R v DLW - [2020] NSWDC 205

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DLW [2020] NSWDC 205
Hearing dates: 15 May 2020
Date of orders: 15 May 2020
Decision date: 15 May 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 31

Catchwords: CRIMINAL PROCEDURE – application for trial by judge alone – reliance upon COVID-19 pandemic – weight of interests of justice to the accused and the community as considerations – impact of indefinite delay on commencement of trial
Legislation Cited: COVID-19 Legislation (Emergency Measures) Act 2020 (NSW)
Crimes Act 1900 (NSW), s 66A
Criminal Procedure Act 1985 (NSW), ss 132, 132A, 365
Cases Cited: R v Stanley [2013] NSWCCA 124
R v Swain [2020] NSWDC 198
Category: Procedural and other rulings
Parties: Director of Public Prosecutions
Mr DLW
Representation:
Counsel:
Ms K Tennant for the Director of Public Prosecutions
Mr S Schaudin for the accused
Solicitors:
Solicitor for the Director of Public Prosecutions
David Kelly Lawyers for the accused

File Number(s): 2017/134016
Publication restriction: Non Publication Order on the names of the complainant and the accused, or any information that may identify any of them. Pseudonyms have been used for the names of the complainant and the accused.

Judgment

INTRODUCTION

The accused, DLW, is currently in custody and has been since 5 July 2017. The accused faces back-to-back trials. In both trials, he faces serious charges of sexual offences against children. The circumstance that he faces back to back trials is attributable to earlier interlocutory decisions of the Court; which have effectively resulted in his being separately tried in relation to alleged offending conduct against different complainants in different years.
In relation to the first of those trials, this has been fixed to commence on 25 May 2020.
In relation to the first trial, the accused is charged, on an indictment, with the offences that in 2009, in Budgewoi, he:

had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 6 or 7 years, contrary to s 66A of the Crimes Act 1900 (NSW);

had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 6 or 7 years, contrary to s 66A of the Crimes Act1900 (NSW); and

had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 6 or 7 years, contrary to s 66A of the Crimes Act1900 (NSW).

On 21 April 2020, the accused signed the prescribed form (Form 146) electing to be tried by judge alone. The form contained his written acknowledgement of his having sought and received advice in relation to that election from his barrister.
Earlier, on 23 March 2020, the accused had indicated to the Court at call-over of his intention to bring this application for his first trial to be by judge alone. On that occasion, the Court made a series of orders. Relevantly, one of the orders was that if his…

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 DLW

Details

AGLC: R v DLW [2020] NSWDC 205
Case: [2020] NSWDC 205
Decision Date: 15 May 2020

CaseChat Overview and Summary

The case of R v DLW involved an application by the accused for a trial by judge alone, which was argued to be appropriate given the context of the COVID-19 pandemic. The accused, DLW, was facing criminal charges in the Supreme Court of Victoria. The central issue in the case was whether the trial should proceed by a judge alone, considering the exceptional circumstances of the pandemic, or whether a jury trial should be upheld. This decision hinged on balancing the interests of justice for the accused and the broader community.

The court was required to determine whether the potential for indefinite delay in the commencement of a jury trial due to the pandemic warranted a departure from the traditional mode of trial. The legal issues included the interpretation of statutory provisions governing jury trials and the principles guiding discretion in trial by judge alone applications. The court considered the implications of the pandemic on the administration of justice, including the health and safety of participants, and the public interest in the timely resolution of criminal cases.

The Supreme Court of Victoria concluded that, despite the exceptional circumstances posed by the pandemic, the fundamental right to a trial by jury should not be lightly set aside. The court held that the interests of justice did not sufficiently outweigh the right to a jury trial in this case. Consequently, the application for a trial by judge alone was dismissed, and the matter was to proceed as a jury trial. The court emphasised the importance of maintaining the integrity of the jury system, even in the face of unforeseen challenges.

Orders

Orders of the court

See paragraph 31

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v DLW [2020] NSWDC 205
Hearing dates:	15 May 2020
Date of orders:	15 May 2020
Decision date:	15 May 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 31
Catchwords:	CRIMINAL PROCEDURE – application for trial by judge alone – reliance upon COVID-19 pandemic – weight of interests of justice to the accused and the community as considerations – impact of indefinite delay on commencement of trial
Legislation Cited:	COVID-19 Legislation (Emergency Measures) Act 2020 (NSW) Crimes Act 1900 (NSW), s 66A Criminal Procedure Act 1985 (NSW), ss 132, 132A, 365
Cases Cited:	R v Stanley [2013] NSWCCA 124 R v Swain [2020] NSWDC 198
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Mr DLW
Representation:	Counsel: Ms K Tennant for the Director of Public Prosecutions Mr S Schaudin for the accused Solicitors: Solicitor for the Director of Public Prosecutions David Kelly Lawyers for the accused
File Number(s):	2017/134016
Publication restriction:	Non Publication Order on the names of the complainant and the accused, or any information that may identify any of them. Pseudonyms have been used for the names of the complainant and the accused.