R v Haydon

R v HAYDON
[2000] SASC 125

Court of Criminal Appeal: Debelle, Nyland and Lander JJ

DEBELLE J. The appellant was tried by a judge alone on two counts of assault occasioning actual bodily harm. He was convicted. He appeals from that conviction.

Trial by Judge Alone

The first ground of appeal is that the trial was a nullity in that no election for trial by judge alone had been made in accordance with the Juries Rules 1996. To understand this ground of appeal it is necessary to review the history of the matter.
On 4 March 1999 the appellant was arraigned before Judge Anderson of the District Court sitting on circuit in Mount Gambier. He was charged with three offences. They were two offences of an assault occasioning actual bodily harm and one offence of shooting with intent to do grievous bodily harm. The appellant pleaded not guilty. He was remanded for trial on 22 March. The offence of shooting with intent to do grievous bodily harm is a major indictable offence since it is punishable by imprisonment for life: s 21 of the Criminal Law Consolidation Act 1935 and s 5(3) of the Summary Procedure Act 1921. In the particular circumstances of this case, the two offences of assault occasioning actual bodily harm were minor indictable offences in that the offence was punishable by a maximum period of imprisonment for five years: s 40 of the Criminal Law Consolidation Act and s 5(3) of the Summary Procedure Act. As the offences for which the appellant was being tried included a major indictable offence he was to be tried by a jury unless he elected to be tried by a judge alone in accordance with s 7(1) of the Juries Act 1927.
It is necessary for this appeal to note the provisions of s 7(1), s 7(2) and s 7(4). Section 7(3) applies where two or more persons are jointly charged and it is not relevant in this appeal.
“7(1) Subject to this section, where, in a criminal inquest before the Supreme Court or the District Court —
(a).... the accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,
the inquest will proceed without a jury.
(2) No election may be made under subsection (1) where the accused is charged with a minor indictable offence and has elected to be tried in the District Court.
...
(4) Where a criminal inquest proceeds without a jury in pursuance of this section, the judge may make any decision that could have been made by a jury on the question of the guilt of the accused, and such a decision will, for all purposes, have the same effect as a verdict of a jury.”

A “criminal inquest” is defined by s 3 of the Juries Act to mean a trial before a court of criminal jurisdiction of any indictable offence. A trial of these offences in the District Criminal Court was, therefore, a criminal inquest to which s 7 applied.

On 22 March 1999 the appellant applied for a trial by judge alone. The application was granted. It is common ground that the application was made and determined in accordance with s 7 of the Juries Act 1921 and the Juries Rules. On 6 April Judge Anderson found the accused guilty of two offences of assault occasioning actual bodily harm but not guilty of the charge of shooting with intent to do grievous bodily harm. The appellant appealed against those convictions. On 17 August the Court of Criminal Appeal quashed the conviction and directed a new trial.
Subsequently on 28 October 1999, the appellant was re-arraigned before Judge Bright on circuit at Mount Gambier. On that occasion, he was arraigned only on the two counts of assault occasioning actual bodily harm. He again pleaded not guilty. He was remanded for trial. On 29 October the trial proceeded before Judge Bright sitting alone without a jury. The appellant was represented by counsel. Counsel for the appellant did not give any advice to the appellant on the question of trial by judge alone nor seek any instructions from him on that question. The appellant’s counsel did not make a fresh application for trial by judge alone. It appears that the judge and all the parties proceeded on the footing that the election as to trial by judge alone made before Judge Anderson applied to the re-trial. We asked Judge Bright for a report on this issue. The judge reported that it was his understanding that the trial would be by judge alone. He had assumed that the original election made before Judge Anderson still applied. No submission or comments were made to him on the issue, save for the fact that at the call-over of the list at Mount Gambier before the trial, counsel for the appellant referred to the fact that the trial would be by judge alone. That last fact is confirmed by an endorsement written on the file by the judge’s associate on the day of the call-over which reads: “*TRIAL BY JUDGE ALONE*.”
These facts give rise to two issues. The first is whether the appellant could lawfully be tried by judge alone. That was the ground on which the appellant initially relied. The second arose in the course of argument. It was whether Judge Bright was required to be satisfied of the matters prescribed by s 7(1) and, if so, whether he had failed to do so and what were the consequences of such failure.

