R v Teshabaev - [2023] NSWDC 670

District Court

New South Wales

Medium Neutral Citation: R v Teshabaev [2023] NSWDC 670
Hearing dates: 8 June 2023
Date of orders: 8 June 2023
Decision date: 08 June 2023
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
The application is dismissed.

Catchwords:
CRIME – Notice of Motion for trial by judge alone – Alleged prejudicial evidence and need for interpreter cited as reasons in support of motion – Insufficient evidence to support application.

Legislation Cited:
Criminal Appeal Act 1912 s 5F(3)
Criminal Procedure Act 1986 s 132A
Evidence Act 1995 s 137

Cases Cited:
ArthursvWestern Australia [2007] WASC 182
RvBelghar [2012] NSWCCA 86, [89]-[104]
R v Simmons; Rv Moore (No 4) [2015] NSWSC 258, [83]-[89]
RedmanvR [2015] NSWCCA 110, [ 13]-[16], [22]-[23]

Texts Cited:
Nil.

Category: Procedural rulings
Parties: Crown – R (NSW)
Defendant - Kodirjon Teshabaev
Representation:
Counsel:
Crown – Mr Bicanic, T.
Defendant – Mr Skinner, P.
Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW)
Defendant – Makhoul & Associates

File Number(s): 2020/00352074
Publication restriction: Nil.

Judgment

HIS HONOUR: On 31 May 2023 the accused filed a notice of motion seeking the following order:

“Directions are sought for the leave of the Court under s 132A Criminal Procedure Act 1986 for the accused to apply to be tried by judge‑alone inside the 28 day period before the date fixed for the trial in the District Court; and that it is in the interests of justice to do so under s 132 Criminal Procedure Act 1986.”

This is, in fact, an application under s 132A of the Criminal Procedure Act 1986 (‘CPA’).

The matter is listed for trial commencing on 13 June 2023, that is next Tuesday. Today is Thursday, 8 June 2023. There is only one business day between today and when the matter is listed for trial, Tuesday, 13 June 2023, because Monday, 12 June 2023 is a celebration of the King’s birthday.
Under CPA s 132A(1), an application for an order under CPA s 132 that an accused person be tried by judge alone must be made not less than 28 days before the date fixed for the trial in the District Court except with the leave of the Court.

Curial History

The accused was arrested and interviewed by the police on 11 December 2020. Exhibit 3-3 is a transcript of an electronic record of interview given by the accused to plain clothes Senior Constable Michael Voyez at the Riverstone Police Station on 11 December 2020. He first appeared in the Parramatta Local Court on 12 December 2020. Eventually, the accused was committed for trial by the Local Court at Burwood, to this Court on 28 July 2021. The matter was first mentioned in this Court before Shead SC DCJ on 9 August 2021. The matter was first listed for hearing on or about 3 August 2022.
The matter was then before Harris DCJ. The matter was to be…

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 Teshabaev

Details

AGLC: R v Teshabaev [2023] NSWDC 670
Case: [2023] NSWDC 670
Decision Date: 08 June 2023

CaseChat Overview and Summary

The case of R v Teshabaev involved the accused, Teshabaev, who was facing criminal charges before the court. The dispute centred around the accused's application for the trial to be conducted by a judge alone, rather than a judge and jury. Teshabaev's application was based on claims of prejudicial evidence and the need for an interpreter, which he argued would make it difficult for the jury to fairly assess the case.

The legal issues before the court were whether the evidence presented was sufficient to support the accused's application for a trial by judge alone and whether the reasons provided by the accused were valid grounds for such an application. The court needed to determine whether the prejudicial evidence was indeed likely to unfairly influence the jury and whether the need for an interpreter would substantially impact the jury's ability to fairly consider the case.

The court found that the evidence provided by Teshabaev was not sufficient to support his application for a trial by judge alone. The court concluded that the prejudicial evidence was not so significant as to make it impossible for the jury to follow the directions of the judge and that the need for an interpreter did not preclude the case from being tried before a judge and jury. The court was satisfied that the jury would be able to fairly consider the case with the appropriate directions from the judge.

As a result, the court dismissed Teshabaev's application for a trial by judge alone. The case would proceed with a jury, ensuring that the accused received a fair trial while maintaining the integrity of the judicial process.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Teshabaev [2023] NSWDC 670
Hearing dates:	8 June 2023
Date of orders:	8 June 2023
Decision date:	08 June 2023
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	The application is dismissed.
Catchwords:	CRIME – Notice of Motion for trial by judge alone – Alleged prejudicial evidence and need for interpreter cited as reasons in support of motion – Insufficient evidence to support application.
Legislation Cited:	Criminal Appeal Act 1912 s 5F(3) Criminal Procedure Act 1986 s 132A Evidence Act 1995 s 137
Cases Cited:	ArthursvWestern Australia [2007] WASC 182 RvBelghar [2012] NSWCCA 86, [89]-[104] R v Simmons; Rv Moore (No 4) [2015] NSWSC 258, [83]-[89] RedmanvR [2015] NSWCCA 110, [ 13]-[16], [22]-[23]
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Crown – R (NSW) Defendant - Kodirjon Teshabaev
Representation:	Counsel: Crown – Mr Bicanic, T. Defendant – Mr Skinner, P. Solicitors: Crown – Office of the Director of Public Prosecutions (NSW) Defendant – Makhoul & Associates
File Number(s):	2020/00352074
Publication restriction:	Nil.