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

1. 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.

2. 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.

3. 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.

4. 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 court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

…

(5)   Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(6)   The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

…

132A   Applications for trial by judge alone in criminal proceedings

(1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.

…

(4) Rules of court may be made with respect to applications under section 132 or this section.”

5. It is relevant to note, for the purposes of assessing the issues raised by the application, that the accused is a transgender woman who was born in Cambodia and who is not fully conversant in the English language. The trial is likely to include evidence to the effect that she has previously worked as a sex worker.

6. The basis of the application was essentially two issues.

1. A jury’s capacity to comprehend expert evidence concerning disputed admissions that were allegedly made by the accused with the assistance of an interpreter; and

2. Potential prejudice arising from the accused’s cultural and professional background and her gender status.

7. In relation to the first issue, at the time of the application for a trial by judge alone, the Crown was waiting upon further material that would have a bearing upon whether it would continue to rely upon a recorded interview with the accused, following her arrest. If the tender was maintained, it was proposed that disputed portions of the interview would be played to the interpreter who assisted the accused, who would be questioned by one or both parties and additional evidence would be called from a defence interpreter. It was also likely that the Crown would make an application that the interpreter’s evidence would be given by an audio visual link (AVL). I understand from the affidavit of the accused’s solicitor that was read on the application that these issues only came to light at a meeting between counsel for the defence and counsel for the Crown on 12 July 2023, which is why the application was brought so late.

8. On 21 July 2023, the accused gave instructions to her solicitor with the assistance of an interpreter to make the application and signed the relevant form for that purpose, pursuant to s 132(1) of the Act. That form is signed by the accused and includes a statement by the accused to the effect that she has received advice from her counsel and solicitor in relation to the election. An affidavit by her solicitor informs the court that the accused expressed that the second issue was of particular concern to her, and was the basis of her wanting to proceed with the trial by judge alone. The Crown accepted that the accused’s personal circumstances may lead to a risk of prejudice.

9. In relation to the second issue, the affidavit of the accused’s solicitor recites internet posts by members of the public, following publicity concerning the forthcoming trial, that are racist and sexist in nature.

10. The accused’s counsel submitted, and the Crown agreed, that the case will not involve a factual issue that requires the application of objective community standards, such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness: s 132(5) of the Act.

11. The Crown does not oppose the application. It noted that the Court was informed that an application would likely be made one day within the 28-day period when leave is required. If leave is granted, then the order must be made: s 132(2) of the Act.

Consideration and determination

12. Although the Crown agreed to the order sought, leave is nevertheless required because the application was made within the 28-day period: Alameddine v R [2022] NSWCCA 219 per the Court (Beech-Jones CJ at CL, Hamill and N Adams JJ) at [23]. In relation to an application brought out of time, in Alameddine at [24] the Court said:

“… on any application for the grant of leave under s 132A, one factor that must be considered is the relative strength of the application for a judge alone order. Where the Crown consents to the application for a judge alone order then that is a strong factor in favour of the grant of leave, although it is not determinative.”

13. I am satisfied that it is appropriate to grant leave, having regard to the fact that the issue that prompted the application arose shortly before the 28-day period commenced and that the Court was informed of the likelihood of the application only slightly within it. As well, the parties knew the identity of the trial judge for five months beforehand, which mitigates against any suggestion that the application was motivated by judge-shopping.

14. Turning then to the application itself, I am satisfied that the accused has sought and received advice in relation to the effect of an order for a trial by judge alone, from her solicitor and trial counsel. Since the application is not opposed by the Crown, it follows that it is appropriate to make the order sought.

Orders

15. I make the following orders:

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.

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Decision last updated: 13 November 2023