The Procedure for Election

The trial before Judge Bright was a criminal inquest within the meaning of the Juries Act. Criminal inquests are tried by jury unless the accused elects for trial by judge alone pursuant to s 7 of the Act. As s 7(1)(a) prescribes, the election for trial by judge alone must be made in accordance with the Rules of Court. They are the Juries Rules 1996. Rules 8 and 9 of the Rules prescribe the manner in which the election may be made. Rule 8(1) provides that the election must be made “in the manner and at the time stipulated in this Rule and not otherwise”. A failure to comply with the procedures prescribed by Rule 8 is not regarded as a mere technical departure and may prevent an election being made unless the trial judge dispenses with compliance pursuant to Rule 16: R v Garrett (1988) 50 SASR 392, 399. Although Garrett is a decision upon the previous form of the Rules, the present Rules are sufficiently similar to render that decision still relevant. In other words, the effectiveness of the election and the jurisdiction of the court to try an accused by a judge alone depends on compliance with Rule 8 and Rule 9: cf. R v Birlut (1995) 39 NSWLR 1 per Kirby P at 5. As already mentioned, it is common ground that the election for a trial by judge alone made before Judge Anderson on the first trial was made in accordance with the Rules.

The Election Applies to a New Trial

The Juries Rules make no express provision whether an election by an accused for trial by judge alone continues to be operative after a successful appeal against the conviction recorded by a judge sitting alone which has resulted in a new trial being ordered. However, for the reasons which follow, it is the effect of the Rules that the election continues to be operative and that it is not necessary to make a fresh election.
Rule 13 provides that an election once made cannot be withdrawn except with the leave of a judge. Rule 12 provides that accused persons may make an election where, among other things, a new trial has been ordered and that the election may be made notwithstanding the provisions of Rule 8 and Rule 9. Rule 12 is expressed in these terms:
“Notwithstanding the provisions of Rules 8 and 9 where there has been a mistrial or a jury has been unable to reach a verdict or an appeal against convictions has been allowed and the accused person or persons have been remanded for a new trial the accused person or persons may make the election in the way set out in Rules 8 and 9 within 14 days of being remanded for a further trial.”

The opening words of Rule 12 indicate that it is intended to provide accused persons with a dispensation from the requirements of Rule 8. In particular it dispenses with the requirements of Rule 8(1) which, it is useful to repeat, provides that an election must be made in accordance with the requirements of Rule 8 but not otherwise. Those requirements include Rule 8(5) which requires notice of the election to be filed no later than the last day on which the Registry is open prior to the first arraignment of the accused or by informing the judge on the first arraignment of the accused and Rule 8(6) which provides, in the case of an accused committed for trial to a circuit sittings, that the notice be filed within 14 days after the accused has been committed for trial.

The effect of Rule 12 is to provide accused persons with another opportunity to make an election, notwithstanding that they have not done so earlier in those cases where either there has been a mistrial or a jury has been unable to reach a verdict or a new trial has been directed after an appeal against conviction has been allowed. It does not apply where an election has been made and a new trial has been ordered following a successful appeal against conviction. There are at least two reasons for that conclusion. First, Rule 13 states that an election once made cannot be withdrawn except by leave. Although Rule 12 grants dispensation from Rules 8 and 9, it provides no dispensation from Rule 13. That leads to the second reason, namely, that if it had been intended that Rule 12 should apply where an election had already been made, the Rule would have been expressed in terms which granted a dispensation from Rule 13 or it would have been expressed to apply notwithstanding Rule 13. It might be added that, if, as the appellant contends, the position is that accused persons may make a fresh election whenever it is necessary to order a re-trial, it would have been unnecessary to have included Rule 12 — that is to say, Rule 12 would have been quite superfluous.
The scheme of the Rules is that, when a new trial is ordered, for whatever reason, a person who has made an election is bound by it unless he satisfies a judge that an order should be made under Rule 13 permitting withdrawal of the election. However, a person who has been tried by a jury has a fresh opportunity to make an election for trial by judge alone. The decision in Hollis (Unreported, 16 December 1994, SCCRM-94-500, Cox J) does not require a different conclusion. Hollis is a decision dealing with the Rules made before they were replaced by the Juries Rules 1996.
For these reasons, once an election has been made, it applies to all subsequent trials for the same offences. The Rules do not require a fresh election to be made on the occasion of each new trial. Indeed, they express a contrary intention. The appellant was simply unable to make a fresh election before being tried by Judge Bright unless he obtained leave to do so pursuant to Rule 13.
I turn to the two issues identified earlier.

