R v Haydon - [2000] SASC 125

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…

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 Haydon

Details

AGLC: R v Haydon [2000] SASC 125
Case: [2000] SASC 125
Decision Date: 16 May 2000

CaseChat Overview and Summary

The appeal in R v Haydon was heard by Debelle, Nyland, and Lander JJ in the South Australian Court of Criminal Appeal. The appellant had been convicted by a judge alone of two counts of assault occasioning actual bodily harm and sought to appeal this conviction. The first ground of appeal was that the trial was a nullity due to the failure to make an election for trial by judge alone in accordance with the Juries Rules 1996. The second issue was whether the trial judge complied with the requirements of s 7 of the Juries Act 1927 before the trial commenced.

The court held that the election for trial by judge alone made by the appellant on the first trial remained operative for the second trial. It was not necessary to make a fresh election, as per the provisions of the Juries Rules. Additionally, the court found that the trial judge was not required to satisfy himself that the appellant had sought and received legal advice before making the election, as the appellant was bound by the earlier election. However, it was held that the trial judge should have satisfied himself of the matters prescribed by s 7(1) of the Juries Act before the trial commenced. Despite this, the court found that the failure to do so did not result in a miscarriage of justice in this case.

The appeal was ultimately dismissed, as the other grounds of appeal raised by the appellant did not warrant interference with the trial judge's verdict. The court found that the verdict was safe and satisfactory, and that the appellant's conviction for the two counts of assault occasioning actual bodily harm should stand.

Orders