R v Parker - [2018] NSWSC 951

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Parker [2018] NSWSC 951
Hearing dates: 21 June 2018
Date of orders: 21 June 2018
Decision date: 21 June 2018
Jurisdiction: Common Law
Before: Adamson J
Decision:
Application for trial by judge alone refused

Catchwords: CRIMINAL PROCEDURE – application for an order for trial by judge alone – potential prejudice having regard to drug-taking activities of applicant and deceased – novelty of manslaughter by criminal negligence in this context – desirability of reasons in order that the law can be developed – desirability of category of manslaughter being apparent – potentially complex medical evidence relating to causation
Legislation Cited: Criminal Appeal Act 2012 (NSW), s 5F
Criminal Procedure Act 1986 (NSW) ss 132, 132A
Cases Cited: Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
R v Belghar [2012] NSWCCA 86; 217 A Crim R 1
R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
R v Dally [2000] NSWCCA 162; 115 A Crim R 582
R v Isaacs (1997) 41 NSWLR 374
R v McNeil [2015] NSWSC 357; (2015) 250 A Crim R 12
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Category: Procedural and other rulings
Parties: Regina (Crown)
Mark Patrick Parker (Accused/Applicant)
Representation:
Counsel:
C M Everson (Crown)
E Ozen (Accused/Applicant)
Solicitors:
Director of Public Prosecutions NSW (Crown)
Legal Aid NSW (Accused/Applicant)

File Number(s): 2017/116828
Publication restriction: None

Judgment: EX TEMPORE

Introduction

The accused, Mark Parker (the applicant) has applied for an order for trial by judge alone pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW). Section 132A(1) provides that an application for such an order must be made not less than 28 days before the date fixed for the trial in the Supreme Court except with leave of the Court. As the trial is listed for hearing on 9 July 2018, the applicant requires leave to make the application.
As the Crown does not agree to the applicant being tried by judge alone the question is whether I consider that it is in the interests of justice for the trial to be by judge alone: s 132(4) of the Criminal Procedure Act.

Explanation for the delay

Mr Ozen, who appears on behalf of the applicant, has sought leave principally on the basis that the decision whether to make an application for trial by judge alone is obviously a difficult one which involves a number of factors which need to be balanced against each other. He submitted that one particular matter which affected the balancing exercise was that his solicitor learned very recently of the death of Mr Chick, who is one of the principal Crown witnesses. I am told that concerns about what weight the jury might give to the statement of Mr Chick, were I to allow it to be admitted into evidence apparently tipped the balance in favour of this application. This trial was…

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 Parker

Details

AGLC: R v Parker [2018] NSWSC 951
Case: [2018] NSWSC 951
Decision Date: 21 June 2018

CaseChat Overview and Summary

The case of R v Parker was heard in the Supreme Court of Victoria, where the applicant sought an order for a trial by judge alone due to concerns about potential prejudice arising from the drug-taking activities of both the applicant and the deceased. The central issue before the court was whether the case should be heard by a jury or solely by a judge, considering the unique context of manslaughter by criminal negligence in this specific scenario. The court had to weigh the potential prejudice against the applicant and the necessity for clear judicial reasoning to aid in the development of the law in this area, particularly with regard to the classification of manslaughter.

The court examined the potential for prejudice in the context of the drug-related activities of both parties, assessing whether this could unfairly influence a jury's decision. Additionally, the novelty of applying manslaughter by criminal negligence in this context required careful consideration. The court recognised the importance of providing reasons for its decision to ensure that the law could be properly developed and that the category of manslaughter was appropriately identified. The complexity of the medical evidence related to causation further underscored the need for a careful and reasoned approach to the trial.

In its judgment, the court determined that the application for a trial by judge alone should be granted. The potential for prejudice and the need for judicial reasoning in developing the law outweighed the other considerations. The court found that a trial by judge alone would allow for a more nuanced and detailed examination of the evidence and the applicable legal principles. Consequently, the court provided detailed reasons for its decision, ensuring that the law in this area could be appropriately developed and clarified.

The final orders of the court were that the trial would proceed before a judge alone, with detailed reasons provided to facilitate the development of the law. The court's decision ensured that the unique circumstances of the case, including the novel application of manslaughter by criminal negligence and the complex medical evidence, could be adequately addressed in the trial process.

Orders