R v Mackie (No 2) - [2018] NSWSC 1654

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 4
Category: Procedural and other rulings
Parties: Regina (Crown)
Rosemary Priscilla Mackie (Accused)
Representation:
Counsel:
K Ratcliffe (Crown)
M Avenell (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2015/353540
Publication restriction: Nil

Judgment

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

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.
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.
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

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…

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 Mackie (No 2)

Details

AGLC: R v Mackie (No 2) [2018] NSWSC 1654
Case: [2018] NSWSC 1654
Decision Date: 31 October 2018

CaseChat Overview and Summary

The case of R v Mackie (No 2) involved the respondent, Mackie, who was facing a criminal charge. The nature of the dispute was whether the trial should proceed with a judge alone or a jury, given that a previous jury had failed to reach a verdict. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether it was in the interests of justice to have a trial by a judge alone, rather than a jury, after the previous jury had been discharged without reaching a verdict. The court had to consider the relevant statutory provisions, which allow for a trial by a judge alone in such circumstances, and weigh the considerations of fairness and justice in the context of the case.

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