R v King

Case [2013] NSWSC 448 4 April 2013

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Sean Lee King [2013] NSWSC 448
Hearing dates: 2 April 2013
Decision date: 04 April 2013
Before: Bellew J
Decision:
1.I grant leave to the accused, pursuant to s. 132A of the Criminal Procedure Act 1986, to make application, pursuant to s. 132 of that Act, for an order that he be tried by judge alone.
2.I dismiss the notice of motion filed by the accused on 19 March 2013.

Catchwords: CRIMINAL LAW - murder - application for a trial before a judge alone - whether in the interests of justice to grant the order sought - whether issue of intention was one which required the application of community standards - whether the nature and extent of pre-trial publicity was such as to render it in the interests of justice that order be granted for a trial by judge alone - whether potential saving to the community is a relevant factor - where appropriate directions will be given to the jury - where it is assumed that such directions will be applied - application for judge alone trial dismissed
Legislation Cited: Criminal Procedure Act (NSW) 1986
Criminal Procedure Act (WA) 2004
Jury Act (NSW) 1977
Supreme Court Act 1970
Cases Cited: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Chapman v Gentle (1986) 28 A Crim R 29
Gilbert v R (2000) 201 CLR 414 at [31]
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R
R v Booth; R v Box [1964] 1 QB 430
R v Burrell [2004] NSWCCA 336
R v D'Arcy (2003) 140 A Crim R 303
R v Dudko (2002) 132 A Crim R 371
R v Glennon (1992) 173 CLR 592
R v Hood [1968] 1 WLR 773; [1968] 2 All ER 56
R v Jamal (2008) 72 NSWLR 258; (2008) 191 A Crim R 1
R v K (2003) 59 NSWLR 431
Texts Cited:
"The internet and the right to a fair trial" (Spigelman CJ) (2005) 29 Crim LJ 331
"Some simple thoughts on intention" (Buxton) [1988] Criminal Law Review 484
Category: Principal judgment
Parties: Regina - Crown
Sean Lee King - Accused
Representation: Ms K Shead - Crown
Mr J Stratton SC - Accused
S Kavanagh Solicitor for Public Prosecutions - Crown
Gregory Goold Solicitor - Accused

File Number(s): 2011/230096

Judgment

INTRODUCTION

An indictment has been presented against Sean Lee King ("the accused") alleging that on 10 July 2011 he did murder Jazmin-Jean Ajbschitz ("the deceased"). At the time of his arraignment on 5 October 2012 the accused pleaded not guilty to the charge of murder but guilty to the charge of manslaughter. That plea was not accepted by the Crown in satisfaction of the indictment.

The accused's trial is listed commence before me on 8 April 2013.

By notice of motion filed on 19 March 2013 the accused has made application…

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 King

Details

AGLC: R v King [2013] NSWSC 448
Case: [2013] NSWSC 448
Decision Date: 04 April 2013

CaseChat Overview and Summary

The case of R v King was heard in an Australian court where the defendant, King, faced a charge of murder. The primary dispute was whether King's trial should proceed before a judge alone, rather than a jury, due to concerns about the potential influence of pre-trial publicity on the fairness of a jury trial. The legal issue before the court was whether it was in the interests of justice to grant the application for a trial by judge alone. This required the court to consider whether the issue of intention, a critical element in a murder charge, necessitated the application of community standards to a jury's decision-making process. Furthermore, the court had to assess the nature and extent of the pre-trial publicity to determine if it could render a jury trial unfair.

The court considered the severity of the charge and the potential for pre-trial publicity to impact the fairness of a jury trial. It was noted that the application for a judge alone trial was not a matter of right but rather a discretion exercised by the court based on the circumstances of the case. The court recognised that the potential saving to the community was not a factor to be considered in this context. It was held that appropriate directions could be given to the jury to ensure that they properly applied the law, and it was assumed that such directions would be followed. Given these considerations, the court concluded that it was not necessary to grant the application for a trial by judge alone.

Consequently, the application for a trial before a judge alone was dismissed. The court determined that the concerns about pre-trial publicity, while valid, did not outweigh the presumption in favour of a jury trial. The judge's directions to the jury were deemed sufficient to manage any potential bias or prejudice arising from the publicity. As such, the trial proceeded with a jury, ensuring that King's right to be tried by his peers was upheld, subject to the court's instructions on the application of legal principles.

Orders