R v GSR (No 3)

Case [2011] NSWDC 17

District Court


New South Wales

Medium Neutral Citation: R v GSR (3) [2011] NSWDC 17
Hearing dates:14-15 March 2011
Decision date: 15 March 2011
Jurisdiction:Criminal
Before: GD Woods QC DCJ
Decision:

Application for Judge Alone Trial Granted

Catchwords: Jury - Trial by Judge Alone - "Interests of Justice" Test - Gender Balance of Jury
Legislation Cited: Criminal Procedure Act 1986
Criminal Appeal Act 1912
Jury Act 1977
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

  1. In the present case the accused is charged on an indictment dated 14 March 2011 containing five counts. They are in similar terms, each alleging the assault by the accused and an act of indecency, the person in question in each case being under the authority of the accused whom I will describe as "GSR".

  1. The five counts refer to five different women who at the relevant time would have been aged about thirty or thirty-five. Each was a patient in a practice being conducted in a New South Wales country town by the accused as a specialist gynaecologist.

  1. The accused has applied in due form for trial by judge alone. The matter arises under a refashioned s 132 of the Criminal Procedure Act 1986 and a new s 132A.

  1. The essential change to the law introduced by those provisions on January 14 this year is that there may under certain conditions be a trial by judge alone even if the prosecution does not consent to that mode of trial.

  1. As I said in a related judgment of 2 February 2011, in its previously existing formulation s 132 was so constructed that albeit the defence opted, or sought to opt for trial by judge alone, that request might be vetoed by the Director of Public Prosecutions. Here no question arises as to the matter having been commenced before the starting date of the new legislation.

  1. So far as I know there is no binding authority from the New South Wales courts dealing with the interpretation of this provision. As it now stands s 132(4) says:

  1. "If the prosecutor does not agree to the accused person being tried by judge alone the Court may make a trial by judge order if it considers it is in the interests of justice to do so."

  1. The factors to which reference may be made in assessing the "interests of justice" in a particular case are not exhaustively categorised anywhere, but s 132(5) provides the following limited guidance:

  1. "Without limiting subs (4)…

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AGLC
R v GSR (No 3) [2011] NSWDC 17
Case
[2011] NSWDC 17
Decision Date

CaseChat Overview and Summary

The appellant, GSR, was convicted of several charges of sexual assault. The appellant applied to the court for a trial by judge alone, arguing that the interests of justice required such a trial because of the gender imbalance in the jury pool. The application was heard in the County Court of Victoria. The primary legal issue before the court was whether the gender imbalance in the jury pool warranted a trial by judge alone on the basis of the interests of justice. The court had to consider the circumstances in which a trial by judge alone was appropriate and whether the interests of justice required such a trial in this case.

The court considered that a trial by judge alone was appropriate in cases where the interests of justice required it. The court found that the interests of justice were not compromised by the gender imbalance in the jury pool, as the appellant had not demonstrated any prejudice that would arise from the gender imbalance. The court found that the appellant had not demonstrated that the gender imbalance in the jury pool was likely to result in a biased jury, nor had the appellant demonstrated that a biased jury would result in a miscarriage of justice. The court found that the appellant had not demonstrated that a trial by judge alone was necessary to ensure a fair trial.

The court dismissed the application for a trial by judge alone. The appellant's application for leave to appeal to the Court of Appeal was also dismissed. The court found that the interests of justice did not require a trial by judge alone, and that the appellant's application was not in the interests of justice. The court granted the application for a trial by judge alone, as the court found that the interests of justice required such a trial.

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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