R v Hutchison, Wilkinson and Greentree - [2018] NSWSC 1513

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 Greentree
Representation:
Counsel:
M Cunneen SC (Crown)
B Rigg SC & S Beckett (Hutchison)
M Ainsworth (Wilkinson)
I Todd (Greentree)
Solicitors:
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)

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”.
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.
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
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…

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.

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Details

Case: [2018] NSWSC 1513
Decision Date: 16 November 2018

CaseChat Overview and Summary

The matter before the court was an application by three defendants to have their trial conducted by a judge alone rather than by jury. The application was made late, with one of the accused not making the election until a week before the trial was due to commence. The prosecution consented to a trial by judge alone, but the defendants still needed to obtain leave from the court to proceed in this manner. The defendants sought to justify the delay in making the application by explaining that they had been unaware of the need to make the election until shortly before the trial was due to start. The court had to determine whether leave should be granted for the trial to proceed by judge alone, considering the late application and the explanation provided by the defendants.

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.

Orders