Was Trial by Judge Alone Available?

The notice of appeal asserted that the terms of s 7(2) of the Juries Act precluded the appellant from being tried by judge alone. That was said to flow from the fact that, on the second trial, the appellant was being tried for two minor indictable offences. Mr McRae, who appeared for the appellant, did not press that argument. He was correct to do so. The argument fails to acknowledge that the appellant was bound by his election made on the first trial. As he was then being tried for offences which included a major indictable offence, he was able to elect to be tried by judge alone. Furthermore, in the particular circumstances of this case, the provisions of s 7(2) were not satisfied and this section could not, therefore, apply. Section 7(2) applies only where the accused is charged with a minor indictable offence and has made an election to be tried in the District Court. The election to which s 7(2) refers can only be the election which is now to be found in s 103(3) of the Summary Procedure Act, that is to say an election by a defendant charged in the Magistrates Court with a minor indictable offence to be tried in a superior court: see also Director of Public Prosecutions (SA) v Byrnes and Hopwood (1993) 170 LSJS 196. The appellant had not made any such election nor was he ever able to do so. For all of these reasons, s 7(2) had no application in the circumstances of this case.

Was there compliance with s 7?

The next issue concerns the requirements of s 7(1) and whether Judge Bright had complied with them. Mr McRae submitted that the judge had failed to comply with s 7(1). Pointing to the terms of s 7(1)(b), he submitted that the judge was obliged to satisfy himself that the appellant had, before making the election, sought and received advice from a legal practitioner in relation to the election. It was not sufficient, he said, for the judge to proceed on the footing that an election had already been made before another judge on the first trial.
This argument fails to have sufficient regard to the terms of Rule 13. Judge Bright knew that an election for trial by judge alone had been made before Judge Anderson on the occasion of the first trial. When the appellant was re-arraigned in Mount Gambier on 28 October 1999, the judge was informed by counsel for the appellant that the trial would be by judge alone. No application had been made to Judge Bright to withdraw the election. It is reasonable to infer that he was aware of the terms of Rule 13 and took the view that the appellant could not withdraw the election and was abiding by it. In addition, he would be entitled to assume that Judge Anderson had been satisfied as to the matters prescribed by s 7(1)(b). Finally, and perhaps most importantly, for the reasons already given, the appellant did not have to make a fresh election. Shortly stated, Judge Bright knew that the accused had elected before Judge Anderson to be tried by judge alone. He was entitled to infer that Judge Anderson had been satisfied that the appellant had received legal advice before he made the election. The election could not be withdrawn except by leave. Section 7(1) does not require the appellant to make a fresh election before the re-trial. There was, in short, nothing new which Judge Bright could ascertain.
When all of these facts are listed, it is apparent that Judge Bright had cause to be satisfied of the matters prescribed by s 7(1)(b) and to be satisfied that it was appropriate for the accused to be tried without a jury. A judge is required, even when conducting a new trial, to be satisfied that the election has been made in the manner required by s 7(1). I am satisfied that Judge Bright was so satisfied. I do not think this ground should succeed.

