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R v Niguidula (No 8)

R v Niguidula (No 8)

Case [2023] NSWSC 593 2 June 2023

Substantial Impairment

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Niguidula (No 8) [2023] NSWSC 593
Hearing dates: 17 May 2023
Date of orders: 17 May 2023
Decision date: 02 June 2023
Jurisdiction: Common Law - Criminal
Before: Dhanji J
Decision:
Leave pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) is refused.

Catchwords:
CRIMINAL LAW – trial proceedings – murder – application for trial by judge alone – application within 28 days of the day the matter fixed for trial –leave sought – where previous application refused – where application sought after dismissal of first jury – media reporting on previous trial – delay and efficiency – partial defence of substantial impairment to be raised – leave refused

Legislation Cited:
Crimes Act 1900 (NSW) s 23A
Criminal Procedure Act 1986 (NSW) ss 132, 132A, 144
Mutual Assistance in Criminal Matters Act1987 (Cth)

Cases Cited:
Alameddine v R [2022] NSWCCA 219
R v Abdaly; R v Hosseinishoja (No 3) [2022] NSWSC 1511
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 9) [2019] NSWSC 1785
R v Niguidula [2023] NSWSC 290
R v Niguidula [2023] NSWSC 290
R v Niguidula (No 3) [2023] NSWSC 481
R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259
Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986
R v Niguidula (Supreme Court (NSW), Cavanagh J, 4 March 2022, unrep)

Category: Procedural rulings
Parties: Rex (Crown)
Jenny Niguidula (Accused)
Representation:
Counsel:
C Taylor (Crown)
A Boe with G Boe (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Murphy’s Lawyers (Accused)

File Number(s): 2019/390005
Publication restriction: Nil

Judgment

On 17 May 2023, the accused made an application pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) for leave to make an application pursuant to s 132(1) that she be tried by judge alone. On that same day, I made an order refusing leave and indicated that I would provide reasons later. These are my reasons for that order.

Background

On 2 July 2021, the accused was arraigned before R A Hulme J on an indictment charging her as follows:

Count 1: Between 9 November 2019 and 14 November 2019, at South Wentworthville in the State of New South Wales, did assault Rhonie Apostol, thereby occasioning actual bodily harm.
Count 2: On or about 17 November 2019, at South Wentworthville in the State of New South Wales, did murder Rhonie Apostol.

The accused pleaded not guilty to both charges. The matter was first listed for trial to commence on 21 March 2022. That trial date was vacated on 4 March 2022: R v Niguidula (Supreme Court (NSW), Cavanagh J, 4 March 2022, unrep). The matter was then listed for trial to commence on 31 October 2022. That trial was vacated on 14 October 2022.
The matter was then set down for trial to commence on 1 May 2023. In the interim, on 13 October 2022, the accused…

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 Niguidula (No 8)

Details

AGLC: R v Niguidula (No 8) [2023] NSWSC 593
Case: [2023] NSWSC 593
Decision Date: 02 June 2023

CaseChat Overview and Summary

The case before the court involved a murder trial where the accused, Niguidula, sought leave to have the trial conducted by a judge alone. The application was made within the statutory 28-day period, following the dismissal of the first jury due to an inability to reach a verdict. The application was made after a previous one had been refused. A significant factor in the proceedings was the media coverage of the earlier trial, which the defence argued could influence potential jurors. The court had to consider the delay and efficiency of the proceedings, as well as the partial defence of substantial impairment that the defence intended to raise. The primary legal issue before the court was whether to grant leave for a trial by judge alone, considering the previous refusal, the impact of media reporting, and the partial defence that would be raised. The court held that granting leave would not be in the interests of justice due to the previous refusal of a similar application, the lack of a significant change in circumstances, and the potential for prejudice from media coverage. The court also noted that the partial defence of substantial impairment did not constitute a new or exceptional circumstance warranting a change in the mode of trial. Consequently, the application was dismissed, and the trial proceeded with a jury. The court's decision emphasised the importance of maintaining the integrity of the trial process and ensuring that any changes to the mode of trial are justified by exceptional circumstances.

Orders