CHRISTOV, Ivan v R

DECISION: (ii) Leave to appeal against sentence be granted.

CATCHWORDS: CRIMINAL LAW - appeal - election for judge alone trial - whether, as a matter of fact, election filed with court on a day prior to the date fixed for trial - discussion of legislative provisions

Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1919 LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995 Supreme Court Rules

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 Quartermaine v R [1980] HCA 29; (1980) 143 CLR 595 R v Coles (1993) 31 NSWLR 550 CASES CITED : R v Doff [2005] NSWCCA 119 R v Fisher (Court of Criminal Appeal, Gleeson CJ, 22 May 1995, unreported) R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union [1951] HCA 3; (1951) 82 CLR 208 R v Perry (1993) 29 NSWLR 589

PARTIES: Ivan Christov (Applicant) Regina (Respondent)

COUNSEL: T Game SC / S Buchen (Applicant) D Arnott SC (Respondent)

SOLICITORS: Ford Criminal Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT DATE OF DECISION: 17 November 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Christov [No 2] [2006] NSWSC 1179

IN THE COURT OF CRIMINAL APPEAL 2006/5216

GILES JA ROTHMAN J McCALLUM J

26 JUNE 2009 CHRISTOV, Ivan v R Judgment 1 GILES JA: The questions in the conviction appeal were whether the appellant elected for trial by the Judge alone before 28 August 2006 and, if he did not, whether for that reason there was not a trial according to law. 2 I agree with Rothman J's analysis of the evidence to the conclusion that a duly signed election was filed before 28 August 2006. Like his Honour, I accept that each of the witnesses was giving evidence to the best of his or her recollection. But the recollections could not all be correct, and facts which are objectively established or call for acceptance on the probabilities guide the analysis to that conclusion. 3 Those facts include - - that the election form was created on the morning of 22 August 2006; - that there was a conference with Mr Christov on that day, at which he agreed to a judge alone trial; - that Mr Howard signed and dated the election form on 23 August 2006 and it is most unlikely that he would have done so if the form were in blank; and - that on 24 August 2006 the Associate to Kirby J advised the Sheriff's Officer that the trial would be a judge alone trial. 4 Regard to these matters, and to the absence of concern when the election form was dealt with on the morning of 28 August 2006 notwithstanding that Mr Howard and Ms Nash were aware that an election should have been made prior to that date, strongly suggests that Mr Christov did not just agree to a judge alone trial at the conference on 22 August 2006, but signed the form which was given to Mr Howard on the following day and, despite Mr Hammond's evidence, was then filed. 5 The file note "VH to prepare document for signature by Crown" can readily enough be understood as a reference to the form created that morning and then to hand, and Ms Havryliv's letter of 24 August 2006 stating that an application for a judge alone trial had been made and the Crown had agreed most naturally refers to an election consummated by a duly signed form. 6 The submissions extended to whether there could have been an election for the purpose of s 132 of the Criminal Procedure Act 1986 if the form was signed before, but not filed until, 28 August 2006, and to the present state of the authorities on the consequence of failure to elect before the date fixed for trial. It is not necessary to consider these matters, and I say nothing of them. 7 I agree with Rothman J's reasons in relation to the sentence appeal, and with the orders proposed by his Honour. 8 ROTHMAN J: In the early morning of 11 January 2004, Ms Lynette Phillips was found in the front bedroom of her home at Engadine, strangled to death. On 22 September 2006, Kirby J, in a trial by Judge alone, determined that Mr Ivan Christov was guilty of the murder of Ms Phillips. Mr Christov had pleaded not guilty to murder but guilty of manslaughter, which plea the Crown did not accept in satisfaction of the indictment. Mr Christov appeals the conviction. 9 No ground of appeal relates to any error of Kirby J, any finding of fact, any miscarriage of justice or any procedural irregularity in the trial. The sole ground of appeal against conviction is that the election for a Judge alone trial, admittedly made by Mr Christov, was not filed before the date fixed for the trial and therefore did not comply with the provisions of the Criminal Procedure Act 1986 and the Supreme Court Rules. 10 Further, Mr Christov seeks leave to appeal the sentence imposed by Kirby J on 17 November 2006 at which time his Honour imposed a sentence of 23 years' imprisonment, expiring on 11 January 2027, with a non-parole period of 17 years, commencing on 12 January 2004. The ground upon which Mr Christov relies for leave to appeal the sentence and, if leave be granted, on the appeal against the sentence, is that the sentencing judge erred by failing to take into account the utilitarian benefit of the manner in which Mr Christov conducted his trial. 11 The appeal against conviction turns on two issues: whether as a matter of fact the election for a Judge alone trial was filed before 28 August 2006; and whether, if the election document were not to have been filed prior to 28 August 2006, there has been a trial according to law. The application for leave to appeal sentence (and the appeal, if leave be granted) turns on an analysis of the sentencing discretion exercised by his Honour and whether a lesser sentence is warranted. Requirements of Legislation and Rules 12 In order to understand the context in which both the issues of fact and law relating to the conviction appeal must be decided, it is necessary to recite the relevant provisions. They are:

" 130 Trial proceedings after presentation of indictment and before empanelment of jury (1) In this section, 'court' means the Supreme Court or District Court. (2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled: (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial."

