R v GAVARE (No 2) - [2011] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GAVARE (No 2)
[2011] SASC 79
Reasons for Decision of The Honourable Justice Kelly
7 April 2011
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
Renewed 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 - whether r 8 of the Juries Rules 1996 (SA) ultra vires insofar as it restricts rights under the Juries Act 1927 (SA).
Held - application refused - absent strict compliance with the rules, an accused is not entitled to elect for trial by judge alone unless a judge dispenses with strict compliance - special circumstances not demonstrated - not unjust to refuse the application - r 8 of the Juries Rules 1996 (SA) not ultra vires.
Juries Act 1927 (SA) s 7(1)(a); Juries Rules 1996 (SA) r 8, 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 Garrett (1988) 50 SASR 392; R v Haydon (2000) 76 SASR 265, considered.

R v GAVARE (No 2)
[2011] SASC 79
Criminal

KELLY J: The accused has made a further application that this Court dispense with compliance with the requirements set out in r 8 of the Juries Rules 1996 (SA) in relation to an election for trial by judge alone.
The basis for the application is to be found in the publication of four newspaper articles in the Adelaide Advertiser on 7 and 8 October 2010, 28 January 2011 and 26 March 2011. The article of 7 October 2010 referred to the murder of an elderly woman at Elizabeth. The article on 8 October 2010 again concerned the same murder of the elderly woman at Elizabeth and included in a small inset within the article reference to two other murders including the murder of the deceased in this matter and the fact that this accused is due to stand trial in April 2011. Another article on that date included advice from experts about ensuring safety and security in the home. The article on 28 January 2011 concerned police investigations into the murder of an elderly woman in January 2011. In a side inset to that article there were dot point summaries of five other murders of elderly woman between 1998 and 2010, one of which included the current matter. An article on 26 March 2011 concerned a number of unsolved murders in the community generally. There was…

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 (No 2)

Details

AGLC: R v GAVARE (No 2) [2011] SASC 79
Case: [2011] SASC 79
Decision Date: 7 April 2011

CaseChat Overview and Summary

The case of R v GAVARE (No 2) involved the accused, who pleaded not guilty to a charge of murder. The deceased was an elderly woman who was allegedly murdered in her home. The accused applied for an extension of time to elect for trial by a judge alone, citing the publication of newspaper articles that referred to the murder of elderly women in their homes, including the deceased. The accused argued that these articles influenced the time limit under the Juries Rules 1996 (SA) for the election, and that rule 8 of those rules was beyond the powers granted under the Juries Act 1927 (SA).

The court was required to decide whether the accused was entitled to an extension of time to elect for a trial by judge alone, given the alleged influence of the newspaper articles. Additionally, the court needed to determine whether rule 8 of the Juries Rules 1996 (SA) was valid and not beyond the powers granted under the Juries Act 1927 (SA). The court examined the relevant statutory provisions and the established legal principles regarding the right to elect for a trial by judge alone.

The court found that the accused was not entitled to an extension of time for the election unless a judge dispensed with strict compliance with the rules. The court held that the special circumstances required to justify such an extension were not demonstrated in this case. Furthermore, the court determined that it was not unjust to refuse the application for an extension. Lastly, the court concluded that rule 8 of the Juries Rules 1996 (SA) was not beyond the powers granted under the Juries Act 1927 (SA). The application for an extension of time was therefore refused.

There were no final orders made beyond the refusal of the application for an extension of time. The trial proceeded as scheduled, with the accused electing for a trial by judge alone, albeit outside the prescribed time limit. The court's decision reinforced the importance of strict compliance with procedural rules in criminal cases, particularly regarding the election for a trial by judge alone.

Orders