R v Settree

[2016] NSWSC 1028

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Settree [2016] NSWSC 1028

Hearing dates:

27 July 2016

Date of orders:

27 July 2016

Decision date:

27 July 2016

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

On the application of the accused, by and with consent of Eric Balodis Esq., Crown Prosecutor, on behalf of her Majesty, the Queen, and on the grounds set out in these reasons the Court orders:

Pursuant to s.132A Criminal Procedure Act 1986, grant the accused leave to apply for trial by judge alone;

Pursuant to s.132 of the said Act, the accused be tried for two counts of murder and a firearms offence, commencing on 27 July 2016 by a judge alone without a jury.

Direct that the jury panel summoned for jury service for this trial be dispensed with.

Catchwords:

CRIMINAL LAW – application for judge alone trial

Legislation Cited:

Criminal Procedure Act 1986 (NSW) – ss 132, 132A

Category:

Procedural and other rulings

Parties:

Regina (Plaintiff)
Scott Settree (Defendant)

Representation:

Counsel: Eric Balodis (Crown Prosecutor)
Eric Wilson SC (Accused)

Solicitors: NSW Director of Public Prosecutions (Crown)
Legal Aid (Accused)

File Number(s):

2014/357855

Ex tempore judgment (Revised)

1. The accused has been arraigned on a charge of murdering his mother and father. He is also charged with possessing unauthorised firearm. His trial by jury was to commence today. By application notified to my chambers on Tuesday 26 July 2016, the accused applies for leave to make an application for trial by judge alone.

2. Section 132A of the Criminal Procedure Act 1986 (NSW) requires the grant of the Court's leave before an application for trial by judge alone made less than 28 days before the date fixed for trial may be entertained. The accused originally elected for trial by judge alone by documents signed on 10 February 2016 before he was arraigned in the Supreme Court. At that time the Crown did not consent and the application was not further pursued. He has signed a fresh election on 26 July 2016 and at this time the learned Crown Prosecutor consents to the election.

3. From the election I find that, before making it, the accused sought and received advice in relation to it from Mr Wilson of Senior Counsel and also Ms Shaw, Solicitor. I infer that, with the benefit of that advice, the application is made of his own free will. I record the consent of Mr Eric Balodis of counsel, Crown Prosecutor, given on 26 July 2016 as endorsed on the form of election.

4. The grant of the application to extend the time for making the election is that the forensic psychiatrists qualified to give evidence on behalf of the Crown and the accused have only lately concluded that the mental illness offence may be available to the accused. Previously they had expressed opinions about the partial defence of substantial impairment being available. I am satisfied that the late expression of that opinion is not due to any want of forensic diligence on the part of the legal representatives of the parties and accordingly I think it appropriate for me to extend the time for making this application.

5. By dint of s 132(2) of the Act, once leave to make the application is granted, the Court must make a trial by judge order if the accused and the prosecutor agree to trial by judge alone. In such circumstances the Act of Parliament allows the judge no discretion. Subject to s 132(6), that is the present case. As I accept the content of the statement made by the accused, I am satisfied, as I have said, that he sought and received advice in relation to the effect of a trial by judge order from his legal practitioners and, accordingly, subs 6 is no bar to the making of a trial by judge order.

6. I am also of the view that s 132(5) does not alter its legal outcome as it only applies to a case in which s 152(4) also applies and that provision comes into play only when the prosecution does not agree to trial by judge alone.

7. In all of these circumstances the necessary statutory provisions being satisfied, as I have said I have bound by law to accede to the application. For these reasons I make the following orders. On the application of the accused by and with the consent of Eric Balodis Esquire, Crown Prosecutor on behalf of Her Majesty The Queen and on the grounds set out in these reasons, the Court orders:

1. Pursuant to s 132A of the Criminal Procedure Act 1986 (NSW), I grant the accused leave to apply for trial by judge alone.

2. Pursuant to s 132 of the said Act, the accused be tried for two counts of murder commencing on 27 July 2016 by a judge alone without a jury.

3. Direct that the jury panel summoned for jury service for this trial be dispensed with.

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Amendments

08 August 2016 - Paragraph 7 take out the words between "Esquire" and "Crown"

Decision last updated: 08 August 2016