1. Grant leave pursuant to s 132A Criminal Procedure Act 1986 (NSW) to make the application within 28 days of the date fixed for trial.
2. Application for trial by judge alone is refused.
Catchwords:
CRIMINAL PROCEDURE – application for trial by judge alone – where earlier jury was hung – whether trial by judge alone is in the interests of justice – complainant suffering from an intellectual disability – where expert report on the condition of the complainant served after trial – where Crown indicated not all of report would be relied upon – evidence not complex – report does not require complex jury directions – finality not a sufficient reason for finding that a judge alone trial is in the interests of justice – credibility of witness being a central issue favours a jury trial – application for trial by judge alone refused
Solicitors: Office of the Director of Public Prosecutions (Crown) Dillon-Smith Lawyers (Accused)
File Number(s):
2022/354613 & 2022/14569
Publication restriction:
Nil
judgment
The accused stood trial before Yehia J and a jury on 30 September 2024 on two counts of sexually touching a person over the age of ten years and under 16 years contrary to s 66DB(a) of the Crimes Act 1900 (NSW).
On 3 October 2024 Yehia J discharged the jury because they were unable to agree on a verdict in respect of each of the counts.
The matter has been fixed for a further trial in Bega to commence on 2 December 2024 with a one week estimate.
An application has now been made by the accused for leave under s 132A of the Criminal Procedure Act 1986 (NSW) to make a judge alone application within 28 days before the date fixed for the trial, and pursuant to s 132(4) of the Criminal Procedure Act for the accused to be tried by judge alone. The application is supported by an affidavit of the accused’s solicitor, Adam Sumbak, sworn…
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.
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Details
AGLC
R v XY [2024] NSWSC 1472
Case
[2024] NSWSC 1472
Decision Date
CaseChat Overview and Summary
The defendant, XY, was charged with sexual offences and faced trial before a jury. After a lengthy trial, the jury was unable to reach a unanimous verdict, resulting in a hung jury. The complainant in this case suffered from an intellectual disability, and the Crown filed an application for a trial by judge alone. This application arose because the jury could not reach a verdict and because an expert report concerning the complainant's condition was only served after the jury trial concluded. The Crown had indicated that it would not rely on all parts of the report. The issues before the court were whether a trial by judge alone was in the interests of justice, particularly given the complainant's condition and the complexity of the evidence.
The court considered various factors in reaching its decision. It noted that the expert report did not necessitate complex jury directions and that the evidence in the case was not overly complex. The court found that the finality of the proceedings was not a sufficient reason to order a trial by judge alone. Instead, the court emphasised that the credibility of the witnesses, particularly the complainant, was a central issue in the case. Given that the credibility of a witness is generally considered a matter better suited to a jury, the court found that the interests of justice were best served by a trial before a jury.
Consequently, the application for a trial by judge alone was refused. The court concluded that, despite the complainant's intellectual disability and the hung jury, a jury trial would provide a fairer means of resolving the central issue of witness credibility. The case would proceed to a new trial before a jury.