R v Warwick (No.21)
[2018] NSWSC 654
•11 May 2018
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Warwick (No.21) [2018] NSWSC 654 Hearing dates: 11 May 2018 Date of orders: 11 May 2018 Decision date: 11 May 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Order pursuant to s 132(1) of the Criminal Procedure Act 1986 that the accused be tried by a Judge alone.
(2) Grant leave, pursuant to s 132A(1) of the Criminal Procedure Act 1986, for an application by the Accused for an order for trial by judge alone to be made notwithstanding that it is less than 28 days before the date fixed for trial..Catchwords: CRIME – application for trial by a judge alone – s 132(1) of the Criminal Procedure Act 1986 – trial involving historical offences including four counts of murder – where consent by prosecution to order for judge alone trial – leave granted to apply out of time – order made Legislation Cited: Criminal Procedure Act 1986
Supreme Court Rules 1970Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown
Leonard John Warwick (Accused)Representation: Counsel:
Solicitors:
K McKay / G Christofi (Crown)
A R Conolly (Accused)
Director of Public Prosecutions (Crown)
A R Conolly & Co (Accused)
File Number(s): 2015/222068 Publication restriction: Not to be published until further order of the Court. Non publication order lifted on 14 February 2020.
EX TEMPORE Judgment
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On 3 March 2017, the Accused was arraigned on an indictment dated that day in respect of 24 offences relating to conduct which occurred between 21 February 1980 and 21 July 1985. To each of those counts he pleaded not guilty.
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A trial before jury was initially fixed to commence on 19 February 2018. As a consequence of a successful application for an adjournment, the trial was fixed to commence on 14 May 2018.
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In February 2018 the accused's present solicitors were initially instructed. Since that time they have been attending to obtaining instructions with respect to the proceedings; issuing subpoenas for production of documents; examining the Crown brief; and further dealing with a variety of pre-trial applications.
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The proceedings before the Court are factually complex proceedings and involve a range of alleged offences arising from seven events. It is entirely understandable in those circumstances that the accused was not in a position to instruct his solicitors to apply for trial by Judge alone before 8 May 2018, which is the day upon which a Notice of Motion seeking such a trial was first filed.
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An application for a trial by Judge alone is provided for in s 132 of the Criminal Procedure Act 1986 (“Procedure Act”). However, s 132A of the Procedure Act provides that any application for a trial by Judge alone must be made not less than 28 days before the date fixed for the trial, except with leave of the Court.
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Accordingly, it is necessary for the accused to have leave to make the application for trial by Judge-alone because less than 28 days remains before the date due for the trial, being 14 May 2018.
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Having regard to the matters that I have recited above, including the factual complexity of the trials and the need for solicitors to attend to a range of matters; and having regard to the fact that I am assured by the solicitor for the Accused that this motion was brought on at the first conveniently available time, it is appropriate, in my view, that I grant leave for the application to be brought on 8 May 2018, notwithstanding that it is within the minimum time period before the trial is due to commence.
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In granting that leave I keep in mind that the Crown does not raise any opposition to the grant of leave and does not submit that it is prejudiced in any way by the lack of the minimum period of notice.
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Consequent upon the filing of the Motion seeking a trial by Judge alone, as is required by Part 75, r 3H(1)(b) of the Supreme Court Rules 1970, the Accused has signed a Notice of Election in the prescribed form. That Notice records that the accused elects to be tried by a Judge alone in respect of each of the offences alleged in the Indictment. The Accused also acknowledges that before making this election, he has sought and received advice in relation to it from his solicitor.
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Section 132(6) of the Procedure Act requires that I must not make a trial by Judge alone order unless I am satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. In the light of the accused's acknowledgment in the Notice of Election that he has received such advice, I am so satisfied.
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The Notice of Election (Exhibit PTU) has also been endorsed by the Deputy Senior Crown Prosecutor on behalf of the Director of Public Prosecutions indicating that the Director of Public Prosecutions consents to the election. Since the Notice of Election has been filed, the requirement of s 132(6) of the Procedure Act has been satisfied. Since the Director of Public Prosecutions agrees to the accused being tried by Judge alone, I am obliged by the provisions of s 132(2) of the Procedure Act to make an order for a trial by Judge alone.
Orders
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Accordingly, upon the application of the accused, as agreed to by the Prosecutor, I make the following orders:
I order pursuant to s 132(1) of the Criminal Procedure Act 1986 that the accused be tried by a Judge alone.
I grant leave, pursuant to s 132A(1) of the Criminal Procedure Act 1986, for an application by the Accused for an order for trial by judge alone to be made notwithstanding that it is less than 28 days before the date fixed for trial.
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Amendments
18 February 2020 - Non publication order lifted on 14 February 2020.
Decision last updated: 18 February 2020
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