An Alternative Route

This conclusion may be reached by another route. For the reasons which follow, even if Judge Bright should have satisfied himself before the trial commenced that the requirements of s 7 had been complied with, I do not think the trial miscarried. As Kirby P noted in Birlut (supra) at 5, criminal procedure in our tradition is, generally speaking, strict. A procedural error or omission may, in some cases, be so significant that it strikes the heart of the jurisdiction of the court: Glennon v The Queen (1994) 179 CLR 1 at 8; R v Yuill (1994) 34 NSWLR 179. This is not such a case. Section 7 does not concern the jurisdiction of the court but the procedural requirements, prescribed by s 7(1), for an election to be tried by judge alone. When there has been a failure to comply with procedural requirements established by legislation, the preferred test for determining the validity of what has been done is not whether the legislation is mandatory or directory in its terms, but whether it is the purpose of the legislation that an act done in breach of the provisions should be invalid: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390. Where the Parliament does not specify the consequence of non-compliance, it is for the court to determine what the consequence should be. When determining the purpose of the legislation, the court may have regard to the second reading speech: Owen v State of South Australia (1996) 66 SASR 251. The purpose of the legislation is apparent from its terms and there is no need to resort to Hansard. The intention of s 7 is to enable accused persons to elect for trial by judge alone provided that the election is made in accordance with Rules of Court and the judge presiding over the trial is satisfied that an accused person who has elected for trial by judge alone has sought and received legal advice before making the election.
In this case, the accused had been advised in relation to the first trial and the Juries Rules do not permit that election to be withdrawn. Further, a fresh election is not required in the particular circumstances of this case. The purpose of the legislation has been fulfilled in that an election has been made in accordance with the Rules by an accused person who had received legal advice before making his election. It could not be imagined that Parliament intended that a new trial should miscarry simply because the judge presiding over that trial, who was aware of the early election, had failed to ascertain if the accused had been advised before making the election particularly where, as here, had the question been asked the answer would have been a simple yes. It is even less likely that Parliament intended that should be the result when the accused, through his counsel, informed the judge that the trial would again be by judge alone. Although the better course would have been for Judge Bright to have satisfied himself that s 7(1) had been complied with, the failure to do so does not lead to the consequence that the trial has miscarried.

The Remaining Grounds

The issues in this trial were in narrow compass. The case for the prosecution was that a man called Wiese had been assaulted at his home in Millicent early in the morning of 14 July 1996. Wiese is also known as “Crockett”. He was beaten with an object, probably a baseball bat, and later fired at by a person holding a shotgun which resulted in a pellet lodging in Wiese’s right thigh and another pellet lodging in his head.
Wiese was alone in his house when the attack occurred. At about 5.30 in the morning on 14 July 1996, he answered a knock on his front door. It was still dark. On opening the door, he was struck a blow on his head. He had a glimpse of two figures standing outside the door silhouetted against the street light. They were wearing dark clothing and balaclavas. One of those persons had struck him. The other was carrying a gun. It was pointed down to one side. Wiese turned and ran through his house and emerged outside. He saw the two figures walk out into the street. When they were about 30 metres from him, the man carrying the gun raised it to his hip and fired it in the direction of Wiese. Wiese felt something hit his leg. The two men walked slowly away. Wiese could not identify his assailants. The central issue of the trial was whether the appellant was one of them.
Judge Bright found that two assaults occasioning actual bodily harm had occurred. The first was the assault to the head. The second was the shooting by which two pellets hit Wiese. In relation to the first assault, the judge found that the two persons who came to the house that morning were acting in concert in the course of carrying out a joint enterprise. There is no appeal against those findings. The judge went on to conclude that Wiese was one of the assailants. The issues in the appeal concern that finding.
The only evidence that the appellant was involved in these assaults came from a confession alleged to have been made by the appellant to a Mr Dempsey and to Dempsey’s sometime partner, Ms West. Dempsey and Ms West both gave evidence.

Dempsey knew both Wiese and Haydon. He knew that the appellant did not like Wiese. The appellant had said to him that he did not like Wiese a great deal because he had drugs in his back yard. Dempsey had seen the appellant with two firearms, one of which was a sawn-off double barrelled shotgun. His evidence was that, at about nine o’clock on the day of the shooting, he had received a telephone call from the appellant’s partner, Kellie. He went to the appellant’s house with Ms West. The appellant was not there when they arrived but Kellie was. Dempsey’s evidence was that the appellant had told him that he had been with a person called Eddie to Crockett’s home and that Crockett had been shot. (It will be recalled that Wiese was also known as Crockett.) Dempsey knew who Eddie was. According to Dempsey, the appellant said:
“Q.    Can you give us any details of what he told you.
A.     Yes. Him and Eddy went around there.
Q.     Did you know who Eddy was.
A.     Yes.
Q.     Please continue.
A...... They knocked on the front door, and they had spoken some sort of foreign language, like trying ot make out so they didn’t sound like Australians. Crockett opened the door and Ron said Eddy hit Crockett with the bat, and Crockett sort of took off out the back door, and Ron said they chased him out through the back door, outside the house, and he was squealing like a little girl. They couldn’t catch him, so Ron shot him.”

