R v Mitchell & Ors - [2024] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v MITCHELL & ORS
[2024] SASC 52
Reasons for Ruling of the Honourable Justice McIntyre
17 April 2024
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
The defendants are charged with the offence of murder occurring on 9 October 2018. They were convicted by a jury following a trial in the Supreme Court of South Australia, however the convictions were overturned by the High Court on 8 March 2023 and the matter was remitted for retrial.
The defendants have applied for extensions of time to elect for a trial by judge alone under s 7 of the Juries Act 1927 (SA) and Rule 94 of the Joint Criminal Rules 2022 (SA). The Director opposes these application citing concerns of forum shopping.
Held:
1. Applications granted – it is in the interests of justice to grant the extensions of time and the applications for trial by judge alone.
Joint Criminal Rules 2022 (SA) rr 94.6(1), 94.1(2); Juries Act 1927 (SA) s 7(3), referred to.
R v Gavare [2011] SASCFC 38; R v Pacitti (2022) 141 SASR 482; R v Sandell & Ors (Supreme Court of South Australia, Kimber J, 27 September 2022), considered.

R v MITCHELL & ORS
[2024] SASC 52
Criminal: Application

The defendants have applied for extensions of time to elect for a trial by judge alone under s 7 of the Juries Act 1927 (SA) (‘Juries Act) and r 94 of the Joint Criminal Rules 2022 (SA) (‘JCR’). For the reasons that follow, I grant the extensions of time, and I make orders that the trial listed for six weeks commencing on Monday, 13 May 2024 proceed as a trial by judge alone.
Background
The defendants are charged with the offence of murder occurring on 9 October 2018. They were convicted following a trial in the Supreme Court of South Australia before a Judge and jury. The convictions were ultimately overturned on appeal in the High Court on 8 March 2023. The matter was remitted to the Supreme Court for retrial. For cases proceeding to a retrial following a successful appeal against conviction, a judge alone election is to be made in the prescribed form within 28 days after being remanded for a new trial.[1] All defendants in a joint trial must elect for trial by judge alone otherwise the trial must proceed as a jury trial.[2]
[1] Joint Criminal Rules 2022 (SA) r 94.6(1) (‘JCR’).
[2] Juries Act 1927 (SA) s 7(3).
Following the matter being remitted to the Supreme Court, a series of directions hearings were held on 20 March 2023, 27 March 2023, 8 May 2023 and 29 May 2023. The trial date was fixed for 6 weeks commencing Monday, 13 May 2024 at the directions hearing on 29 May 2023. The listing was for a jury trial.
The defendants filed their elections for trial by judge alone as follows:
·Mr Rigney on 19 January 2024;
·Mr Tenhoopen on 6 February 2024;
·Mr Mitchell on 7 February 2024; and
·Mr Carver on 4 March 2024.
Accordingly, the elections in this matter have been filed very late. Each defendant requires an extension of time within which to elect. The Court may extend the time for making an election under JCR 94.5 and 94.6 if satisfied that there are “special reasons for so doing or that it would be unjust not to do so, notwithstanding that the prescribed period has expired.”[3]
[3] JCR r 94.1(2).
Each of the solicitors for the defendants have filed affidavits setting out the circumstances in which each of their clients made the election and the reasons for the delay.[4]
[4] Affidavit of Ben Thilthorpe (sworn 13 March 2024) FDN 841, Affidavit of James Noblet (sworn on 25 March 2024) FDN 846, Affidavit of Heidi Salvemini (sworn on 8 April 2024) FDN 851, Affidavit of Emma Shaw (sworn on 9 April 2024) FDN 852.
The Director opposes the extensions of time and the granting of the election, noting that they were filed very late. It is said that the scenario that the Court faces is precisely the scenario that the Rules are designed to prevent. The Director is concerned that the timing of the filing of the applications gives rise to a perception of ‘forum shopping’.
The legal principles
The legal principles are helpfully set out in the Director’s written submissions. There is no dispute about these principles. In particular, it is clear that the operation of s 7 of the Juries Act is premised on elections for trial by judge alone being made at an early stage of proceedings and usually before the identity of the trial judge is known.
This timing of elections for trial by judge alone was considered by the Full Court in the matter of R v Gavare.[5] Although this decision was made in the context of the former rules, these are not materially different to the current rules. Gray J said:[6]
…
As the purpose of the rule appears primarily to be directed to control process and avoid abuses of process, then it may be understood that a genuine explanation as to why the right was not exercised earlier would be sufficient to meet the requirement of the rules. It is relevant to note that even if the justice of the case does not call for an extension, special reasons may otherwise exist.
