R v Scott
[2013] SASC 29
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SCOTT
[2013] SASC 29
Reasons for Decision of The Honourable Justice Sulan
7 March 2013
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
Application by accused for an extension of time to elect for trial by judge alone - application made on the first listed day of retrial - whether special reasons for an extension of time existed.
Held: application granted - the prosecution indicated an intention to cross-examine a witness in a manner different to the cross-examination at the previous trial - the proposed cross-examination would be highly prejudicial to the accused, and would relate to events not directly relevant to the charges but relevant to the credibility of the witness - defence counsel was not counsel at trial or at the Court of Criminal Appeal - defence counsel was briefed recently in the matter - special reasons for an extension of time existed and it would be unjust to refuse the application.
Juries Act 1927 (SA) s 7; Juries Rules 1996 (SA) r 8, r 12, r 16, r 17, referred to.
R v Gavare [2011] SASCFC 38, considered.
R v SCOTT
[2013] SASC 29Criminal
SULAN J: Paul John Scott is charged with attempted murder and aggravated endangering life. It is alleged that on 16 April 2011 at Salisbury Downs he attempted to murder Paul Richard Smart. In the alternative, it is alleged that on the same day he endangered the life of Paul Richard Smart by doing an act, namely, shooting Mr Smart knowing that the act was likely to endanger the life of Mr Smart and intending to do so, or being recklessly indifferent to whether Mr Smart’s life was in endangered.
In August 2012, the accused pleaded not guilty to the charges. A trial was conducted before a Judge and jury. On 27 August 2012, the jury returned a verdict of guilty of attempted murder. On 20 December 2012, the conviction was overturned and a retrial ordered by the Court of Criminal Appeal.
Upon the accused being arraigned before me on 4 March 2013, being the first day of trial, counsel for the accused applied for an extension of time to elect a trial by judge alone. Counsel for the accused had not been counsel at the original trial, nor had he been counsel before the Court of Criminal Appeal. I granted the application. I now publish my reasons.
The Act
Section 7 of the Juries Act 1927 (SA) provides:
7—Trial without jury
(1) Subject to this section, where, in a criminal trial before the Supreme Court or the District Court—
(a)the accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,
the trial will proceed without a jury.
(2) No election may be made under subsection (1) where the accused is charged with a minor indictable offence and has elected to be tried in the District Court.
(3) Where two or more persons are jointly charged, no election may be made under subsection (1) unless all of those persons concur in the election.
(3a) Where an information is presented to the District Court or the Supreme Court under section 275 of the Criminal Law Consolidation Act 1935 and the information includes a charge of a serious and organised crime offence (within the meaning of that Act), the Director of Public Prosecutions may apply to the court for an order that the accused be tried by judge alone.
(3b) The court may make an order on an application under subsection (3a) if it considers it is in the interests of justice to do so (and may do so at any time before commencement of the trial of the matter, regardless of whether a jury has been constituted in accordance with this Act to try the issues on the trial).
(3c) Without limiting subsection (3b), the court may make an order on an application under subsection (3a) if it considers that there is a real possibility that acts that may constitute an offence under section 245 or 248 of the Criminal Law Consolidation Act 1935 would be committed in relation to a member of a jury.
(3d) An order of a court on an application under subsection (3a) may be appealed against in the same manner as a decision on an issue antecedent to trial.
(4) If a criminal trial proceeds without a jury under this section, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.
The relevant rules of the Juries Rules 1996 (SA) provide:
8(1)An accused person may make an election (hereinafter called (“the election”), pursuant to section 7(1)(a) of the Act in the manner and at the time stipulated in this Rule and not otherwise.
...
12Notwithstanding the provisions of Rules 8, 9 and 10A where there has been a mistrial or a jury has been unable to reach a verdict or an appeal against conviction has been allowed and the accused person or persons have been remanded for a new trial the accused person or persons may make the election in the ways set out in Rules 8, 9 and 10A within 14 days of being remanded for a further trial.
...
16A Judge may dispense with compliance with all or any of the requirements of these Rules, if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so.
17A Judge may extend or abridge any of the periods of time prescribed by these Rules if the Judge is satisfied that there are special reasons for so doing or that it would be unjust not to do so and the Judge may do so whether or not such period of time has expired.
It is conceded that the election was not made within the time prescribed by the Rules. The application was for dispensation from the Rules, and an extension of time within which to make the election.
Reasons for granting the application
Ms S McDonald SC, counsel for the Director of Public Prosecutions, did not oppose the application. She informed me that, at the previous trial, a witness, Ms Ormsby, gave evidence that the accused was in her company at the time that Mr Scott was shot. Her evidence supported the defence case that this was a case of misidentification by the complainant and a prosecution witness who supported the complainant’s evidence. The Crown case relied substantially upon the evidence of the complainant. The supporting witness did not see the accused, but claimed to have recognised the accused’s voice just prior to the complainant being shot.