Dempsey said that the appellant had said that he had buried the gun and his clothes. He also said that the appellant appeared to be “pretty hyped up”. In cross-examination, Dempsey said that the appellant was using amphetamines that day but he was clear in what he was telling him.

The evidence given by Ms West was similar, although not identical in effect. She said that, at nine o’clock on the morning of the shooting, she received a telephone call at her house. The appellant was the caller. He said, “The shit’s hit the fan. Can you come over here?” She said that the appellant sounded excited. She handed the receiver to Dempsey. Dempsey had a short conversation with the appellant. At about 10.30 am she and Dempsey arrived at the appellant’s house. The appellant was not there but his partner Kellie was. The appellant arrived about one hour later. According to Ms West the appellant gave the following account of the attack upon Wiese.
“Q.... Can you tell us, as best you remember, in the words that the accused, Ron Haydon, used, what he said.
A.That him and another fella went to Crockett’s house. They had all dressed in black, with balaclavas on, went to the door, knocked on the door. Crockett answered the door, they’ve forced their way in. Crockett was hit with a bat, a baseball bat. As he took off out the other door, Ron had chased after him out the door and shot at him.
Q...... Did he say anything about the subject of when this had occurred.
A.No.
Q...... Did he say whether anything had been spoken during the incident.
A.They said when they knocked on the door, Crockett had asked who it was, and they made up Italian accents to get him to open the door and said ‘This is Tony here’, so he would open the door.”

The accused did not give evidence.