[5] R v Gavare [2011] SASCFC 38 (‘Gavare’).
[6] Gavare at [59].
Justice Gray then discussed the concept of ‘special reasons’ and the factors that ought to be taken into account in assessing whether these exist. He said that one matter of concern for the Court to consider is whether its processes are being abused by what is loosely described as judge shopping.[7]
[7] Gavare at [61].
The issue was discussed in the context of the current rules by the Court of Appeal in R v Pacitti where Livesey P said:[8]
It may be surmised that the requirement that the election be exercised by no later than the day of the accused’s first arraignment and plea of not guilty has the consequence that the decision about an election will ordinarily be made other than by reference to the identity of the likely trial judge. Nonetheless the first arraignment may, perhaps unusually nowadays, be coincident with the likely trial date. That the identity of the trial judge may then be known or likely to be known is not in itself a proper reason to reject the election.
[8] R v Pacitti (2022) 141 SASR 482 at [34].
President Livesey then went on to consider the discretion available under the Rules to permit an extension of time noting that the power is not to be exercised as a matter of course.
R v Sandell & Ors raised similar issues to the present case. Four defendants filed trial by judge alone applications significantly after the time set by the JCR. The defendants were aware of the identity of the trial judge. Each of the defendants provided reasons why the elections were not made within time. The Director did not oppose extensions of time in that matter, but the granting of the elections remained a matter for determination by the Court. Justice Kimber concluded that it was appropriate to grant the applications saying:[9]
In this case there is no suggestion of an abuse of process… In my view, the question of whether I should exercise my discretion is relatively finely balanced. Nonetheless I am satisfied that there is a genuine explanation as to why the right [to elect for a trial by judge alone] was not exercised earlier. That being so, I am satisfied that it would be unjust not to give the defendants the type of trial which they now seek.
[9] R v Sandell & Ors (Supreme Court of South Australia, Kimber J, 27 September 2022) 4-5.
Discussion
This matter raises complex legal and factual issues as is made plain from the appellate Judgments. It is further complicated by the fact that this is a re-trial giving rise to the usual complexities of such trials. Jury directions will of necessity be lengthy, sophisticated, and nuanced. The defendants are concerned that there is a potential for those directions to be misunderstood or misapplied by a jury. Whilst I do not necessarily agree that jury directions could not be fashioned to avoid or minimise such a possibility, I accept that, at the least, the defendants’ concern has some foundation particularly in view of the history of these proceedings. Further, I accept that such considerations made it proper for the defendants to be advised about the availability of election for trial by judge alone. It is further clear that, had the applications been made within time, they would have been granted.
The submissions for the defendants accept, as they must, that these applications are very late and have not been made in accordance with the JCR’s. All four, however, dispute the suggestion of forum shopping. They dispute the Director’s submission that an email from my Chambers dated 20 December 2023 gave rise to the implication that I would be the trial judge. The Director accepts that there was no mention of this in the email which called the matter on for directions, but said it is a well-known practice for trial judges to call on the matters for case management in the lead up to a trial date.
The directions hearing referred to in that email took place on 7 February 2024. The elections by Mr Rigney and Mr Tenhoopen were filed prior to that date and the election by Mr Mitchell was filed on the same day. Mr Carver’s election was not filed until 4 March 2024. At the outset of the hearing, prior to any discussions about the identity of the trial judge, all four defendants indicated through their counsel that they had either made an application for an extension of time to elect or had received firm instructions to do so and were awaiting the return of paperwork for filing.
The affidavits from the solicitors set out the background to the applications. In the case of Mr Rigney’s application, the affidavit of his solicitor says that, between early September 2023 to early December 2023, discussions were occurring with counsel concerning whether it would be preferable for the trial to proceed by judge alone. A firm view that this advice would be given was made by no later than 13 December 2023. There were difficulties contacting Mr Rigney to provide that advice because of the revocation of his bail. On 19 December 2023 a file note records that there was a discussion between Mr Rigney and his solicitors on this topic. The note indicates that it was necessary for his solicitors to attend on him in prison in order to get his signed instructions for the election for trial by judge alone. Those signed instructions were obtained on 19 January 2024 and Mr Rigney’s application was filed the same day.