" 131 Trial by jury in criminal proceedings Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part."

" 132 Trial by Judge in criminal proceedings (1) An accused person in criminal proceedings in the Supreme Court or District Court must be tried by the Judge alone if: (a) the person so elects in accordance with this section, and (b) the Judge is satisfied that the person, before making the election, sought and received advice in relation to the election from an Australian legal practitioner. (2) An election may not be made unless: (a) all other accused persons in the trial also elect to be tried by the Judge alone, and (b) each election is made in respect of all offences with which the accused persons in the trial are charged. (3) An election may be made only with the consent of the Director of Public Prosecutions. (4) An election must be made before the date fixed for the person's trial in the Supreme Court or District Court. (5) An accused person who elects to be tried by the Judge alone may, at any time before the date fixed for the person's trial, subsequently elect to be tried by a jury. (6) Rules of court may be made with respect to elections under this section."

" 75.3H Election under s132 of Criminal Procedure Act 1986 (1) An election under section 132 (1) or (5) of the Criminal Procedure Act 1986 shall: (a) be in the prescribed form, (b) in the case of an election under section 16 (1)-be endorsed with the consent of the Director for Public Prosecutions given under section 16 (3), and (c) be filed before the date fixed for the trial. (2) Consent of the Director of Public Prosecutions may be endorsed under subrule (1) (b) by that Director or an officer authorised in writing by that Director to give such consents."

13 The court file, in the proceedings before Kirby J, had a document entitled Form 74AJ in the following form:

14 As can be seen, the accused's signature appears on the document and is witnessed, but the accused's signature (and possibly the document) is not dated. The only date appearing on the document is a date completed by the Deputy Senior Crown Prosecutor, being a person authorised in writing by the Director of Public Prosecutions to consent to the election. It should also be noted that the document in question was tendered before Kirby J on 28 August 2006, the day fixed for the commencement of the trial and the transcript records the process relevantly, in the following terms: "CROWN PROSECUTOR: … I present an indictment against the accused. I also tender with that, your Honour, an election under s 132 of the Criminal Procedure Act that the matter be a proceeding by judge alone (handed up) …

HIS HONOUR: So far as the election to proceed by judge alone … I think usually that is just placed with the file rather than made an exhibit, although possibly it is handy to make it an exhibit, so I will make it Exhibit A.

