R v MPW - [2020] NSWDC 170

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v MPW [2020] NSWDC 170
Hearing dates: 4 May 2020
Date of orders: 04 May 2020
Decision date: 04 May 2020
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [21]

Catchwords:
Trial by Judge Alone – Crown Opposes Application – COVID 19 Pandemic – Business of the court to continue

Legislation Cited:
COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
R v BD [2020] NSWDC 150
R v Johnson [2020] NSWDC 153
Redman v R [2015] NSWCCA 110

Category: Procedural and other rulings
Parties: Regina: Crown
Accused: MPW
Representation: Counsel:
Crown: Oliver
Counsel: Cochrane
Solicitors:
DPP Solicitor: Endacott
Defence Solicitor: Ritchie

File Number(s): 2018/00234957

Judgment

By an application by the accused dated 25 March 2020, an order is sought under s 365 of the Criminal Procedure Act for his trial on five charges to be tried by a judge alone. By that section, such an order may be made only if the accused consents to be tried by judge alone and the Court is satisfied the accused has sought and received advice from an Australian legal practitioner in relation to the effect of an order that be tried by a judge alone. This requirement is satisfied by the terms of the application signed by the accused and which formed part of exhibit 1.
Section 365 also provides that, where the prosecutor does not agree, then the order may only be made if the Court considers it is in the interests of justice for the accused to be tried by judge alone. In this case, the prosecution does not agree, so that it is necessary for me to consider whether it is in the interests of justice for the accused to be tried by judge alone.

THE ALLEGATIONS

The accused is charged with five offences. Four of them relate to events occurring on a specified date, namely, 24 June 2018. It is alleged that the accused had sexual intercourse without the consent of the complainant on two occasions that night, once digitally and once by having penile-vaginal intercourse with her. In respect of both of those charges, there is a back‑up charge of indecent assault. The fifth charge is a charge of intending to pervert the course of justice by seeking to obtain an item of evidence. This is said to have occurred on 11 July 2018.

THE LEGISLATIVE PROVISIONS

Prior to 24 March 2020, an application of this type would have been brought necessarily pursuant to s 132 of the Criminal Procedure Act (“the Act”) That this application is being brought under s 365 is because of amendments made to the Act pursuant to the passing of the “COVID-19 Legislation Amendment (Emergency Measures) Bill 2020”. In the submissions made before me, the point was made by the Crown that the “test” for determining whether the order sought should be made remains the same. That test is whether the Court “considers it…

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 MPW

Details

AGLC: R v MPW [2020] NSWDC 170
Case: [2020] NSWDC 170
Decision Date: 04 May 2020

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus MPW, the accused faced a trial by judge alone due to the COVID-19 pandemic. The court had to consider the implications of the pandemic on the administration of justice. The Commonwealth opposed the application by the accused for a trial by jury, citing the ongoing public health crisis. The primary legal issue was whether the judge should proceed with a trial by judge alone instead of a jury trial, considering the exceptional circumstances of the pandemic.

The court examined the statutory provisions that allow for trials by judge alone in certain situations and the broader context of maintaining the continuity of the court's business amidst the pandemic. It took into account the need to balance the rights of the accused with the necessity of mitigating public health risks. The court concluded that the circumstances warranted proceeding with a trial by judge alone, ensuring that the judicial process could continue while safeguarding public health.

Having considered the arguments and the relevant legal principles, the court determined that the trial should proceed by judge alone. This decision aimed to uphold the administration of justice without compromising public safety. The final orders were made in accordance with the reasoning provided, ensuring the trial could proceed in a manner that was both fair and responsible given the pandemic context.

Orders

Orders of the court

See [21]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v MPW [2020] NSWDC 170
Hearing dates:	4 May 2020
Date of orders:	04 May 2020
Decision date:	04 May 2020
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [21]
Catchwords:	Trial by Judge Alone – Crown Opposes Application – COVID 19 Pandemic – Business of the court to continue
Legislation Cited:	COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	R v BD [2020] NSWDC 150 R v Johnson [2020] NSWDC 153 Redman v R [2015] NSWCCA 110
Category:	Procedural and other rulings
Parties:	Regina: Crown Accused: MPW
Representation:	Counsel: Crown: Oliver Counsel: Cochrane Solicitors: DPP Solicitor: Endacott Defence Solicitor: Ritchie
File Number(s):	2018/00234957