R v Johnson

[2019] NSWSC 118

Supreme Court

New South Wales

Medium Neutral Citation:	R v Johnson [2019] NSWSC 118
Hearing dates:	6 February 2019
Date of orders:	06 February 2019
Decision date:	06 February 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Under s 132A of the Criminal Procedure Act 1986, grant the accused leave to apply out of time for trial by judge alone; (2) Under s 132 of the said Act, the accused be tried for murder commencing today, 6 February 2019, by judge alone without a jury.
Catchwords:	JUDGE ALONE TRIAL – s 132 Criminal Procedure Act, orders for trial by judge alone – court must make a trial by Judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 132
Category:	Procedural and other rulings
Parties:	Regina (Crown) Douglas Johnson (Accused)
Representation:	Counsel: G.J. Tabuteau (Crown)     E. Ozen SC (Accused)     Solicitors: Office of the Director of Public Prosecutions (Crown) Ross Hill & Associates (Accused)
File Number(s):	2017/195278

Judgment

1. Mr Johnson has been arraigned on an indictment charging that on 29 June 2017 he murdered David Morrison at Campsie in New South Wales. The parties have filed in Court an election under s 132 of the Criminal Procedure Act1986 (NSW) whereby Mr Johnson elects to be tried by a judge alone. He acknowledges, as is required by the section, that before making the election, he has sought and received the advice of his counsel, Mr Ozen SC, in relation to the matter. The learned Crown Prosecutor has endorsed his consent on the election on 30 January 2019.

2. Under the provisions of s 132A of the Criminal Procedure Act the Court's leave is required in respect of the application, because the formal application, if I may put it that way, has been made less than 28 days before the date fixed for trial.

3. I propose to grant leave. First, although no motion was filed, Mr Ozen indicated that this application had been notified to the Crown when the matter was before me for directions on 23 November 2013, more than two months ago; and secondly, the Crown Prosecutor has indicated his consent to the application being made out of time. In those circumstances I grant leave for the application to be made formally in open court today.

4. Because the Crown consents to the substantive application, that is for trial by judge alone, the Court has no discretion in the matter and I am bound by law under s 132(2) of the said Act to grant the application. That section provides that the Court must make a trial by judge order, if the accused and the prosecutor agree to trial by judge alone.

5. For these reasons I make the following order:

On the application of the accused by, and with the consent of Mr Tabuteau, Crown Prosecutor on behalf of Her Majesty the Queen, and upon reading the election that the accused has sought and received legal advice as required, I order:

1. Under s 132A of the Criminal Procedure Act 1986, grant the accused leave to apply out of time for trial by judge alone;

2. Under s 132 of the said Act, the accused be tried for murder commencing today, 6 February 2019, by judge alone without a jury.

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Decision last updated: 22 February 2019