If the evidence of Ms Ormsby and the other witnesses was accepted, or considered to be reasonably credible, then there may well have been a reasonable doubt that the accused was the person who committed the crime.
Ms McDonald informed me that, if Ms Ormsby was called as a defence witness in the trial, she would cross-examine her in much more detail than the cross-examination at the previous trial. Included in the cross-examination would be questions relating to Ms Ormsby’s support of the accused when the accused breached his home detention bail and cut off his bracelet and was, in Ms McDonald’s description, “on the run”. Ms McDonald foreshadowed extensive cross-examination of Ms Ormsby about her support for the accused. In the earlier trial, there had been very little cross-examination dealing with that subject.
In the circumstances, Ms McDonald submitted that it may well be unjust to deny the accused his right to trial by judge alone when there may be extensive cross-examination which is prejudicial to him, and which relates to events not directly related to the charges.
I was informed by counsel for the accused that his present instructions were to call Ms Ormsby and the other alibi witnesses who had given evidence at the previous trial.
Ms McDonald had not been counsel at the earlier trial. She foreshadowed that she would be conducting the case differently from the manner in which it had been conducted in the earlier trial.
In R v Gavare,[1] Gray J, with whom Duggan and Sulan JJ agreed, considered the operation of s 7 of the Juries Act and the Juries Rules. He said:[2]
The extent to which the right contained in section 7 of the Juries Act is limited by the operation of rules 8(5) and 8(7) of the Juries Rules, is, in my view, to be understood to be coupled, and in a way, tempered, by the discretion conferred by rules 16 and 17. Rule 8 is not to be construed in isolation of the remainder of the rules.
The discretion of the court to dispense with compliance with the requirements of the rules or to extend time are both conditioned on the court being satisfied that either there is special reasons for so doing, or that it would be unjust not to do so. The fact that the discretion is conditioned on the above alternatives would suggest that rules were designed to facilitate an extension in an appropriate case. The use of the phrase “would be unjust not to do so” is designed, it might be suggested, to enable the court to act in a wide variety of circumstances. As the purpose of the rule appears primarily to be directed to control process and avoid abuses of process, then it may be understood that a genuine explanation as to why the right was not exercised earlier would be sufficient to meet the requirement of the rules. It is relevant to note that even if the justice of the case does not call for an extension, special reasons may otherwise exist.
Much has been said about the concept denoted by the expression “special reasons”. It amounts to reasons that are out of the ordinary, something that is distinct or peculiar about the case. It is something that exceeds, in some way, that which is usual or common. It has also been said that the phrase denotes that the discretion that it constrains is not lightly to be enlivened. However, what will amount to special reasons is to be interpreted in the context in which the term is used; the expression takes its colour from the context in which it is found. As King CJ in Goldsmith v Newman observed:
The expression "special reasons" is used in a number of statutes. It takes its colour necessarily from the context in which it is found and in particular from the purpose which the particular statutory provision is intended to serve. I do not think that much, if any, assistance can be gained from the interpretation of the expression where it is used in other contexts.
As discussed above, one matter of concern is for the court to consider whether its processes are being abused – for example, by what is loosely described as “judge-shopping”. Another matter of concern is for the court to understand why the proposed election was not made at or before the time of the first arraignment.
[Citations omitted.]
[1] [2011] SACFC 38.
[2] [2011] SASCFC 38, [58]-[61].
It is conceded by counsel for the Director that this is not a case of “judge shopping”. I note that an election could have been made within 14 days after the decision of the Court of Criminal Appeal. I also note that counsel now representing the accused was not counsel at trial or at the Court of Criminal Appeal.
The fact that there is a change of counsel does not of itself amount to special circumstances justifying a dispensation of the Rules, or supporting an extension of time within which an election can be made for a trial by judge alone. Nevertheless, it is a factor to which the Court is entitled to have regard. In this case, I am advised that counsel was recently briefed in the matter and only had an opportunity to consider the brief the week before trial. Again, that factor alone would not support an application to dispense with the Rules.
The relevant change of circumstance is that counsel for the prosecution has intimated that the approach to cross-examination of the proposed witnesses for the defence has now changed. Counsel foreshadows that she will cross-examine the accused’s fiancé, Ms Ormsby, in much more detail than at the previous trial. That cross-examination will, by its nature, refer to the accused breaching his bail and avoiding his obligations under his bail agreement. That evidence is highly prejudicial to the accused, although not directly relevant to the charges. It is relevant evidence going to the credit of the witness proposed to be called to support the defence case.
I considered this was a case where special reasons existed, and it would be unjust to refuse the application for abridgment of the time within which to make the application.
I therefore granted an abridgment of the time to Monday, 4 March 2013 to permit the applicant to elect for a trial by judge alone.