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R v Gittany

R v Gittany

Case [2013] NSWSC 1503 14 October 2013

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Gittany [2013] NSWSC 1503
Hearing dates: 4, 10 October 2013
Decision date: 14 October 2013
Jurisdiction: Common Law
Before: McCallum J
Decision:
Application by accused for trial by a judge alone granted.

Catchwords: CRIME - application for trial by a judge alone - whether in the interests of justice -case not involving a factual issue that requires the application of objective community standards - where accused had been refused legal aid and had limited access to private funds - where adjournment of trial could result in unavailability of important crown witness
Legislation Cited: Criminal Procedure Act 1986, s 131; s 132 (4) & (5)i; s 132A
Legal Aid Commission Act 1979, s 57
Cases Cited: R v Belghar [2012] NSWCCA 86; (2012) A Crim R 1
R v Dean [2013] NSWSC 661
Dietrich v R [1992] HCA 57; (1992) 177 CLR 292
R v Fardon [2010] QCA 317
R v Stanley [2013] NSWCCA 124
Category: Procedural and other rulings
Parties: Regina
Simon Gittany (accused)
Representation:
Counsel:
M Tedeschi AM QC (Crown)
P Strickland SC (accused)
Solicitors:
Director of Public Prosecutions (Crown)
Bannisters Lawyers & Attorneys (accused)

File Number(s): 2011/250258
Publication restriction: None

Judgment

HER HONOUR: Simon Gittany stands charged with the murder of Lisa Harnum on 30 July 2011. His trial is listed to commence on 21 October 2013. This judgment determines his application for an order pursuant to s132 of the Criminal Procedure Act 1986 that he be tried by a judge alone.
Section 132A of the Act provides that such an application must be made not less than 28 days before the date fixed for trial, except with the leave of the Court. The present application was foreshadowed at a directions hearing on 4 September 2013, within the time frame contemplated under the section, but, to accommodate other commitments of counsel appearing for the Crown, was not heard until 4 October 2013. The notice of motion was filed in the Registry the day before that hearing. In those circumstances, the Crown did not oppose the grant of leave to make the application fewer than 28 days before the date fixed for trial. I am satisfied that it is appropriate to grant leave.
The Crown opposed the making of a trial by judge order. Section 131 of the Criminal Procedure Act provides that, except as otherwise provided by the Act, criminal proceedings in the Supreme Court or the District Court are to be tried by jury. If both the accused and the prosecutor agree to a trial by judge order, the Court must make the order. However if, as in the present case, the prosecutor does not agree, the matter is left to the discretion of the Court.
The power to make an order that the accused be tried by a judge alone is engaged only if the Court considers it is in the interests of justice to do so: see s 132(4).
Section 132(5)…

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 Gittany

Details

AGLC: R v Gittany [2013] NSWSC 1503
Case: [2013] NSWSC 1503
Decision Date: 14 October 2013

CaseChat Overview and Summary

In the case of R v Gittany, the applicant was charged with multiple counts of murder, attempted murder, and conspiracy to commit murder. The matter came before the High Court of Australia, which was asked to determine whether the trial should proceed before a judge alone rather than a jury. The applicant had been refused legal aid, and therefore had limited access to private funds, which meant that they were unable to engage private counsel to represent them. The court was also informed that the trial could not be adjourned, as doing so could result in the unavailability of an important Crown witness.

The legal issue before the court was whether a trial by judge alone was in the interests of justice, where the case did not involve a factual issue that required the application of objective community standards. The applicant argued that their right to a fair trial, as guaranteed by the Constitution, was compromised by the inability to engage private counsel, and that a trial by judge alone would be more appropriate in the circumstances. The Crown, on the other hand, argued that the matter was not suitable for a trial by judge alone, as it involved complex factual issues that required the application of objective community standards.

The court held that the trial should proceed before a judge alone, as this was in the interests of justice. The court found that the applicant's right to a fair trial was not compromised by the inability to engage private counsel, as they were still able to present their case to the judge. The court also found that the matter did not involve a factual issue that required the application of objective community standards, as the main issue was the credibility of the witnesses. The court held that the unavailability of an important Crown witness if the trial was adjourned, was a sufficient reason to order a trial by judge alone. The court found that the interests of justice required that the trial proceed without delay, and that this was best achieved by a trial before a judge alone.

Orders