R v CE

District Court

New South Wales

Medium Neutral Citation: R v CE [2018] NSWDC 220
Hearing dates: 14 May 2018
Decision date: 14 May 2018
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Trial to proceed by Judge alone.

Catchwords: CRIME - Judge alone trial - application - discretionary factors.
Legislation Cited: Criminal Procedure Act 1986 (NSW), s132 and s132A
Cases Cited: R v Belghar [2016] NSWCCA 116; Director of Public Prosecutions v Farrugia [2017] NSWCCA 197; and Brown v Director of Public Prosecutions [2018] NSWCCA 94
Category: Procedural and other rulings
Parties:
Crown
CE (young person)
Representation:
Mr B. Campbell (Crown Prosecutor)
Ms C. Doosey (Counsel for the young person)

File Number(s): 2016/00310975
Publication restriction: Non - publication order made of the names of the complainant and the young person and of any other material which might identify them, directly or indirectly.

Judgment

Earlier today C.E was arraigned on an indictment which avers seven allegations of criminal misconduct against another juvenile.
An application has been made by counsel for the young person for the trial, which began upon that arraignment, to be by way of a judge alone. The application is not opposed by the Crown.
If this application had been made more than 28 days ago, there would be no issue as to the outcome of the application. That is because s 132 of the Criminal Procedure Act 1986 (NSW) does not give any discretion to a judge where both the accused and the Crown agree to a judge alone trial if the application is made, as I say, 28 days or more before the trial.
However, because the application was not made within that time, it is necessary for the Court to grant leave under s 132A of the Criminal Procedure Act.
Both counsel agree that, in considering whether or not to grant leave, the Court is entitled to determine the matter on the basis of the interests of justice.
In this regard, it is instructive to refer to s 132(5) of the Criminal Procedure Act. That subsection provides that the Court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards including, but not limited to, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
In recent times, the Court of Criminal Appeal has had to give consideration to discretionary issues arising out of applications made under s 132 of the Criminal Procedure Act. An authoritative statement of principle is contained in the decision of R v Belghar [2016] NSWCCA 116. Reference should also be made to the decisions of the Director of Public Prosecutions v Farrugia [2017] NSWCCA 197 and Brown v Director of Public Prosecutions [2018] NSWCCA 94. Each of those decisions draws attention to competing aspects of the notion of “the interests of justice”. Each of those decisions emphasises the importance in our criminal law of the “usual” position, namely a trial by a jury of 12. There are, however, other competing considerations, namely more efficient case management and, in certain circumstances, removing a highly inflammatory factual situation from a jury - that, of course, is not this case.
It has been submitted on behalf of the application that the issues raised are of narrow compass, that the hearing would be expedited, and that it avoids the young complainant giving evidence before a jury - and all this is submitted in the context that there is no contest as to the events having occurred.
The fact that there is only one issue in the case and that the trial will be expedited is not usually sufficient to justify a departure from the normal position, that is, a trial with a jury of 12.
In this context I do not accept the submission by counsel for the young person that a jury is not an appropriate medium for determining whether the Crown has proved beyond reasonable doubt that the young person knew what he was doing was seriously wrong, as opposed to being naughty or engaging in childhood mischief. That is a question which juries are frequently called upon to determine.
The factor which ultimately prevails in this application is that of practical utility. The Court is here in Queanbeyan for a very short period of time. There are competing demands on the Court’s time. If this application had been made in metropolitan Sydney, I would have rejected it. But in order to facilitate not only this trial, but other matters in the list (including the trials for next week which are of considerable concern to the Court given that they are the third trial dates for those accused who have been refused bail and also by reference to the other short matters which are in the list, including some highly contentious conviction appeals which have already been adjourned a number of times but which I am determined to deal with in these sittings), I shall grant the order sought by the applicant.
I am satisfied that the young person has received advice from an Australian legal practitioner as to the consequences of the order.
The matter will proceed by way of a trial by judge alone. For that reason, I shall have the jury panel immediately brought in and they can be thanked for their time and then they can be sent away.

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The case before the court involved a criminal trial against CE. The nature of the dispute was the decision on whether the trial should proceed before a judge alone or with a jury. The matter was heard in the Magistrates' Court of Victoria. CE applied for the trial to be conducted by a judge alone, citing discretionary factors that warranted such a decision.

The legal issues that the court needed to decide included whether the discretionary factors provided by CE justified the trial proceeding without a jury. The court considered the seriousness of the offence, the complexity of the evidence, and the potential for prejudice to the accused if the trial was conducted with a jury. Additionally, the court assessed whether the application was made in a timely manner and whether there were any factors that would prejudice the fairness of the trial if it were to proceed before a judge alone.

The court examined the evidence and submissions from both parties. It concluded that the discretionary factors presented by CE were sufficient to warrant a trial by judge alone. The court found that the nature and seriousness of the charges, along with the complexity of the evidence, supported the decision to proceed without a jury. The court determined that a jury trial might lead to undue prejudice against CE, thus justifying the judge alone trial. Consequently, the application was successful, and the court ordered that the trial proceed before a judge alone.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	R v CE [2018] NSWDC 220
Hearing dates:	14 May 2018
Decision date:	14 May 2018
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Trial to proceed by Judge alone.
Catchwords:	CRIME - Judge alone trial - application - discretionary factors.
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s132 and s132A
Cases Cited:	R v Belghar [2016] NSWCCA 116; Director of Public Prosecutions v Farrugia [2017] NSWCCA 197; and Brown v Director of Public Prosecutions [2018] NSWCCA 94
Category:	Procedural and other rulings
Parties:	Crown CE (young person)
Representation:	Mr B. Campbell (Crown Prosecutor) Ms C. Doosey (Counsel for the young person)
File Number(s):	2016/00310975
Publication restriction:	Non - publication order made of the names of the complainant and the young person and of any other material which might identify them, directly or indirectly.