R v Markou

[2011] NSWDC 25

District Court

New South Wales

Medium Neutral Citation:	R v MARKOU [2011] NSWDC 25
Hearing dates:	18 March 2011
Decision date:	18 March 2011
Before:	Berman SC DCJ
Decision:	Application granted
Catchwords:	CRIMINAL LAW - Application for trial by Judge alone - relevance of circumstance that judge gives reasons - flexibility and efficiency of trial by judge alone.
Legislation Cited:	Criminal Procedure Act
Cases Cited:	TVM v Western Australia [2007] WASC 299
Category:	Procedural and other rulings
Parties:	The Crown Blake Kevin Markou
Representation:	C Steirn SC - Applicant P McGrath - Respondent Elliot Lawyers - Applicant Director of Public Prosecutions - Respondent
File Number(s):	DC 2010/00099187

Judgment

1. HIS HONOUR: I have before me an application for trial by judge alone made by the accused. If the Crown had consented, then the Court must make an order that the trial be held by judge alone, but because the Crown does not consent, I may make an order that the trial be held before a judge alone, if I consider it is in the interests of justice to do so. I consider that that test has been met.

1. I note that there is some guidance, concerning the term 'interests of justice' in s 132(5) Criminal Procedure Act. I do not understand the Crown to suggest that objective community standards are to be applied in the present case. It is with that in mind that I look at the trial, which is to be held next Monday.

1. The accused is alleged to have assaulted Matthew Cunneen Wyllie, thereby occasioning to him various bodily harm. There is no dispute that the accused is seen on a closed circuit television camera punching Mr Wyllie. There is no dispute that Mr Wyllie suffered grievous bodily harm, but what is in dispute is whether it was the accused's punch which caused the grievous bodily harm that Mr Wyllie suffered, because the CCTV footage also reveals another person punching Mr Wyllie.

1. The issue to be run at trial is thus very limited. Identity is not in dispute. The fact that the accused punched Mr Wyllie is not in dispute. All that is in dispute is whether the Crown is able to prove beyond reasonable doubt that the punch thrown by the accused caused grievous bodily harm to Mr Wyllie. The accused intends to call evidence at trial from a Dr Thomas Gibson. For the purposes of this application I have been provided with a report of Dr Gibson. The applicant says that the evidence of Dr Gibson, which of course is in favour of the accused, is of a technical nature that would be more easily resolved by a judge than a jury. The Crown for its part says two things. Firstly, that it is not terribly technical in the first place, but secondly the evidence of Dr Gibson in its present form would not be admissible. I do not need to finally resolve the second of those aspects but I must say that there is a…