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R v Eyuboglu

R v Eyuboglu

Case [2019] NSWSC 181 21 February 2019

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Supreme Court

New South Wales

Medium Neutral Citation: R v Gokhan Eyuboglu [2019] NSWSC 181
Hearing dates: 21 February 2019
Decision date: 21 February 2019
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
Trial to proceed by judge alone.

Catchwords: CRIMINAL LAW – murder – application by accused for trial by judge alone – consent of Crown – requirement for leave due to lateness of application – leave not opposed by Crown – foreshadowed defences of mental illness and substantial impairment – whether concern about appropriateness of trial by judge alone could inform question of refusal of leave – leave granted, application granted, order for trial by judge alone made
Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 132(2), 132A(1)
Crimes Act 1900 (NSW), s 23A
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513
R v M’Naghten (1843) 8 ER Rep 718
R v Hadler [2018] NSWSC 1151
AK v State of Western Australia (2008) 232 CLR 438; [2008] HCA 8
R v Stanley [2013] NSWCCA 124 at [61]
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Category: Procedural and other rulings
Parties: Regina (Crown)
Gokhan Eyuboglu (Accused)
Representation:
Counsel:
Craig Everson (Crown)
Tony Evers (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
McGirr Lawyers (Accused)

File Number(s): 2017/329217
Publication restriction: Nil

EX TEMPORE JUDGMENT – REVISED

Introduction

This application for a trial by judge alone, on an indictment containing a single count of murder, raises the question of the interaction between, on the one hand, the requirement for leave (if the application is not made earlier than 28 days before the trial date) in s 132A(1) of the Criminal Procedure Act 1986 (NSW) (the Act), and, on the other hand, the fact that, if the Crown and the accused are agreed in the affirmative in the substantive question, then it is incumbent upon me to make the order, pursuant to s 132(2) of the Act.
In particular, it raises the question of whether leave could be refused – even when leave is not opposed by the Crown – if the trial judge is concerned about the appropriateness of trial by judge alone, particularly when the determination of the matter will call for an explicit application of community standards.

Background

The background of the matter is as follows.
The murder is alleged to have occurred on 29 August 2017.
The accused was charged on 31 October 2017.
He was committed for trial on 19 April 2018.
The matter came before Johnson J in this Court on 4 May 2018 for arraignment. On that occasion, the solicitor then appearing for the accused informed his Honour that the sole issue in the trial would be self defence.
On that occasion, his Honour set the matter down for trial on 4 March 2019.
In due course, the matter was assigned to me. On 25 October 2018, my associate emailed the parties, informing them that I would be…

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 Eyuboglu

Details

AGLC: R v Eyuboglu [2019] NSWSC 181
Case: [2019] NSWSC 181
Decision Date: 21 February 2019

CaseChat Overview and Summary

The case of R v Eyuboglu involved the accused, Eyuboglu, who was charged with the offence of murder. The matter was before the court to consider an application by Eyuboglu for a trial by judge alone. The Crown did not oppose the application nor the grant of leave due to its lateness. Eyuboglu's application was foreshadowed by anticipated defences of mental illness and substantial impairment, which raised concerns about the appropriateness of a trial by judge alone.

The legal issue before the court was whether concerns about the appropriateness of a trial by judge alone could inform the decision to refuse leave for a late application. The court had to consider the balance between the rights of the accused to a fair trial and the potential prejudice to the Crown caused by the lateness of the application. In this instance, the Crown did not oppose the grant of leave, which simplified the court's decision-making process.

The court found that, despite the lateness of the application, the concerns about the appropriateness of a trial by judge alone were sufficiently compelling to warrant granting leave. The court reasoned that the potential defences of mental illness and substantial impairment justified a trial by judge alone to ensure a fair and just outcome. Consequently, the court granted the application and ordered that Eyuboglu's trial be conducted by a judge alone.

The final orders of the court included the granting of leave for the late application, the approval of the application for a trial by judge alone, and the direction that Eyuboglu's trial proceed before a judge without a jury. This decision ensured that Eyuboglu's rights to a fair trial were protected, while also addressing the Crown's interests in the administration of justice.

Orders