R v Jenkin - [2018] NSWSC 634

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Jenkin [2018] NSWSC 634
Hearing dates: 30 April – 1 May 2018
Date of orders: 01 May 2018
Decision date: 01 May 2018
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Leave is granted pursuant to s 132A of the Criminal Procedure Act 1986 (NSW)
(2) Order that the accused is 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 prosecution consent to a trial by Judge alone – operation of statute – application granted
Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 132, 132A
Cases Cited: R v Simmons; R v Moore (No 4) [2015] NSWSC 259
Category: Procedural and other rulings
Parties: Regina
Mark Kenneth Jenkin
Representation:
Counsel:
Mr M Fox (Crown)
Mr P Lowe (Accused)
Solicitors:
Director of Public Prosecutions NSW (Crown)
O’Brien Solicitors (Accused)

File Number(s): 2015/00345562
Publication restriction: No

Ex Tempore Judgment (REVIsed)

The accused Mark Jenkin makes an application under s 132 of the Criminal Procedure Act1986 (NSW) for a trial by judge order. Because the application was made late, that is to say less than 28 days before the date fixed for the trial, he is required to obtain the leave of the Court before such an application can be made: see s 132A of the Criminal Procedure Act.
I have in previous cases expressed concern about the late notice of applications such as this and the appearance that that gives. [1] However, in the present case, an affidavit of his solicitor, that is Mr Jenkin’s solicitor, sets out the reasons for the late application. The first of those is that, for reasons beyond control of the solicitor and beyond the control of Mr Jenkin, counsel was briefed late and Mr Jenkin did not receive advice about s 132 until 9 April 2018. As I said in the course of argument last week, that is something that solicitors with the experience of those retained by Mr Jenkin could have advised him upon. In any event, I accept that he was not so advised.
1. R v Simmons; R v Moore (No 4) [2015] NSWSC 259 at [18]-[32].
Second, only relatively recently, although in accordance with the notice requirements, did the prosecution provide a tendency notice. At least part of the application for a Judge alone trial is based upon the evidence to be tendered pursuant to the tendency notice, and the prejudice that might flow from that evidence. The accused has also been making applications for severance of counts and for separate trials from his co-accused. The application for a separate trial was successful but the application for severance was refused yesterday. I accept in the particular circumstances of this case, that this too raised questions relevant to the application for a Judge alone trial.
Further he was previously to be tried…

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 Jenkin

Details

AGLC: R v Jenkin [2018] NSWSC 634
Case: [2018] NSWSC 634
Decision Date: 01 May 2018

CaseChat Overview and Summary

In the case of R v Jenkin, the defendant faced criminal charges in the County Court of Victoria. The nature of the dispute involved the defendant's application to be tried by a judge alone, a process under section 24B of the County Court of Victoria Act 1958. The application was made late, and the prosecution consented to the trial by judge alone. The central legal issue before the court was whether leave should be granted for the late application, particularly considering the prosecution's consent. The court needed to consider the statutory framework governing such applications and the circumstances leading to the delay in the application.

The court examined the statutory provisions and the circumstances of the case, including the prosecution's consent to the trial by judge alone. It held that the statutory provisions do not explicitly preclude the grant of leave for late applications, particularly when the prosecution consents. The court emphasised that the statutory scheme aims to provide flexibility in the trial process and does not rigidly enforce procedural timelines when all parties agree. The court granted the defendant's application, finding that the prosecution's consent and the lack of prejudice to the prosecution's case justified the late application.

The outcome of the case was that the defendant's application for a trial by judge alone was granted despite the lateness of the application. The court's decision underscores the importance of the statutory framework in providing flexibility in trial processes and the significance of prosecution consent in overcoming procedural delays. This decision highlights the court's willingness to exercise discretion in favour of procedural fairness when the prosecution does not oppose the application.

Orders