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 29
Criminal

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…

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 Scott

Details

AGLC: R v Scott [2013] SASC 29
Case: [2013] SASC 29
Decision Date

CaseChat Overview and Summary

The matter before the court in R v Scott involved an application by the accused for an extension of time to elect for a trial by judge alone. The accused, Paul John Scott, was charged with attempted murder and aggravated endangering life. The case had already been through a trial and an appeal, which resulted in the conviction being overturned and a retrial ordered. On the first listed day of the retrial, the accused's counsel applied for an extension of time to elect for a trial by judge alone, as the counsel was not present at the original trial or at the Court of Criminal Appeal and had only recently been briefed in the matter.

The legal issue that the court had to decide was whether there were special reasons for an extension of time, given that the accused's counsel was not present at the original trial or at the Court of Criminal Appeal and had only recently been briefed in the matter. Additionally, the prosecution indicated an intention to cross-examine a witness in a manner different to the cross-examination at the previous trial, which would be highly prejudicial to the accused and relate to events not directly relevant to the charges but relevant to the credibility of the witness.

The court, in its decision, considered that the change in counsel alone did not amount to special circumstances justifying a dispensation of the Rules or supporting an extension of time within which an election could be made for a trial by judge alone. However, the court noted that the relevant change of circumstance was that the prosecution counsel had intimated that the approach to cross-examination of the proposed witnesses for the defence had changed. The prosecution counsel foreshadowed that she would cross-examine the accused's fiancé, Ms Ormsby, in much more detail than at the previous trial, which would, by its nature, refer to the accused breaching his bail and avoiding his obligations under his bail agreement. This evidence was highly prejudicial to the accused, although not directly relevant to the charges. The court considered this to be a case where special reasons existed, and it would be unjust to refuse the application for an abridgment of the time within which to make the application.

The court granted the application for an abridgment of the time to permit the applicant to elect for a trial by judge alone. The final orders of the court would be published separately.

Orders