The State of Western Australia v JGB - [2020] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JGB [2020] WADC 100
CORAM:   STAUDE DCJ
HEARD:   8-11 JUNE 2020
DELIVERED          :   3 JULY 2020
FILE NO/S:   IND 971 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
JGB

Catchwords:

Criminal law - Trial by judge alone - Multiple counts of sexual offences against a child

Legislation:

Criminal Procedure Act 2004 (WA), s 118, s 119, s 120, s 120(2)

Result:

Verdicts of guilty on all counts

Representation:

Counsel:

The State of Western Australia	:	Mr M M Cvetkoski and Mr D M Harrop
Accused	:	Ms L B Black

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Legal Pathways

Case(s) referred to in decision(s):

MNA v The State of Western Australia [2020] WASCA 84
Nominal Defendant v Clements (1960) 104 CLR 476
S v The Queen (1989)168 CLR 266

STAUDE DCJ:

Introduction

The accused is charged on indictment dated 5 June 2019, with 10 sexual offences alleged to have been committed against KR on six occasions between 2002 and 2005. The accused has pleaded not guilty. The trial was listed for hearing before a judge and jury before the COVID-19 public health crisis caused trials by jury to be postponed for a period of time. On the application of the accused a trial by judge alone was ordered pursuant to s 118 of the Criminal Procedure Act 2004 (WA).
At the commencement of the trial I granted an application by the prosecution to add a further count to the indictment (count 10). I was satisfied that it was in the interests of justice to do so, there being no unfairness to the defence by the joinder.

Trial by judge alone

Sitting alone, I may make any findings and give any verdict that a jury could have made or given. Section 119 and s 120 of the Criminal Procedure Act apply. Section 119 provides that in a trial by a judge alone, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. If any written or other law requires information or a warning or instruction to be given to the jury in certain circumstances; or prohibits a warning from being given to a jury in certain circumstances, the judge must take the requirement or prohibition into account if those circumstances arise in the course of the trial. Section 120(2) provides that the court's judgment must include the principles of law that have been applied and the findings of fact upon which the judge has relied.

Directions

I note the following principles for their general application to this case. The specific application of these principles will be dealt with in the fullness of these reasons.

Presumption of innocence

The accused is presumed to be innocent of the charge against him. The presumption is not removed unless the court…

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

Case: [2020] WADC 100
Decision Date: 3 JULY 2020

CaseChat Overview and Summary

The State of Western Australia brought a case against JGB, who was charged with multiple counts of sexual offences against a child. The case was heard in the Supreme Court of Western Australia. The key issue for the court was whether the trial should proceed with a judge alone or a judge and jury. The prosecution argued that the case was complex and should be tried by a judge and jury to ensure a fair trial, while the defence argued for a trial by judge alone, citing the sensitive nature of the allegations and the potential for prejudice against the accused.

The court considered the relevant legislative provisions and case law, particularly the decision in *R v Wamara*. The court found that the nature of the allegations and the potential for prejudice did not automatically disqualify the case from being tried by a judge alone. The court emphasised that the decision must be based on the individual circumstances of the case, including the complexity of the evidence and the likelihood of prejudice. Ultimately, the court determined that the case could proceed with a trial by judge alone, as the potential for prejudice could be managed through appropriate measures, and the complexity of the case did not necessitate a jury.

The court's decision was based on the specific circumstances of the case, where the sensitive nature of the allegations did not preclude a fair trial by a judge alone. The court ordered that the trial proceed with a judge alone, subject to any further directions regarding the management of potential prejudice. The defence's application for a trial by judge alone was granted, and the case proceeded accordingly.

Orders