R v Weismantel (No 4) - [2015] NSWDC 389

District Court

New South Wales

Medium Neutral Citation: R v Weismantel (No 4) [2015] NSWDC 389
Hearing dates: 26 June 2015
Date of orders: 26 June 2015
Decision date: 26 June 2015
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Leave granted
Order that accused be tried by Judge alone
Catchwords:
CRIMINAL LAW – Practice and procedure – Application for leave to apply for trial by Judge alone – Accused putting Crown to proof – Evidence of most witnesses to be adduced via statements – No issue of credit – No factual issue requiring the application of objective community standards – Issue of the accused’s mental state and his ability to give attention to a lengthy trial – Need for a form of trial that meets the requirements of an accused’s medical condition
- Accused may not recollect why or in what circumstances or how the offence was committed – In the interests of justice that reasoned explanation of why or why not the accused might be guilty of the offence
CRIMINAL LAW – Practice and procedure – Application for leave to apply for trial by Judge alone – Question of whether the harm inflicted upon the victim was grievous bodily harm or actual bodily harm is necessarily a matter for a jury – Judge with some experience in the field can adequately determine that matter as well as a jury can or ought or would
Legislation Cited: Criminal Procedure Act 1986
Mental Health Act 2007
Cases Cited: R v Belghar [2012] NSWCCA 86
R v Dean [2013] NSWSC 661
R v King [2013] NSWSC 448
Category: Procedural and other rulings
Parties: Blake Weismantel (Applicant/Accused)
Crown (Respondent/Crown)
Representation:
Counsel:
Mr S Schaudin (Applicant/Accused)
Mr P Kerr (Respondent/Crown)
Solicitors:
Sydney Criminal Lawyers (Applicant/Accused)
Director of Public Prosecutions (NSW) (Respondent/Crown)

File Number(s): 2014/94525
Publication restriction: No

Judgment

HIS HONOUR: This is an application for leave pursuant to s 132A(1) of the Criminal Procedure Act 1986. The accused makes an application out of time for trial by Judge alone. Such an application must be made 28 days before the day fixed for the trial in this Court unless the Court otherwise grants leave. If that application be successful, there will follow an application under s 132(4) of the same Act for leave to have the matter tried by a Judge alone as the prosecutor does not consent to the making of an order for trial by Judge alone. It is convenient to deal with both applications at the one time.
On 23 September 2014, the accused was committed for trial by the Downing Centre Local Court on a number of charges. Six of those charges arose out of events which occurred on 23 September 2013. The current matter arose out of an event which occurred on 31 December 2013. I shall refer to the current matter as the second trial. The first trial is clearly a reference to the matters alleged against the accused as occurring on 23 September 2013. As far as 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 Weismantel (No 4)

Details

AGLC: R v Weismantel (No 4) [2015] NSWDC 389
Case: [2015] NSWDC 389
Decision Date: 26 June 2015

CaseChat Overview and Summary

The case of R v Weismantel (No 4) involved the accused, Weismantel, who was applying for leave to apply for a trial by judge alone in the Supreme Court of New South Wales. Weismantel was facing charges relating to an alleged assault on a person, and the primary dispute was whether the harm inflicted was grievous bodily harm or actual bodily harm. Additionally, the accused was seeking to have the trial conducted without a jury due to his inability to recollect the circumstances of the offence and his medical condition that required a form of trial conducive to his needs.

The legal issues before the court included whether the accused could be compelled to give evidence, the admissibility of witness statements, the necessity of a jury to determine the severity of the harm inflicted, and whether the accused's mental state and medical condition warranted a trial by judge alone. The court had to weigh the principles of fairness and justice in the criminal trial process against the accused's specific needs.

The court granted leave for the accused to apply for a trial by judge alone, noting that the evidence of most witnesses would be adduced via statements, and there was no issue of credit or factual dispute requiring the application of objective community standards. The court held that the harm inflicted upon the victim was a matter that could be adequately determined by a judge with experience in the field, and the accused's inability to recollect the circumstances of the offence and his medical condition warranted a trial by judge alone to ensure a fair trial. The court concluded that it was in the interests of justice to allow a reasoned explanation of why or why not the accused might be guilty of the offence, given his unique circumstances.

The final order of the court was that Weismantel be tried by the judge alone, recognising the necessity of accommodating his medical condition and cognitive limitations in the interest of a fair trial.

Orders

Orders of the court

Leave granted

Order that accused be tried by Judge alone

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Weismantel (No 4) [2015] NSWDC 389
Hearing dates:	26 June 2015
Date of orders:	26 June 2015
Decision date:	26 June 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Leave granted Order that accused be tried by Judge alone
Catchwords:	CRIMINAL LAW – Practice and procedure – Application for leave to apply for trial by Judge alone – Accused putting Crown to proof – Evidence of most witnesses to be adduced via statements – No issue of credit – No factual issue requiring the application of objective community standards – Issue of the accused’s mental state and his ability to give attention to a lengthy trial – Need for a form of trial that meets the requirements of an accused’s medical condition - Accused may not recollect why or in what circumstances or how the offence was committed – In the interests of justice that reasoned explanation of why or why not the accused might be guilty of the offence CRIMINAL LAW – Practice and procedure – Application for leave to apply for trial by Judge alone – Question of whether the harm inflicted upon the victim was grievous bodily harm or actual bodily harm is necessarily a matter for a jury – Judge with some experience in the field can adequately determine that matter as well as a jury can or ought or would
Legislation Cited:	Criminal Procedure Act 1986 Mental Health Act 2007
Cases Cited:	R v Belghar [2012] NSWCCA 86 R v Dean [2013] NSWSC 661 R v King [2013] NSWSC 448
Category:	Procedural and other rulings
Parties:	Blake Weismantel (Applicant/Accused) Crown (Respondent/Crown)
Representation:	Counsel: Mr S Schaudin (Applicant/Accused) Mr P Kerr (Respondent/Crown) Solicitors: Sydney Criminal Lawyers (Applicant/Accused) Director of Public Prosecutions (NSW) (Respondent/Crown)
File Number(s):	2014/94525
Publication restriction:	No