R v So (No 1) - [2023] NSWSC 987

Supreme Court

New South Wales

Medium Neutral Citation: R v So (No 1) [2023] NSWSC 987
Hearing dates: 27 July 2023
Date of orders: 27 July 2023
Decision date: 01 September 2023
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Pursuant to s 132A(1) of the Criminal Procedure Act 1986 (NSW), grant leave to the accused to apply for an order that she be tried by judge alone;
(2) Order pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW) that the accused be tried by judge alone.

Catchwords:
CRIME – Application for trial by judge alone – Court informed of application 27 days before trial – Leave required – Accused a transgender woman not fluent in English – Trial likely to involve evidence of her engagement in sex work – Logistical complexities associated with expert evidence of disputed admissions allegedly made by accused via interpreter – Crown consents to application

Legislation Cited:
Criminal Procedure Act 1986 (NSW), ss 132, 132A

Cases Cited:
Alameddine v R [2022] NSWCCA 219

Category: Procedural rulings
Parties: Rex
Kylie So (Accused)
Representation:
Counsel:
L Shaw (Crown)
I Nash (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s): 2017/279513

JUDGMENT

HIS HONOUR: The accused was arraigned in the Supreme Court on 2 September 2022 on a charge that she murdered Robert Dickie at Elong Elong between 14 and 15 June 2016. The accused entered a plea of not guilty and the trial was set down to commence in the Supreme Court sitting at Dubbo, commencing on 14 August 2023. By email dated 22 February 2023, the parties were advised that I would be the trial judge. The matter was mentioned on 9 March 2023 and again on 19 July 2023.
At the mention on 19 July 2023, counsel for the defence foreshadowed that, subject to final instructions, the accused intended to file a notice of motion seeking leave to apply for an order for the trial to proceed by way of judge alone. In a notice of motion dated 24 July 2023, the accused formally sought leave to apply for an order that she be tried by judge alone, pursuant to s 132A(1) of the Criminal Procedure Act 1986 (NSW) (the Act), and if leave is granted, an order to that effect.
The application was heard on 27 July 2023. I made orders granting leave to the accused to apply for a trial by judge alone, and made an order to that effect. These are my reasons.
The application was not opposed by the Crown. Sections 132 and 132A of the Act, insofar as they are relevant to this application, are as follows:

“132   Orders for trial by Judge alone
(1)   An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).
(2)   The…

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 So (No 1)

Details

AGLC: R v So (No 1) [2023] NSWSC 987
Case: [2023] NSWSC 987
Decision Date: 01 September 2023

CaseChat Overview and Summary

In this case, the accused, a transgender woman not fluent in English, was facing trial for a criminal offence. The nature of the dispute involved the accused's application for the trial to be conducted by a judge alone rather than a jury. The application was made 27 days before the trial was due to commence, which was significantly short notice. The accused's trial was likely to involve evidence of her engagement in sex work and required the use of an interpreter for the accused, given her limited English proficiency. This raised logistical complexities associated with the presentation of expert evidence regarding disputed admissions allegedly made by the accused via the interpreter.

The legal issues before the court included whether the application for a trial by judge alone could be made at such a late stage, the difficulties associated with the accused's limited English proficiency and the potential for prejudice against the accused if tried by jury, and the Crown's consent to the application. The court had to weigh the potential prejudice to the accused against the interests of justice and the Crown's consent to the application.

The court determined that while the application was made late, the exceptional circumstances, including the accused's limited English proficiency, the potential for prejudice if tried by jury, and the Crown's consent, warranted granting the application. The court held that the interests of justice required the trial to be conducted by a judge alone. The logistical complexities and potential for prejudice were deemed sufficient to justify the late application and departure from the usual practice of requiring leave for such applications.

The final orders included the grant of the accused's application for a trial by a judge alone and the setting of a new trial date. The court also ordered that the trial would proceed with appropriate measures to ensure the accused's understanding and participation, including the use of an interpreter and any other necessary accommodations.

Orders