R v GSR (1) - [2011] NSWDC 14

District Court

New South Wales

Medium Neutral Citation: R v GSR (1) [2011] NSWDC 14
Hearing dates: 31 January, 2 February 2011
Decision date: 02 February 2011
Jurisdiction: Criminal
Before: GD Woods QC DCJ
Decision:
Application for Judge Alone Trial Granted

Catchwords: Trial by Judge Alone - Trial by Jury - Removal of prosecution veto of judge alone trial - Pre-trial publicity - "Interests of Justice" Test
Legislation Cited: Courts and Crimes Legislation Further Amendment Act 2010
Criminal Procedure Act 1986
Criminal Appeal Act 1912
Cases Cited: TVM v Western Australia [2007] WASC 299
Western Australia v Martinez & Ors [2006] WASC 25
R v Fardon [2010] QCA 317
Arthurs v The State of Western Australia 2007 WASC182
Texts Cited: Nagle, J.F., "Collins; The Courts and the Colony", (1996)
Category: Procedural and other rulings
Parties: The Crown
GSR
Representation: Counsel:
Margaret Cunneen SC (Crown)
John Stratton SC (accused)
Solicitors:
Director of Public Prosecutions (NSW)
Ken Scurr (accused)

File Number(s): 2008/77882
Publication restriction: Suppression Order In Respect Of Accused's Identity And Name Of Towns To Which The Events Relate

Judgment

HIS HONOUR: There is before me a draft indictment charging that between 1 December 2001 and 11 July 2003 the accused by a deception, namely by falsely representing that he was entitled to perform the clinical practice of obstetrics, dishonestly obtained for himself a financial advantage, namely an appointment as visiting medical officer obstetrician and gynaecologist at two different regional District Hospitals.

The prosecution is brought pursuant to s.178BA of the Crimes Act, New South Wales 1900. That provision has since been removed to another part of the Crimes Act, but at the time of the alleged offence s.178BA was applicable. It may still be prosecuted even though the provision has been changed.

Normally a trial of such a matter in the District Court of New South Wales will be by a judge and jury of twelve civilian jurors. However, the law on trial by judge alone, which is permitted in certain circumstances, has recently been amended. This has been effected by the Courts and Crimes Legislation Further Amendment Act 2010 which became operative on 14 January this year, 2011. This statute refashions s.132 of the Criminal Procedure Act 1986 and introduces s.132A. Essentially the new law is that there may be, under certain conditions, trial by judge alone, even if the prosecutor does not agree to such mode of trial. In its previously existing formulation s.132 was so constructed that albeit the defence sought to opt for trial by judge alone, that request might be vetoed by the Director of Public Prosecutions in the exercise of his good judgment.

He was assisted in the exercise of that judgment, or his officers were, by the issuing of guidelines; important indicators to Crown Prosecutor and those who instruct them as to the proper mode of proceeding in prosecutions. Whereas for some time after the original introduction of s.132 in the 1980's the guidelines were formulated so that if the jury made a…

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 GSR (1)

Details

AGLC: R v GSR (1) [2011] NSWDC 14
Case: [2011] NSWDC 14
Decision Date: 02 February 2011

CaseChat Overview and Summary

In the matter of the Crown versus GSR, the defendant stood accused of serious criminal charges. The dispute centred on the defendant's application for a trial by a judge alone, rather than a trial by jury. The application was heard in the Supreme Court of Victoria. The crux of the legal issues was whether the trial should proceed by a judge alone, given the changes to the law that removed the prosecution's veto on such applications and the potential influence of pre-trial publicity on the fairness of a jury trial.

The court examined the legislative framework that had recently been altered to remove the prosecution's veto over a judge alone trial. It was necessary to balance the defendant's right to a fair trial against the potential prejudicial effects of pre-trial publicity on a jury. The court considered the interests of justice, which included the nature and gravity of the charges, the potential for prejudice arising from pre-trial publicity, and the effectiveness of safeguards to mitigate any prejudicial impact on the jury. After weighing these factors, the court concluded that the application for a trial by judge alone should be granted in the interests of justice.

Consequently, the court accepted the defendant's application. The decision to conduct the trial by a judge alone was based on the significant pre-trial publicity that had already occurred, which could potentially prejudice the jury's impartiality. The court determined that this risk outweighed the defendant's right to a jury trial, given the legislative changes and the nature of the charges. As such, the court ordered that the trial proceed before a judge alone.

Orders

Orders of the court

Application for Judge Alone Trial Granted

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 GSR (1) [2011] NSWDC 14
Hearing dates:	31 January, 2 February 2011
Decision date:	02 February 2011
Jurisdiction:	Criminal
Before:	GD Woods QC DCJ
Decision:	Application for Judge Alone Trial Granted
Catchwords:	Trial by Judge Alone - Trial by Jury - Removal of prosecution veto of judge alone trial - Pre-trial publicity - "Interests of Justice" Test
Legislation Cited:	Courts and Crimes Legislation Further Amendment Act 2010 Criminal Procedure Act 1986 Criminal Appeal Act 1912
Cases Cited:	TVM v Western Australia [2007] WASC 299 Western Australia v Martinez & Ors [2006] WASC 25 R v Fardon [2010] QCA 317 Arthurs v The State of Western Australia 2007 WASC182
Texts Cited:	Nagle, J.F., "Collins; The Courts and the Colony", (1996)
Category:	Procedural and other rulings
Parties:	The Crown GSR
Representation:	Counsel: Margaret Cunneen SC (Crown) John Stratton SC (accused) Solicitors: Director of Public Prosecutions (NSW) Ken Scurr (accused)
File Number(s):	2008/77882
Publication restriction:	Suppression Order In Respect Of Accused's Identity And Name Of Towns To Which The Events Relate