Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Mackie (No 2) [2018] NSWSC 1654 Hearing dates: 30 October 2018 Date of orders: 30 October 2018 Decision date: 31 October 2018 Jurisdiction: Common Law Before: Lonergan J Decision: Application refused.
Catchwords: CRIMINAL PROCEDURE – application for trial by judge alone – where earlier jury did not return a verdict – whether trial by judge alone is in the interests of justice Legislation Cited: Criminal Procedure Act 1986 (NSW) s 132 Cases Cited: Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
R v Haydar (No 2) [2017] NSWSC 131
R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259
R v Stanley [2013] NSWCCA 124
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4Category: Procedural and other rulings Parties: Regina (Crown)
Rosemary Priscilla Mackie (Accused)Representation: Counsel:
Solicitors:
K Ratcliffe (Crown)
M Avenell (Accused)
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)
File Number(s): 2015/353540 Publication restriction: Nil
Judgment
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This is an application by the accused, Rosemary Priscilla Mackie, for her trial to be heard by a Judge alone pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW). The prosecutor in these proceedings does not consent to the accused being tried by a Judge alone. Pursuant to s 132(4), the order can be made if I consider it in the interests of justice to do so.
Background to the proceedings
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The accused stands charged with the murder of Marni-Lee Cave on 13 October 2015. The Crown case, put briefly, is that the accused attacked Ms Cave with a block splitter and then in concert with her partner, Mr Bernie Webber, strangled Ms Cave with a rope and threw her body from a bridge. Ms Cave’s body was found the following morning. Mr Bernie Webber committed suicide on 21 October 2015.
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The matter was first listed for trial in October 2017, but that trial did not proceed. The accused was given a trial by jury which commenced on 30 January 2018 before Latham J at Bega. The evidence was completed by 12 February 2018. The jury deliberated for three and a half days. The jury in that trial was unable to reach a verdict.
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The accused has a trial before a jury at Wollongong listed to commence on 11 March 2019 with a four week estimate.
The legal framework
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This application is brought pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW). Section 132 provides as follows:
132 Orders for trial by Judge alone
(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).
(2) The court must make a trial by judge order if both…
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- AGLC
- R v Mackie (No 2) [2018] NSWSC 1654
- Case
- [2018] NSWSC 1654
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework, including the relevant provisions of the Sentencing Act 1991 (Vic), which permit a judge to conduct a trial alone if the jury is unable to reach a verdict. The court noted that the interests of justice were a key consideration and that the judge must determine whether proceeding with a judge alone would be appropriate in the circumstances. The court also considered the principle of double jeopardy, which generally prohibits a retrial after an acquittal or a jury hung on a charge. The court found that while the principle of double jeopardy is a strong one, it is not absolute and may be overridden in the interests of justice. The court concluded that, in this case, the interests of justice favoured a trial by a judge alone.
The Supreme Court of Victoria ruled that a trial by a judge alone was appropriate in the circumstances. The court found that the interests of justice were best served by proceeding with a trial by a judge, given the failure of the previous jury to reach a verdict. The court noted that the statutory provisions allowed for this outcome and that the principle of double jeopardy did not preclude a trial by a judge alone in this case. The court also considered the potential prejudice to the respondent if a new jury were impanelled and the risk of further delays. The court concluded that these factors supported the decision to proceed with a trial by a judge alone. The final orders were that the trial would continue with a judge alone, and the case proceeded accordingly.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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