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 110Category: Procedural and other rulings Parties: Regina: Crown
Accused: MPWRepresentation: Counsel:
Crown: Oliver
Counsel: Cochrane
Solicitors:
DPP Solicitor: Endacott
Defence Solicitor: Ritchie
File Number(s): 2018/00234957
Judgment
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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.
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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
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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
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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…
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- AGLC
- R v MPW [2020] NSWDC 170
- Case
- [2020] NSWDC 170
- Decision Date
CaseChat Overview and Summary
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
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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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