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R v Stanley

R v Stanley

Case [2013] NSWCCA 124 28 May 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Stanley [2013] NSWCCA 124
Hearing dates: 2 May 2013
Decision date: 28 May 2013
Before: Macfarlan JA at [1]; Campbell J at [2]; Barr AJ at [3]
Decision:
1. Allow the appeal and quash the order appealed from;
2. Dismiss the application.

Catchwords: CRIMINAL LAW -Crown appeal-order for trial by judge alone- whether discretion miscarried;
CROWN APPEAL- order for trial by judge alone- racial prejudice- order made without evidence- jury prejudice- procedures available to identify and excuse prejudiced jurors- directions to jurors to promote impartial decisions;
APPLICATION FOR ORDER FOR TRIAL BY JUDGE ALONE - apprehension of prejudice from facts of case- whether order justified- whether expert evidence complex- whether complexity of evidence justified order.
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Jury Act 1977
Cases Cited: AK v Western Australia [2008] HCA 8, (2008) 232 CLR 438
Arthurs v State of Western Australia [2007] WASC 182
Brown v The Queen [1986] HCA 11
DAO v R [2011] NSWCCA 183
Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
House v The King (1936) 55 CLR 499
R v Belghar [2012] NSWCCA 86
R v Burrell [2004] NSWCCA 336
R v Fardon [2010] QCA 317
R v Sean Lee King [2013] NSWSC 448
Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517
Texts Cited: "Some Simple Thoughts on Intention" by Richard Buxton QC [1988] Crim LR 484 at 494.
Category: Principal judgment
Parties: Walter Kevin Stanley (Respondent)
Representation: Counsel:
J H Pickering SC (Applicant)
C Smith (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Applicant)
Borthwick & Butler (Respondent)

File Number(s): 2012/ 43158005
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-09-20 00:00:00

Before:

Nicholson SC, ADCJ

File Number(s):

2012/43158

Judgment

Macfarlan JA: I agree with Barr AJ.

Campbell J: I agree with Barr AJ.

Barr AJ: This is an appeal by the Crown under S 5F Criminal Appeal Act 1912 against an order made in the District Court that the respondent, Walter Kevin Stanley be tried by judge alone.

The respondent was committed to the District Court for trial and the hearing was listed to commence on 17 September 2012 at the sittings of the District Court at Moree. By 19 September it was clear that the trial would not be reached at that sittings and would have to be adjourned to a later sittings. It seemed that that might involve a change of venue as well.

There was business to do, however, and the Crown presented an indictment containing three counts which may be summarised as follows-

1. On 9 February 2012 at Moree the respondent intentionally or recklessly inflicted actual bodily harm upon [the complainant] with intent to have sexual intercourse with her;

2. At the same time and place the respondent assaulted [the complainant] and at the time of the assault committed an act of indecency, namely exposing his…

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 Stanley

Details

AGLC: R v Stanley [2013] NSWCCA 124
Case: [2013] NSWCCA 124
Decision Date: 28 May 2013

CaseChat Overview and Summary

The case of R v Stanley involved a Crown appeal against an order for a trial by a judge alone. The accused, Stanley, was facing a serious criminal charge, and the trial judge had ruled that the trial should proceed without a jury due to concerns about potential racial prejudice. The Crown argued that the trial judge's discretion had miscarried and that the concerns about racial prejudice were not substantiated by any evidence. The appeal raised questions about the appropriate circumstances for ordering a trial by judge alone and the processes for identifying and excusing prejudiced jurors.

The legal issues before the court included whether the trial judge had correctly exercised his discretion in ordering a trial by judge alone, and if the concerns about racial prejudice were adequately supported by evidence. The court had to consider the procedures available to identify and excuse prejudiced jurors and whether the trial judge had given appropriate directions to the jurors to promote impartial decision-making. The complexity of the evidence and whether it justified an order for a trial by judge alone were also significant issues.

The court held that the trial judge had not adequately exercised his discretion in ordering a trial by judge alone. There was no evidence of racial prejudice, and the procedures available to identify and excuse prejudiced jurors had not been exhausted. The Crown had an opportunity to cross-examine prospective jurors to identify any bias, and the trial judge had not adequately considered the directions that could have been given to the jury to ensure impartiality. The court found that the concerns about racial prejudice were not substantiated and that the complexity of the evidence did not justify an order for a trial by judge alone. The appeal was allowed, and the case was remitted for a trial by jury.

The final orders of the court were that the Crown's appeal be allowed, the order for a trial by judge alone be quashed, and the case be remitted for a trial by jury. The court emphasised the importance of properly exercising the discretion to order a trial by judge alone and the need for adequate evidence to support such an order. The decision serves as a reminder of the high threshold that must be met to justify a trial without a jury and the importance of ensuring that the procedures for identifying and excusing prejudiced jurors are followed.

Orders