R v IP

Case [2023] NSWSC 1336 31 October 2023

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v IP [2023] NSWSC 1336
Hearing dates: 31 October 2023
Decision date: 31 October 2023
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1) Leave is granted to the accused to bring his application for trial by judge alone.
(2) The application is refused.

Catchwords:
CRIMINAL LAW – trial proceedings – murder –application for trial by judge alone – doli incapax – where accused and deceased are children – violent death of a child – potential prejudice to the accused – question of complexity of expert evidence – psychiatric diagnoses – application of community standards – importance of community participation – appearance of “judge shopping” – leave granted – application refused

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act1986 (NSW)

Cases Cited:
AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8
Fittock v R [2003] 217 CLR 508; [2003] HCA 19
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Long v R [2002] QSC 54; (2002) 128 A Crim R 11
R v Belghar [2012] NSWCCA 86
R v Burrell [2009] NSWCCA 193
R v D’Arcy [2003] QCA 124; (2003) 140 A Crim R 303
R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371
R v Jamal [2008] NSWCCA 177; (2008) 191 A Crim R 1
R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318
RP v The Queen (2016) 259 CLR 641; [2016] HCA 53

Texts Cited:
H Dhanji SC, J Roy and S McLaughlin, “Proving the criminal responsibility of children: RP v The Queen” (Children’s Court of NSW Resource Handbook, Judicial Commission of NSW, last reviewed May 2023)
Lord Devlin, Trial by Jury, (rev ed) (1966)

Category: Procedural rulings
Parties: Rex (Crown)
IP (Accused)
Representation:
Counsel:
C Curtis with D Boyle (Crown)
P Krisenthal (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):
Ramsland Laidler Solicitors (Accused)
2022/00009349
Publication restriction: Previously restricted to the parties pending verdict or other order of the Court

EX TEMPORE JUDGMENT

HER HONOUR: The accused is due to stand trial before this Court on 7 November 2023, having been arraigned on 10 February 2023 upon an indictment charging him with murder, an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).
Both the accused and the deceased were children of 13 years at the date of the fatal event, 11 January 2022, and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) applies to each, although under different subsections. Neither can be identified. To avoid the use of what I regard as the dehumanising terminology of "the deceased", which names a child by reference to his death, in this judgment I will refer to the boy who died on 11 January 2022 by the pseudonym “Ben”.
The accused's trial was originally listed to…

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 IP

Details

AGLC: R v IP [2023] NSWSC 1336
Case: [2023] NSWSC 1336
Decision Date: 31 October 2023

CaseChat Overview and Summary

The case of R v IP involved a tragic incident where a child, the accused, was charged with the murder of another child. The accused's legal representatives sought a trial by a judge alone, arguing that the complexity of the evidence and the potential prejudice against the accused warranted such a trial. The matter was heard in the court, which had to determine whether the trial should proceed with a judge alone or a jury. The central legal issues before the court were the applicability of the doli incapax doctrine, the potential prejudice to the accused due to the violent nature of the crime and the age of the parties involved, and the complexity of the expert evidence, particularly psychiatric diagnoses, and its impact on the community's perception of the trial.

The court considered the principles of doli incapax, which generally precludes children under a certain age from being found guilty of serious crimes. It also weighed the potential prejudice that might arise from a jury trial, given the violent nature of the crime and the ages of the accused and the deceased. Additionally, the court examined the nature and complexity of the expert evidence, particularly psychiatric diagnoses, and its potential impact on the community's perception of the trial. The court acknowledged the importance of community participation in the justice system but also recognised the potential for appearances of "judge shopping" when such applications are made. After thorough consideration, the court found that the application for a trial by judge alone did not meet the necessary threshold, and thus, the application was refused.

The court's decision was grounded in the need to balance the rights of the accused with the importance of community participation in the justice system. While recognising the potential prejudice and the complexity of the evidence, the court determined that these factors did not sufficiently warrant a trial by judge alone. The refusal of the application was also influenced by the need to avoid the appearance of "judge shopping" and to uphold the principles of public accountability in the judicial process. The court's decision underscored the importance of maintaining the integrity of the justice system and ensuring that all parties receive a fair trial, regardless of the complexities involved.

The final orders of the court were to deny the application for a trial by judge alone. The case was to proceed with a jury trial, ensuring that the accused received due process and that the community's role in the justice system was upheld. This decision reflected the court's commitment to balancing the rights of the accused with the broader societal interests in the administration of justice.

Orders