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R v Jaghbir (No 2)

R v Jaghbir (No 2)

Case [2020] NSWSC 955 29 July 2020

Admissibility of Evidence

Res Judicata

COVID-19

Criminal Law

No judgment structure available for this case.

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jaghbir (No 2) [2020] NSWSC 955
Hearing dates: 16 July 2020
Date of orders: 16 July 2020
Decision date: 29 July 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
Accused’s application for a judge-alone trial granted pursuant to s 132A(1) of the Criminal Procedure Act 1986 (NSW)

Catchwords:
CRIMINAL PROCEDURE - trial - application for trial by judge alone pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) - where case relies on circumstantial evidence - where press has reported on circumstances and witnesses surrounding this trial – where directions to a jury would have ameliorated any prejudice which this material posed for the accused - where circumstances arising out of current COVID-19 pandemic - where trial has already experienced significant delay - where the risk of further delay is unacceptable - order made for judge alone trial

Legislation Cited:
COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 (NSW)
Crime Commission Act 2012 (NSW) s 45
Criminal Procedure Act 1986 (NSW) ss 132, 365
Supreme Court Act 1933 (ACT) s 68BA

Cases Cited:
Allen v R [2020] NSWCCA 173
Mickelberg v R (No 3) (1992) 8 WAR 236
R v Coleman [2020] ACTSC 97
R v UD (No 2) [2020] ACTSC 90
Regina v BD (No. 1) (Judge alone application) [2020] NSWDC 150

Texts Cited:
Nil

Category: Procedural and other rulings
Parties: Crown
Ahmed Jaghbir (Accused)
Representation:
Counsel:
P Barrett (Crown)
G James QC & E James (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Abbas Jacobs Lawyers (Accused)

File Number(s): 2017/337859

JUDGMENT

Ahmed Jaghbir is charged that between 2 and 10 March 2017 he procured and counselled unknown persons to commit a serious indictable offence, namely, murder Kemel Barakat on 10 March 2017.
The matter is fixed for trial before me to commence on 7 September 2020. The trial had previously been fixed on 12 July 2019 by Fullerton J in the Arraignments List for hearing before me on 16 March 2020. On 2 March 2020 it became necessary to vacate the trial. That was for a variety of reasons. First, on the previous weekend an article in the Sunday Telegraph reported on a person who was due to give evidence at the trial in a manner that was said to be prejudicial to the position of the accused. Secondly, the Crown made a very late application under s 45 of the Crime Commission Act 2012 (NSW) in respect of the examinations of two persons before the Crime Commission. Thirdly, the parties had agreed that there would need to be Basha enquiries in relation to four witnesses which were likely to take some three to four days out of the period set aside for the trial. Finally, senior counsel for the accused had serious health issues which might have impeded the uninterrupted conduct of the trial, especially in the light of the COVID19 pandemic.
The accused was granted leave at that…

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 Jaghbir (No 2)

Details

AGLC: R v Jaghbir (No 2) [2020] NSWSC 955
Case: [2020] NSWSC 955
Decision Date: 29 July 2020

CaseChat Overview and Summary

The case of R v Jaghbir (No 2) involved the respondent, Jaghbir, who applied for a trial by judge alone under section 132A of the Criminal Procedure Act 1986 (NSW). The application arose from a criminal trial where the case against Jaghbir was based on circumstantial evidence. The court was also mindful of the extensive press coverage surrounding the case and witnesses, which raised concerns about potential prejudice. Given the nature of the evidence and the pre-existing public interest, the court considered whether a jury trial could be conducted in a manner that would mitigate any prejudice against Jaghbir.

The legal issues before the court included whether the circumstances justified a trial by judge alone and whether the potential prejudice to Jaghbir from the press coverage and the delay caused by the COVID-19 pandemic warranted such a trial. The court had to weigh the right to a jury trial against the practical considerations of ensuring a fair trial and managing the risk of further delays.

The court determined that a trial by judge alone was appropriate in this case. It found that the extensive press coverage and the potential prejudice it could cause to Jaghbir, combined with the delays already experienced due to the COVID-19 pandemic, made a jury trial unfeasible. The court concluded that any prejudice arising from the press coverage could be sufficiently managed through appropriate directions to a jury, but the risk of further delay and the practical difficulties in conducting a jury trial under the current circumstances outweighed the right to a jury trial. Consequently, the application for a trial by judge alone was granted.

The final order of the court was that the trial of Jaghbir be conducted by a judge alone, acknowledging the unique circumstances of the case and the need to balance the rights of the accused with the practicalities of ensuring a timely and fair trial.

Orders