If accepted, these two accounts of this confession were strong evidence against the appellant. The trial judge was not prepared to accept Dempsey’s evidence unless it was supported by Ms West. In that sense, the prosecution case hinged on her evidence. Notwithstanding that there was some discrepancies between the account of the assault given in this confession and the version of the assault given by Wiese, the trial judge accepted the evidence of Dempsey and West. He found that Ms West’s account supported the evidence of Dempsey and that neither her version nor Dempsey’s version had been shaken in cross-examination. In his view, it was not a reasonable possibility that this alleged confession had been fabricated. He was satisfied that the appellant had, on the morning of the shooting, told West and Dempsey about it in words similar to those given in evidence.
The appellant seeks to attack the trial judge’s conclusion on several grounds. The first is that the trial judge accepted the evidence of Ms West without expressing any reason why it should be accepted. This ground cannot succeed. The reasons for the verdict of the trial judge set out a number of grounds on which he relied for the purpose of accepting her evidence. He addressed the criticisms made of it by counsel for the appellant and decided that he should accept her evidence. The reasons given by the trial judge for his conclusion were clearly open to him. There is no reason to depart from them.
The account of this attack given by Dempsey and West differed from the account given by Wiese. According to Dempsey and West, the assailants had entered Wiese’s house and had chased him through the house. Wiese’s evidence was that he had run through the house but he did not say that he had been chased. In addition, according to the account given by West, the assailants had knocked on a different door from that identified by Wiese. These are but matters of detail. They do not affect the substance of the story. The differences might also be explained by the fact that they did not sign a statement to the police until March 1998, some 20 months after the attack, when recollection would not be as accurate as it might have been earlier. The compelling fact remains that they recount a confession of an attack upon Wiese at his house which in substance is very similar to the account given by Wiese and differs from that account in minor respects only.
The next ground of appeal is that the trial judge erred in failing to consider that Ms West may have had an unknown motive to fabricate the evidence. This ground too must be dismissed in that it requires the judge to speculate as to the existence of some unknown and unidentified fact which may have caused Ms West to lie. The judge said that he did not think it a reasonable possibility that she had fabricated or rehearsed her story with Dempsey in order to assist Dempsey in his dispute with Haydon over $300. Nothing has been shown which demonstrates that the judge was wrong in reaching that conclusion.
Finally, the appellant complains that the verdict was unsafe or unsatisfactory for three reasons, namely, there was no motive proved for the appellant’s involvement in these assaults, Wiese’s description of his assailants did not fit the appellant, and there was considerable doubt as to the alleged confession. Neither of these three grounds, viewed individually or as a whole, warrant interfering with this verdict. Absence of proof of motive is not in itself fatal to a prosecution case. That is particularly so where, as here, the case against the accused depends upon a confession where the person or persons to whom the confession is made do not know of and are not told of a motive for the crime. In any event, the evidence of Dempsey suggested a motive in that the appellant disliked Wiese whom he regarded as a competitor in the distribution of amphetamines.
The complaint that the appellant did not match the description given by Wiese of his assailants turns on the fact that the appellant is taller than either of the people described by Wiese and that the appellant has a rather distinctive gait which was not noticed by Wiese. The appellant is about six feet tall. Wiese described his assailant as being about five feet nine inches or five feet ten inches. The difference in height is not of any moment. The trial judge referred to these facts in his reasons. He did not think that either was a sufficient reason to doubt the conclusion that the appellant was one of the assailants. There were good reasons for the judge to reach that conclusion. It must be remembered that this attack occurred when it was still dark. Wiese was no doubt frightened and confused by this attack by men masked with balaclavas. He had a momentary view of his attackers before running from the house. That view was of the two attackers with their backs to the street light. The trial judge was entitled to reach the view that neither of these discrepancies was of sufficient magnitude to doubt his conclusion. It is inaccurate to say there is considerable doubt as to the alleged confession. The evidence of Dempsey, and particularly the evidence of Ms West, unequivocally records the confession in terms which are very similar. The judge has accepted that evidence.
I have read the evidence. The verdict turned on the question whether the account given of the confession by Dempsey and Ms West, when considered with the other evidence, could be accepted and whether it was sufficient to prove beyond reasonable doubt that the appellant was one of the assailants. The evidence of both Dempsey and Ms West was clear. The account of the confession was similar but not identical. There are discrepancies but the trial judge carefully weighed the evidence. He was alert to the discrepancies which existed. It was open to him to accept the two accounts of this confession and to conclude, as he did, that the discrepancies were the result of innocent inaccuracies. The judge has explained why he accepted the evidence of Ms West. His reasons show that there was no reason why West should concoct the story and that the discrepancies between her account of the confession and the account of the assault given by Wiese were of an innocent nature. The trial judge had the advantage of seeing and hearing the witnesses. I am satisfied the verdict was not unsafe and not unsatisfactory.
For all of these reasons, I would dismiss the appeal.

