Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Hutchison, Wilkinson & Greentree [2018] NSWSC 1513 Hearing dates: 6 August 2018 Date of orders: 06 August 2018 Decision date: 16 November 2018 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: (1) Leave is granted pursuant to s 132A of the Criminal Procedure Act 1986 (NSW).
(2) Order that the accused are to be tried by Judge alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW).Catchwords: CRIMINAL LAW – trial by Judge alone – application brought late – whether leave should be granted – where one of three accused did not make election until week before trial due to commence – explanation for late application – where prosecution consent to a trial by Judge alone – operation of statute – stuck with it – application granted Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 132 and 132A Category: Procedural and other rulings Parties: Regina
Raquel Hutchison
Paul Wilkinson
Daniel GreentreeRepresentation: Counsel:
Solicitors:
M Cunneen SC (Crown)
B Rigg SC & S Beckett (Hutchison)
M Ainsworth (Wilkinson)
I Todd (Greentree)
Director of Public Prosecutions NSW (Crown)
Blair Criminal Lawyers (Hutchison)
McGirr Lawyers (Wilkinson)
Tully & Chiper Lawyers (Greentree)
File Number(s): 2014/00308895 (Hutchison)2014/00308929 (Wilkinson)2014/00319883 (Greentree) Publication restriction: An interim non-publication order is made over the deceased’s surname which applies to both the deceased and some of the witnesses.
Ex tempore Judgment (revised)
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HIS HONOUR: Each of the accused, being Raquel Hutchison, Paul Wilkinson and Daniel Greentree, seek an order under s 132 of the Criminal Procedure Act 1986 (NSW) for a “trial by Judge order”.
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On its face, the applications are made very late, and well outside the time limits generally applying to such applications. However, in each case there is an explanation. The explanation lies in the fact that, until quite recently, Mr Wilkinson indicated that he did not consent to, let alone make application for, a Judge alone trial. The terms of s 132A(2) is such that no order for a Judge alone trial can be made unless all of the accused in a joint trial make an application.
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Accordingly, while both Ms Hutchison and Mr Greentree indicated an election for a Judge alone trial and had notified the Crown of that fact, none of the accused had filed any documentation with the Court. Any such application was destined to fail unless Mr Wilkinson changed his attitude to the application, and actively sought a Judge alone trial, or if his proceedings were separated. There was some indication in the past that applications for separate trials would be made although not necessarily by, or in relation to, Mr Wilkinson. Accordingly, both Ms Hutchison and Mr Greentree have valid reasons for not bringing their application
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As recently as last week, Mr Wilkinson indicated for the first time that he would seek an order under s 132, having received the advice of his new counsel, Mr Ainsworth. As a result, directions were made for the…
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- Case
- [2018] NSWSC 1513
- Decision Date
CaseChat Overview and Summary
The court considered the operation of the relevant statute, which provides that leave must be obtained for a trial to be conducted by a judge alone. The defendants argued that the late application should be excused due to the circumstances that led to the delay. The prosecution did not oppose the application, but the court had to consider the public interest in maintaining the integrity of the legal process. The court noted that while the defendants had provided an explanation for the delay, they had still not made the election until the last possible moment. The court had to balance the defendants' right to a trial by judge alone with the need to ensure that the legal process was not unduly delayed or disrupted.
The court granted the application for the trial to proceed by judge alone, despite the late application. The court found that the explanation provided by the defendants for the delay was credible and that the prosecution did not oppose the application. The court noted that the defendants had not intentionally delayed the process and that granting the application would not cause any significant disruption to the trial. The court concluded that the public interest in maintaining the integrity of the legal process was not compromised by granting the application, and that the defendants' right to a trial by judge alone should be respected.
The court ordered that the trial of the defendants be conducted by a judge alone, despite the late application. The court found that the explanation provided by the defendants for the delay was sufficient to justify the late application and that the prosecution did not oppose the application. The court noted that the defendants had not intentionally delayed the process and that granting the application would not cause any significant disruption to the trial. The court concluded that the public interest in maintaining the integrity of the legal process was not compromised by granting the application, and that the defendants' right to a trial by judge alone should be respected.
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