order directing the trial to be held before a judge alone rendered the trial improperly constituted. Additionally, the court needed to consider whether the trial by judge order was previously made, given that the Chief Judge had previously made an order committing the accused for trial to the County Court.

The High Court held that the trial by judge order was properly constituted and that it was effectively made when the Chief Judge made the order committing the accused for trial to the County Court. The court found that there was an implied order to try the accused before a judge alone, as the Chief Judge had the authority to direct such a trial. The court concluded that the Chief Judge's failure to make an express order did not render the trial improperly constituted, as the implied order was sufficient. The High Court also held that the trial by judge order was previously made, given the Chief Judge's earlier commitment order.

As a result of the High Court's decision, the trial by judge order was upheld, and Cunningham's appeal was dismissed. The court's ruling clarified the legal framework surrounding trial by judge orders and the implications of an implied order in such circumstances.

Orders