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…

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 Mitchell & Ors

Details

AGLC: R v Mitchell & Ors [2024] SASC 52
Case: [2024] SASC 52
Decision Date: 17 April 2024

CaseChat Overview and Summary

In this case, the defendants, who have been charged with murder, sought extensions of time to elect for a trial by judge alone after their convictions were overturned on appeal. The court had to decide whether to grant these extensions of time and permit the defendants to elect for a trial by judge alone. The defendants argued that there were special reasons for granting the extensions of time, while the Director opposed the extensions of time and the granting of the election, noting that they were filed very late and gave rise to a perception of ‘forum shopping’.

The court considered the relevant legal principles and found that there is no dispute about the principles that apply. 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. The court also considered the affidavits filed by the defendants' solicitors, which set out the circumstances in which each of their clients made the election and the reasons for the delay. The court found that each of the defendants had special reasons for the delay and that it would be unjust not to grant the extensions of time. The court therefore granted the extensions of time and made orders that the trial listed for six weeks commencing on Monday, 13 May 2024 proceed as a trial by judge alone.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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