R v McParland; R v Wingate
[2011] NSWDC 264
•18 July 2011
District Court
New South Wales
Case Title: R v McParland; R v Wingate Medium Neutral Citation: [2011] NSWDC 264 Decision Date: 18 July 2011 Before: Cogswell SC DCJ Decision: Applications for trials by a judge alone refused.
Catchwords: CRIMINAL LAW - Procedure - applications for trials by judge alone - case not involving a factual issue that requires the application of objective community standards - but nevertheless a question for a jury to decide with clear directions - not in the interests of justice to make order. Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 132, 132A. Category: Principal judgment Parties: Regina (Crown)
Troy McParland (Accused)
Luke Wingate (Accused)Representation - Counsel: Counsel:
F M Sullivan (Crown)
N E Keay (Accused - McParland)
J E Healey (Accused - Wingate)File Number(s): DC 2010/388494 (McParland)
DC 2010/394917 (Wingate)
JUDGMENT
Troy McParland and Luke Wingate have been charged with aggravated break and enter commit serious indictable offence in company. The case against them is largely circumstantial. They have been listed for trial before me and a jury today.
Ms J E Healey of counsel and Ms N E Keay who appear respectively for Mr Wingate and Mr McParland have applied for a trial by judge order. Effectively that means that the trial would be heard before me without a jury. The application is made under s 132 of the Criminal Procedure Act 1986 (NSW). That section says that I "may make a trial by judge order" if I consider "it is in the interests of justice to do so".
Ms Healey and Ms Keay rely on the fact that each of their respective clients gave a record of interview to the police after they were arrested. They gave what are described as inconsistent accounts of where they had been and why they were in the car. They had been detected at about 3.00am near the site of a break and enter. Both point out, which of course is correct law, that the admissions made by their respective clients are admissible only against that client and not against the other accused. There is a real risk, both of them say, that the jury may impermissibly take into account the fact of the inconsistencies in the explanations which each of them has given.
A second argument by Ms Healey specifically is that the case against her client is weaker than the case against Mr McParland because Mr McParland had a greater knowledge of the alleged victim of the break and enter than Mr Wingate did.
Both Ms Healey and Ms Keay argue that this is not a case which is provided for by s 132(5) which would "involve a factual issue that requires the application of objective community standards".
Ms F M Sullivan who appears for the Crown agrees that the case does not appear to fall into the kinds of categories which that provision envisages. Ms Healey argues that it is apparent from Mr Wingate's record of interview that he is intoxicated but that is not conceded by Ms Sullivan. Mr Wingate also, Ms Healey argues, gives what she describes as an implausible account. Specifically Mr Wingate gave some answers in his record of interview which explain why he was nervous and perspiring when he was arrested. The answers involve him pointing out that he was trying to bring his life together after committing offences and being on a suspended sentence. There were also some gloves found which he said he used on work which he was doing under, by the sounds of it, a community service order.
Ms Sullivan did not oppose the leave which is required for me to make such an order because it has not been made within the time specified by s 132A of the Criminal Procedure Act. However, she argues that any potential prejudice to other accused can be overcome by careful directions from me about what evidence the jury may take into account against the respective accused and what they may not take into account. She points out that both men had a common explanation as to why they were where they were when the police stopped them. She pointed out that the gloves can be explained by the work that Mr McParland was doing without referring to the community service order and that the nervousness or rather the explanation given by Mr McParland about his suspended sentence does not really prejudice him because in fact he was being pulled up by the police at 3.00am in the morning.
This is a discretionary decision by me. Juries, the higher courts say, are able to make distinctions between what evidence is admissible against respective accused. The assumption on which the justice system operates is in fact that they comply with directions. I think that any potential prejudice would be overcome by clear directions from me about what evidence may be admissible against a respective accused and what is not.
Although the case may not involve what the statute describes as "a factual issue that requires the application of objective community standards" it very much involves a question of why two men may be at a particular place in the early hours of the morning and the weighing up of their respective explanations against the circumstantial case presented by the Crown with the clear directions about what may or may not be taken into account. On balance I propose to refuse the applications.
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