R v Meredith

[2024] NSWDC 244

District Court

New South Wales

Medium Neutral Citation:

R v Meredith [2024] NSWDC 244

Hearing dates:

21 June 2024

Decision date:

21 June 2024

Jurisdiction:

Criminal

Before:

Bennett ADCJ

Decision:

Judge Alone Application

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Category:

Procedural rulings

Parties:

Rex (Crown)
Timothy William Meredith (Accused)

Representation:

Counsel:
Crown Prosecutor Michelle Swift
Defence Counsel Linda McSpedden

File Number(s):

2022/00143438
2022/00280631

JUDGMENT

Introduction

1. Timothy William Meredith appears for trial upon an indictment reference 202205730_52.2 charged with 24 counts for offences of Indecent assault contrary to s 61M(2) Crimes Act 1900, observing a person engaged in a private act to obtain sexual arousal contrary to s 91J(3) Crimes Act 1900, sexual intercourse contrary to s 66C(1) and s 61J(1) Crimes Act 1900, assault contrary to s 61 Crimes Act 1900, sexual touching contrary to s. 66DB(a) Crimes Act 1900, assault with intent to have sexual intercourse contrary to s 66D Crimes Act 1900, attempted sexual touching contrary to s 66DB(a) in conjunction with s 344A(1) Crimes Act 1900, and sexual touching contrary to s 66DA(a) Crimes Act 1900.

2. All complainants were children at the specified times of the alleged offences except for one of them who might have been aged 18 years. All suffered limitations which as between them varied in their significance. The Crown case includes the direct evidence of the offence anticipated from the complainants, complaint evidence, and evidence of tendency for which the Crown contends relying upon each of the 24 counts on the indictment.

3. This is the second trial to be faced by the accused with the first commenced on 11 June 2024 before me and a jury. The first trial concluded on Monday 27 June 2024 when the jury returned with verdicts of guilty in respect of three counts, but not guilty of all remaining counts brought upon allegations by another complainant.

4. The accused’s second trial upon the charges summarised above was listed to commence on 8 July 2024 when a jury was to be empanelled. The estimated time for the trial before a judge sitting with a jury was five weeks. The early conclusion of the first trial meant that the proceedings for the second trial could commence within the three weeks estimated for the first trial, and thus initial steps were undertaken when the jury were deliberating on Friday 21 and Monday 24 June 2024.

Election for a Judge Alone Trial

5. On 18 June 2024 as the first trial was proceeding the accused’s counsel presented a form of election for the trial to proceed before a judge alone pursuant to s 132 of the Criminal Procedure Act 1986. This was signed by the accused and his counsel and countersigned by the Crown Prosecutor expressing the consent of the Director of Public Prosecutions to this course.

6. The opportunity for the trial to proceed in this fashion is provided in ss 132 and 132A Criminal Procedure Act 1986:

S 132

(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 the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

(3)    If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4)    If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5)    Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(6)    The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

(7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that—

(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and

(b)  the risk of those acts occurring may not reasonably be mitigated by other means.

132A   

(1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.

(2)    An application must not be made in a joint trial unless—

(a)  all other accused person apply to be tried by a Judge alone, and

(b)  each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial.

(3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person’s trial, subsequently apply for a trial by a jury.

(4) Rules of court may be made with respect to applications under section 132 or this section.

7. Both parties sought leave to apply for a trial by Judge Alone notwithstanding that it could commence as such on 21 June 2024, clearly within the 28-day period specified in s 132A(1) Criminal Procedure Act 1986. There was no good reason for refusing leave to make this application within this period in the circumstances. There could be no suggestion of impropriety on the part of any of the parties in making this application at the time it was presented. The reasons for the application included that the complainants were by reason of their age and limitations vulnerable persons and might be expected to generate in a jury a measure of sympathy inappropriately and at the expense of the accused and his right to have a fair trial according to law. The Crown intended to advance tendency evidence drawing upon the array of charges brought in respect of six vulnerable complainants, two of whom are the subject challenges as not competent to give evidence. If found to be competent, the risk of inappropriate sympathy is a significant factor that the Crown has acknowledged by its decision to join in the application. The allegations against the accused do not involve factual issues that require the application of objective community standards, including with regard to issues of reasonableness, negligence, and indecency such that the discretion found in s 132(4) might have been enlivened had the Crown not agreed to the application for a judge alone trial.

8. Since both parties sought the trial by judge alone the Court was mandated to that course, from which it would follow that without leave the trial could not begin in the Dubbo region until the time might be set aside for the trial at some point in the future when the work load of the court permitted. The accused is in custody. He has served the entire sentence after conviction for driving dangerously and occasioning death and has been bail refused pending the determination of the current proceedings. He must remain in custody until the conclusion of the sentence yet to be determined following his conviction in the first of these trials, but it is not appropriate to delay this trial when there is no reason to do so. The time has been set aside in the court for the trial, the vulnerable complainants are expecting to be called imminently, and the accused wishes the trial to proceed with some expedition. It would simply be unjust to delay the proceedings for 28 days in these circumstances, including that it could not be said that there was any hint of seeking to have the matter proceed before a particular judge.

9. It is not appropriate to compel the complainants to return to the Court on a later occasion after anticipating that they would be called to give their evidence in this Court presently available to hear the matter. The stress and anxiety complainants in such matters face as trial dates approach must be understood. It would be unconscionable to have the complainants suffer delay and require them to return to the Court at some time in the future when it might have time to hear the trial, after experiencing the anxiety implicit in the anticipation of what was to imminently occur in the court room.

10. Of course the same observations apply to the accused. He would be compelled to suffer a measure of stress awaiting the outcome of delayed proceedings upon such serious allegations. He ought not be denied the opportunity to have his trial determined expeditiously when the Court could dispose of it and he ready, willing, and able to have it proceed.

The Decision

11. Accordingly, leave was given to file the application, and proceedings commenced on 21 June 2024. The accused was arraigned and upon arraignment pleaded not guilty to all charges. Voir dire proceedings have continued with regard to the use of a witness intermediary to assist the vulnerable complainants, and the competency of two of them.

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Decision last updated: 26 June 2024