LANDER J. I have had the advantage of reading, in draft, the reasons of Debelle J.
I agree with his Honour’s conclusions except in relation to ground 1. On that ground I have the misfortune to disagree.
His Honour has set out the circumstances giving rise to the second trial. The appellant’s second trial commenced before Judge Bright on 28 October 1999 in respect of the two charges on the information of assault occasioning actual bodily harm.
The offence of assault occasioning actual bodily harm is, in the circumstances of this case, a minor indictable offence and because he had been committed to the District Court in respect of those offences and the further major indictable offence of shooting with intent to do grievous bodily harm, for which he had been acquitted he was entitled to be tried by a jury of 12 persons qualified and liable to serve as jurors; s 6 Juries Act (1927).
However there are circumstances where an accused person may be tried before the Supreme Court or the District Court on an indictable offence without a jury.
Section 7 of the Juries Act provides:
“7.(1)... Subject to this section, where, in a criminal inquest before the Supreme Court or the District Court -
(a)The accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b)the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,
the inquest will proceed without a jury.”
Subsection (4) of s 7 provides:
“(4).. Where a criminal inquest proceeds without a jury in pursuance of this section, the judge may make any decision that could have been made by a jury on the question of the guilt of the accused, and such decision will, for all purposes, have the same effect as the verdict of a jury.”
Rules have been made pursuant to s 89 of the Juries Act by the Chief Justice of the Supreme Court and the Chief Judge of the District Court.
Rule 8 provides that an accused person may make an election pursuant to s 7(1)(a) of the Juries Act but only in the manner and at the time stipulated in r 8 itself.
The relevant part of r 8 is r 8(5). That rule provides:-
“(5)... Except in the case of an accused person committed for a trial to a circuit sittings the election may be made
(a)by filing at the Registry of the Court of trial not later than the last day upon which the Registry is open for business prior to the day of the accused person’s first arraignment on the information in respect of which the trial is intended to be held, a notice in writing signed by the accused person making the election and a certificate complying with Rule 10;
(b)by the accused person or by counsel appearing for the accused person orally informing the Judge on the accused person’s first arraignment on the information in respect of which the trial is intended to be held of the accused person’s election and tendering to the Judge a certificate complying with Rule 10; or
(c)by filing a notice in writing signed by the accused person making the election and a certificate complying with Rule 10 within such time and in such manner as the Judge on the first arraignment of the accused person on the information in respect of which the trial is intended to be held shall direct.”
Whichever way the accused proceeds under r 8(5) the accused must also comply with r 10 and provide a certificate complying with that rule. That rule provides that a legal practitioner shall certify in writing, for the purposes of r 8 and r 9 (which is irrelevant in this appeal) that the practitioner has advised the accused person in all manners relevant to the accused person making the election.
Therefore the election can only be made if the accused person adopts one of the procedures in r 8(5) and at the same time provides the registrar, if the procedure in r 8(5)(a) is adopted, or the judge on the accused person’s first arraignment, if the procedure in r 8(5)(b) is adopted, or whoever should be advised in accordance with the direction given by the judge on the first arraignment, if the procedure in r 8(5)(c) is adopted, with a certificate signed by a legal practitioner under r 10.
An accused person cannot comply with r 8 without providing a certificate under r 10.
If an accused person does not comply with r 8 and, of course, with r 10 an accused person cannot elect to have a trial by judge alone unless the accused person obtains a dispensation with compliance with the requirements of r 8 or r 10 or both pursuant to r 16. That will only occur if a judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so; r 16.
If an accused person does comply with r 8 and r 10 and therefore elects to have a trial by judge alone the accused person is not permitted to withdraw the election without the leave of a judge and such leave will only be granted if the judge is satisfied that because of events which have occurred since the making of the election it would be unjust to refuse such leave: r 13.
The scheme of the rules is clear. There must be strict compliance with r 8 without which the accused person is not entitled to elect for trial by judge alone. If there are special reasons for doing so or it would be unjust not to do so a judge may dispense with that strict compliance: r 16.
If there has been compliance with r 8 then thereafter the accused person is bound by his or her election unless a judge is satisfied that because of events which have occurred since the making of the election it would be unjust to refuse such leave: r 13.
Effectively therefore an accused person is either locked out or locked in to his or her election once made.
Of course there are other circumstances which could become relevant after a person has either elected for trial by judge alone or not so elected. Three such circumstances are where there has been a mistrial or when the accused person has been tried but the jury has not been able to reach a verdict or the accused person has been tried and convicted but the conviction has been set aside on appeal.
The rules provide for such eventualities:-
“12... Notwithstanding the provisions of Rules 8 and 9 where there has been a mistrial or a jury has been unable to reach a verdict or an appeal against conviction has been allowed and the accused person or persons have been remanded for a new trial the accused person or persons may make the election in the way set out in Rules 8 and 9 within 14 days of being remanded for a further trial.”
In my opinion that rule allows a person who has not previously elected for trial by judge alone to make such an election in circumstances where in his or her first trial there has been a mistrial or where the jury has been unable to reach a verdict or where there has been an appeal against conviction which has been allowed. It gives the class of accused persons referred to in r 12 a further opportunity to elect for trial by judge alone on their retrial.
The rule does not mean, in my opinion, that if there has been a mistrial or the jury has been unable to reach a verdict or an appeal against conviction has been allowed that an election for trial by judge alone previously made lapses. An election for trial by judge alone, once made, remains, in my opinion, unless the accused person is permitted to withdraw the election pursuant to r 13.
In the circumstances of this case therefore the election which had been made prior to the first trial remained extant at the time of the second trial before Judge Bright.
To that extent I agree with Debelle J that the appellant, in this case, had made an election pursuant to s 7 by which he was bound at the time of his second trial before Judge Bright.
However an accused person is not entitled to have a trial by judge alone or, more correctly, without a jury unless both limbs of s 7 of the Juries Act are satisfied.
Compliance with the Juries Rules and in particular r 8 and r 10 will mean compliance with s 7(1)(a) but the section also requires the Court to be satisfied of the matters in s 7(1)(b) before the criminal inquest can be heard without a jury.
It was put in this case that because elections are made in accordance with the Rules of Court ordinarily it will be the Judge at the first arraignment who will determine whether the accused is to be tried with or without a jury. I do not agree. The Judge on the accused’s persons first arraignment will be informed of the accused’s election and may give directions in accordance with r 8(5)(c) but it is the presiding judge who must be satisfied of the matters in s 7.
In my opinion if a criminal inquest is to proceed without a jury there must be strict compliance with s 7. That means that the presiding Judge for that criminal inquest must be satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner. That judge cannot transfer his or her responsibility to some other judge who is not the presiding judge.
The presiding judge, in my opinion, means the judge at trial. Sections 68 and 69 of the Juries Act also refer to a presiding judge. The presiding judge in both of those sections clearly must be the trial judge. It is the responsibility of the presiding judge to ensure that an accused person has a fair trial. It is therefore the responsibility of the presiding judge, that is the trial judge, to ensure that the accused has elected in accordance with the Rules of Court and that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner.
The legislation does refer to “the judge” in s 7(4) but s 7(4) only operates where the criminal inquest proceeds before a judge. In those circumstances it is unnecessary to talk of a presiding judge because the judge in s 7(4) must be the trial judge.
In my opinion therefore before a trial can proceed before judge alone both limbs of s 7(1) must be satisfied. In particular if an election is made by an accused person in accordance with the Rules of Court the presiding judge must then satisfy himself or herself that before making the election the accused person sought and received advice from a legal practitioner in relation to that election.

