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)

1. 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”.

2. 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.

3. 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

4. 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 preparation and filing of relevant documents, and those documents were filed in compliance with those directions. Meanwhile, the prosecution considered its position, and late last week indicated to the parties and to my Associate that the Director of Public Prosecutions did indeed consent to a Judge alone trial.

5. Section 132A requires leave because of the timing of the Notice of Motion, but in the circumstances, as I have set them out, and in view of the consent of all parties, I am of the view that leave should be granted. I accept Mr Wilkinson’s explanation that his delay in making the election arose from a change of the advice he received. His new barrister is very experienced and indicated concern about prejudicial material that would be elicited in Ms Hutchison’s case but not necessarily admissible against Mr Wilkinson.

6. Accordingly I make an order under s 132A that leave is granted to allow the accused each to make an application under s 132.

7. Having done that, s 132(2) is in apparently mandatory terms in that it says the Court “must” make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by Judge alone. Sub-section (6) says that a Court “must not” make a trial by judge order unless satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. It is difficult to see how sub-ss (2) and (6) would fit together in case where the parties consent but the Court is not satisfied that each of the accused has received the advice required by sub-s (6). However, that issue need not be resolved here.

8. In relation to the requirement in sub-s (6) I have affidavit evidence indicating that each of the accused has received advice from well-qualified counsel. While the written material may not have complied strictly with the terms of sub-s (6), I have now received assurances from each counsel this morning, which I unquestionably accept, that that advice has included the effect of a s 132 order for a trial by Judge.

9. All of that means, and in particular the provision is sub-s (2) means, that I am stuck with it.

10. Accordingly the applications are granted, and I make an order under s 132 that each of the accused be tried by Judge alone.

11. The parties agree, at least implicitly, that this order alleviates the need to consider further the question of whether any or all of the accused should be tried separately.

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Amendments

20 November 2018 - Correction made to spelling of counsel's name on coversheet