Mr Carver’s solicitor’s affidavit refers to the fact that there had been discussions between herself and counsel as to the possibility of their client electing for trial by judge alone. They were mindful of the fact that any application by their client would be futile if the other defendants did not make similar elections. Their understanding was that none of the other defendants intended to make elections. Subsequently, discussions then took place between the representatives of the various defendants, and they became aware of Mr Rigney’s decision to elect. This motivated Mr Carver to give firm oral instructions on 19 January 2024 that he wished to elect for trial by judge alone in the light of the others also being likely to elect. The necessary paperwork was sent to Mr Carver on or about 26 January 2024. Owing to the difficulties outlined in his solicitor’s affidavit, the paperwork was not completed by Mr Carver and returned to his solicitor until 4 March 2024. The application was filed the same day.
Mr Mitchell and Mr Tenhoopen’s solicitors have sworn affidavits to similar effect. Mr Mitchell’s solicitor says that, after obtaining advice from counsel, a conference was arranged with his client and the election was signed prior to the directions hearing on 7 February 2024. Mr Tenhoopen’s solicitor says that she became aware of the other elections on or about 1 February 2024 and that a conference was arranged with counsel and her client on 5 February 2024. Mr Tenhoopen provided instructions and signed the relevant election form that day. It was uploaded to the CourtSA portal on 5 February 2024 and accepted on 6 February 2024.
In the light of this time frame and the uncontested affidavit evidence, I reject the suggestion that the defendants made their elections and applications with the identity of the trial judge in mind. There were proper reasons for the advice that was given that took no account of the identity of the trial judge. Given that I have rejected the suggestion of forum shopping, this has the further consequence that, absent any other grounds, there is no reason why I could not sit as the trial judge and the trial proceed as currently listed. Granting the extension of time and the applications will not therefore cause any delay to the trial.
As to the explanation for the delay, the affidavit material indicates that the delay was caused by the defendant’s representatives rather than any default on the part of the defendants. Whilst the defendants’ representatives turned their minds to the possibility of applications for trial by judge alone, they did not do so in a timely manner, nor did they provide the relevant advice to their clients within an appropriate time frame. There was no apparent regard by any of the defendants’ representatives to the relevant time limits. Regrettably this cavalier attitude to the requirements of the JCR is all too prevalent and is to be deprecated.
Whilst I accept that the exigencies of criminal practice, and the particular issues in this matter identified in some of the affidavits filed, made compliance with the time limits set out in the JCR challenging, the fact remains that the time limits are prescribed for good reason and should be front of mind for competent practitioners. This is not simply a question of providing proper advice to clients but also forms part of a practitioner’s duty to the Court.
The delay is substantial and occurred in circumstances where the Court had listed several directions hearings, amongst other things, to discuss readiness for trial. Late elections for trial by judge alone have the capacity to cause adjournments with all the inconvenience and distress that entails not to mention consequential impacts to other matters in the trial list. Whether the trial was to proceed as a jury trial or as a trial by judge alone was a significant matter that required attention and, in the circumstances, prompt discussion with the representatives of the other parties.
As it was, the defendants’ representatives did not discuss the possibility with the other parties until after Mr Rigney made his decision. It was said in submissions that this created a domino effect and that, Mr Rigney having elected, it brought the question into sharp focus for the other defendants. Frankly this submission, is unacceptable. True it is that if the others did not make similar elections an election by one was, to that extent, futile. Nonetheless, each defendant was entitled to the advice that was eventually provided and each was entitled to make a decision regardless of the position of the others. It should also be noted that, in appropriate cases, such a situation may give rise to an application for severance.
In any event, once the inertia had ceased with Mr Rigney’s election, each defendant was then provided with prompt advice which was accepted by each. Once instructions were provided the applications were filed immediately except in the case of Mr Carver which I accept was occasioned by factors outside the control of both Mr Carver and his solicitors. I accept that all defendants had given firm instructions prior to the directions hearing on 7 February 2024.
The delay in providing advice to the defendants is a genuine explanation, for the present applications. Generally speaking, such defaults on the part of legal representatives do not constitute a proper basis for granting an extension of time particularly with a delay of such magnitude. The issue in this case is finely balanced. However, in the circumstances, I consider that the interests of justice mean that the delay of the defendant’s solicitors ought not be visited upon the defendants.
I am satisfied that, as there has been no abuse of process and there is a genuine explanation for the delay, it is in the interests of justice to grant the extensions of time and the applications for trial by judge alone.