In this case it is clear from the report given by the presiding judge that he did not satisfy himself of the matters in s 7(1)(b). He assumed that the trial judge, on the accused’s first trial, had done so. I think the second trial judge could have, in a practical sense, assumed that the first trial judge did satisfy himself of the matter in s 7(1)(b) but that did not relieve him of the obligation to be satisfied for himself.
I therefore believe that s 7(1)(b) of the Juries Act was not complied with. That ground of appeal has been made out.
Whilst I think that ground has been made out, in my opinion, I do not believe that there has been any miscarriage of justice.
Clearly there will be circumstances where, if a judge fails to satisfy himself or herself of the matters in s 7(1)(b), a miscarriage of justice could occur. This is not one of those cases. There is no suggestion that in fact the accused had not, before making the election, sought and received advice in relation to the election from a legal practitioner. There is no suggestion that the accused has suffered any disadvantage by reason of the failure of the judge to satisfy himself under s 7(1)(b) and, in my opinion, there has been no miscarriage of justice.
This ground of appeal is very much an after thought. Indeed it was not a matter upon which leave was originally given but it is a matter which occurred to counsel who was later briefed in the matter.
If I am wrong about that then I believe that this would be a case for the application of the proviso in s 353 because this is a procedural detail which could not have affected the verdict: R v Standley (1996) 189 LSJS 233.
In all other respects I agree with the decision of Debelle J.
In my opinion the appeal should be dismissed.
NYLAND J. I have had the advantage of reading the draft reasons of both Debelle J and Lander J. I agree with Lander J that before a trial can proceed before a judge alone, both limbs of s 7(1) of the Juries Act 1927 must be satisfied. It is therefore incumbent upon the judge presiding at the trial to satisfy himself/herself in accordance with the provisions of s 7(1)(b). That did not occur in this case. For the reasons expressed by Lander J, I consider that ground of appeal has been made out.
I further agree, however, that in the circumstances of this case, there has been no miscarriage of justice and it is therefore a suitable case for the application of the provision in s 353 of the Criminal Law Consolidation Act 1935. In all other respects, I agree with the decision of Debelle J. In my opinion the appeal should be dismissed.

[2000] SASC 125

16 May 2000