R v Pacitti

The Director of Public Prosecutions appealed an acquittal granted by a trial judge in the District Court. The dispute arose after the trial judge discharged the jury and subsequently proceeded to deliver a verdict without a jury, acquitting the accused on two counts. The core of the appeal concerned the trial judge's power to continue the trial without a jury after the jury had been discharged.

The legal issues before the court were whether the trial judge possessed the power to continue the first trial without a jury after discharging the jury, and whether, in doing so, the judge had the authority to grant the accused an extension of time to elect to proceed without a jury under rule 42(5) of the Juries Rules. This required an examination of the relevant legislation and rules governing criminal trials in the state's superior courts, specifically the District Court Act and the Juries Act, and the Juries Rules concerning elections for trial by judge alone.

The court held that the power under rule 42(5) of the Juries Rules was not available to the trial judge after the jury had been discharged. The court reasoned that by the time the jury was discharged, the first trial had concluded, and any subsequent trial would require a new election under rule 44. Furthermore, the court determined that the power under rule 42(5) ceased to be available once the accused was placed in the charge of the jury, as at that point, the accused had irrevocably chosen the mode of trial. The court also noted that any application for an extension of time or an election to proceed without a jury should not be made conditionally or dependent on the identity of the presiding judge.

Consequently, the Director's application for permission to appeal was granted, and the appeal was allowed. The acquittal of the respondent was set aside, and the matter was remitted for a retrial.