R v McCloskey (No 2) - [2020] NSWSC 786

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v McCloskey (No 2) [2020] NSWSC 786
Hearing dates: 22 June 2020
Date of orders: 22 June 2020
Decision date: 24 June 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
Accused’s application for a judge alone trial granted pursuant to s 132A(1) of the Criminal Procedure Act 1986 (NSW)

Catchwords:
CRIMINAL PROCEDURE – trial - application for trial by judge alone pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) – where leave from court required as application made within 28 days of trial date – where prior application had been made before another judge and refused – whether in the interests of justice to be bound by earlier order – where circumstances arising out of current COVID-19 pandemic were not factors at the time of the first application – where trial previously vacated - where substantial risk that these circumstances could cause the trial to be vacated for a second time – where that risk unacceptable – order made for judge alone trial

Legislation Cited:
Criminal Appeal Act 1912 (NSW) s 5F
Criminal Procedure Act 1986 (NSW) ss 130A, 132A

Cases Cited:
Doney v The Queen (1990) 171 CLR 207
Hamalainen v R [2019] NSWCCA 276
R v McCloskey; R v Hamalainen (No 2) [2019] NSWSC 1176
R v McNeil [2015] NSWSC 357
R v Simmons; R v Moore (No 4) [2015] NSWSC 259
Redman v R [2015] NSWCCA 110

Texts Cited:
Nil

Category: Procedural and other rulings
Parties: Crown
Robert John Stewart McCloskey (Accused)
Representation:
Counsel:
S Hughes (Crown)
D McMahon (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Kapsis Solicitors (Accused)

File Number(s): 2017/354632

JUDGMENT

The accused applied by notice of motion dated 15 June 2020 that he be tried by a judge alone pursuant to s 132A(1) of the Criminal Procedure Act1986 (NSW). The applicant is charged with the murder of John Salafia on 23 June 2013. The trial is fixed to commence on 29 June 2020.
I heard the motion on 22 June 2020. At the conclusion of the argument I made an order that the accused be tried by judge alone. I said that I would provide my reasons at a later time. These are my reasons.
Section 132A of the Criminal Procedure Act requires that any such application must be made not less than 28 days before the date fixed for trial except with the leave of the Court. Although this application was made less than 28 days before 29 June, the matter had been foreshadowed by the accused on a number of occasions earlier this year. Indeed, when I called the matter up for directions on 31 March 2020 one of my principal purposes was to ascertain whether there was to be a judge alone trial in the circumstances of the COVID-19 pandemic and the difficulties of being able to conduct jury trials. On that occasion counsel for the accused said that he had instructions that…

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 McCloskey (No 2)

Details

AGLC: R v McCloskey (No 2) [2020] NSWSC 786
Case: [2020] NSWSC 786
Decision Date: 24 June 2020

CaseChat Overview and Summary

The case of R v McCloskey (No 2) involved the appellant, who had previously made an application for a trial by judge alone under section 132A of the Criminal Procedure Act 1986 (NSW). This application was made within the 28-day period before the scheduled trial date. The application had been refused by another judge and the trial had subsequently been vacated. The appellant's current application was made in light of the COVID-19 pandemic, which was not a factor at the time of the initial application. The court was required to determine whether it should be bound by the earlier refusal and whether it was in the interests of justice to order a trial by judge alone, given the risk that the pandemic could cause the trial to be vacated again.

The primary legal issue before the court was whether it should be constrained by the earlier refusal of the application for a judge alone trial, especially in light of the new circumstances arising from the COVID-19 pandemic. The court had to balance the principle of finality of judicial decisions against the potential risks to the administration of justice posed by the pandemic. The court also considered whether the substantial risk of the trial being vacated again due to the pandemic warranted a departure from the earlier decision.

The court found that it was appropriate to depart from the earlier order and grant the application for a judge alone trial. It held that the interests of justice required a flexible approach to the administration of justice in light of the COVID-19 pandemic. The court emphasised the importance of avoiding the risk of the trial being vacated for a second time, which it found to be unacceptable. Consequently, the court ordered that the trial proceed by a judge alone, recognising the exceptional circumstances presented by the pandemic. This decision underscored the court's willingness to adapt legal processes to protect the integrity of the judicial system during a public health crisis.

The court made an order for the trial to proceed by a judge alone, recognising the exceptional circumstances presented by the COVID-19 pandemic and the substantial risk that the trial could be vacated again. This decision reflected a pragmatic approach to ensuring the continuity of justice during a period of significant public health challenges. The order was made with the intention of protecting both the rights of the accused and the public interest in the timely and fair administration of justice.

Orders