R v GAVARE - [2011] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GAVARE
[2011] SASC 78
Reasons for Decision of The Honourable Justice Kelly
29 March 2011
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
Application by accused for extension of time in which to elect for trial by judge alone - accused pleaded not guilty to charge of murder - where deceased an elderly woman allegedly murdered in her home - where newspaper articles published after the time for election referred to the murder of elderly women in their homes with one article referring to the deceased - whether time limit under the Juries Rules 1996 (SA) for election should be extended or dispensed with.
Held - application refused - although no ulterior motive or purpose behind the application, with the benefit of directions from the trial judge jurors should be expected to return a true verdict based upon evidence before them.
Juries Rules 1996 (SA) r 16 and r 17, referred to.
R v McGee and McGee (2008) 102 SASR 318; R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483; R v O, LJ [2010] SASC 145, discussed.

R v GAVARE
[2011] SASC 78
Criminal

KELLY J: This is an application by the accused that the Court dispense with the time limit stipulated under the Juries Rules 1996 (SA) within which the accused may elect for a trial by judge alone. The application is brought under r 16 and r 17 of the Juries Rules 1996 (SA) which permit the Court to dispense with compliance with all or any of the requirements of the rules, or to extend or abridge any of the periods of time prescribed by the rules if satisfied that there are special reasons for doing so or that it would be unjust not to do so.
The basis for the application is to be found in four newspaper articles tendered on behalf of the accused which appeared in The Advertiser. The first is an article on 7 October 2010, the second an article on 8 October 2010, the third an article on 28 January 2011, and the fourth an article on 26 March 2011.
All of the newspaper articles concerned refer to the murder of a number of elderly women in their homes. One of the articles on 28 January 2011 in a small inset within the article refers specifically to the murder of the deceased woman, the subject of the current charge of murder.
Mr Algie SC submits that there has been something of, as he termed it, a frenzy of concern in the community about the safety and welfare of elderly people and elderly women in effect led by the publication of articles such as the kind referred to in The Advertiser. In Mr Algie’s submission the publicity in the context of the current offence with which the accused is charged is, of itself, likely to engender a significant emotional response in the minds of…

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 GAVARE

Details

AGLC: R v GAVARE [2011] SASC 78
Case: [2011] SASC 78
Decision Date: 29 March 2011

CaseChat Overview and Summary

The case of R v GAVARE involved an application by the accused for an extension of the time in which to elect for a trial by a judge alone. The accused had pleaded not guilty to the charge of murder, with the deceased being an elderly woman allegedly murdered in her home. The application arose after the publication of newspaper articles following the time for election, one of which referred to the deceased, discussing the murder of elderly women in their homes. The legal issue before the court was whether the time limit under the Juries Rules 1996 (SA) for making the election should be extended or dispensed with, given the publication of the articles.

The court considered the application and noted that while there was no ulterior motive or purpose behind the application, the trial judge had provided directions to the jury to ensure they would return a true verdict based on the evidence presented. The court held that the jurors should be expected to follow these directions and return a verdict based on the evidence, thereby upholding the integrity of the trial process. The application for an extension of time was consequently refused.

The court's decision emphasised the importance of the jury's role in criminal trials and the expectation that jurors can adhere to judicial directions. The ruling confirmed that the time limit for making an election for a trial by judge alone should not be extended in the absence of compelling evidence that the jury could not be impartial. The final outcome was that the application was dismissed, and the case would proceed to trial before a judge and jury as originally scheduled.

Orders