EXHIBIT #A ELECTION UNDER SECTION 132 OF THE CRIMINAL PROCEDURE ACT TENDERED, ADMITTED AND MARKED." It should also be noted, if not obvious in the copy of Exhibit A that is included above, that the document was stamped with a seal of the Supreme Court of New South Wales. 15 Lastly, although it is not an issue of significance in these proceedings, it should be noted that s 132 of the Criminal Procedure Act is truly an election, being a choice between two inconsistent rights: the right to a trial by jury; and the right to a trial procedure without a jury. The Date of Filing the Election 16 There is no issue, in these proceedings or otherwise, that Mr Christov elected for a Judge alone trial. The signature on the election, copied above, is Mr Christov's signature and is witnessed by his legal practitioner. The only issue, which Mr Game SC, who appeared with Mr Buchen as counsel for Mr Christov, submits is determinative, is the date upon which it was filed with the court, and subsidiary thereto, the date that Mr Christov signed it. 17 Evidence was adduced from each of the relevant and available legal practitioners concerned with the trial and the Associate to Justice Kirby provided a sworn statement, which evidence is also before the Court. Mr Christov was not called and did not give evidence as to the date upon which he signed the Election Form or the date upon which, to his knowledge, it was given to his legal practitioners and/or filed with the Court. Otherwise, each of the legal practitioners involved in the proceedings, appearing either for Mr Christov or the Crown, gave evidence and was cross-examined. 18 The evidence of each of those witnesses is, at least in part, inconsistent with the evidence of other witnesses. I make no criticism of the witnesses, who, it was obvious, were giving their best recollection of events. Apart from the passage of time between the events in question and the requirement to recall the events, each witness is a legal practitioner with a busy practice and, no doubt, would have had some difficulty in recalling the dates upon which events occurred and the details of the events in question. Mr Christov, on the other hand, would have had less difficulty, given the significance of the events to him and the unusual nature of them. 19 Counsel for Mr Christov explained his failure to give evidence on these factual issues by referring to his obvious interest in the outcome of the proceedings and the motive for him to inform the Court that the election did not occur until 28 August 2006. Such an explanation assumes that the evidence he would have given would have been to that effect. The difficulty with such an assumption is manifest and is self-defeating. There is no doubt that if his evidence were to be consistent with that suggestion, it would need to be treated cautiously. But, especially after cross-examination, there is no basis upon which we can assume that it would have been to that effect. Nevertheless, as will be seen, it is unnecessary to determine whether an inference should be drawn from Mr Christov's failure to give evidence. 20 Ms Garrett, the Associate to Justice Kirby, gave evidence that was uncontroversial. On 15 August 2006, a readiness hearing occurred before Kirby J. It is the practice of Kirby J (which practice occurred on this occasion) that there be a "check list" of matters that would be raised with counsel in a criminal hearing, for the purpose of ascertaining and determining the proper conduct of the proceedings. The Associate's note, properly construed, was in or to the effect that counsel had indicated to the Court that, if the trial were to be conducted by a Judge alone, its estimated duration would be one week only. Whereas if the trial were to be conducted with a jury, its duration would be up to four weeks. Counsel at the readiness hearing indicated that there was a possibility of a Judge alone trial, which would be advised to the Court "next week". 21 At 10.15am on Thursday 24 August 2006, the Associate rang the Sheriff's Officer at Darlinghurst Court complex and advised the Officer that Justice Kirby would be sitting in Court 6 on Monday 28 August 2006 as a "Judge alone". The starting time was fixed to be "not before 11am". 22 Sometime in the week commencing 21 August 2006, the Associate was informed that the trial would be proceeding by Judge alone. On 25 August 2006, she telephoned the Sheriff's office confirming that there would be a late start on Monday 28 August and that the jury panels would not be required and should be discharged. The paperwork cancelling the jury panels for the Supreme Court, sitting at Darlinghurst, for Monday 28 August 2006, is before the Court. 23 On 28 August 2006, there was additional delay in the commencement of the proceedings, the delay being at the request of counsel for the accused who, on the recollection of the Associate, needed more time with their client. 24 Ms Garrett, who was not cross-examined, had been, at the time of the compilation of the statement, a Judge's Associate in the Supreme Court for the past 22 years, the last 9 of which had been as Associate for Justice Kirby. She does not recall from where the Election Form, which was tendered, derived, i.e. whether it was removed from the court file and tendered or whether the Crown brought it to Court. She swears to the fact that she always has a Supreme Court seal with her in Court, which is in or to the same effect as that endorsed on the form. She remarks as to the possibility that the form was stamped once admitted as Exhibit A. 25 The evidence before the Court is that there are a number of seals of the Supreme Court used by the Court, particularly by the Registry and by Associates. Associates have a seal of the kind affixed to the Election Form. They also have a seal for the purpose of marking a document "Filed in Court", which must be completed with the date and initial of the Associate. The Registry also uses a stamp of the kind affixed to the Election Form. It should be noted that the usual course would be that, if a document were to be filed in Court, it would be stamped with the Filed in Court stamp and the date fixed thereto. 26 Further, it would be usual, although not universal, that a document filed in the Registry would have affixed to it a stamp that included the date of its filing. A document provided to a Judge's Associate, as distinct from provided to the Registry, prior to the day of the hearing, would generally bear a stamp of the kind affixed to the Election Form in this case. Further, it should be noted, that a document once tendered would generally not be altered, other than in accordance with a direction noted on the record (i.e. on transcript). For example, an exhibit may be altered because a witness marks a particular place on a map or plan, or circles a particular identified person, or the like. Likewise an exhibit may be altered as described by a judge during the course of a trial. 27 As noted, the Election Form was stamped. If it were stamped after it had been tendered, that would be an unusual course and would have required the Associate to alter an exhibit in a manner that was not noted in the proceedings. On the other hand, if the Crown had, during the course of the trial, retrieved the document from the court file, for the purpose of its tender, it would, ordinarily, have borne a stamp as this did. 28 The above analysis of the evidence of Ms Garrett, and the practice of the Court, does not fully answer the factual issue before this Court. Particularly because of the delayed commencement time, the document could have been stamped on 28 August 2006, returned to the Crown and then tendered. 29 The remainder of the evidence is, either in affidavit form or in oral testimony, the recollection of the various legal practitioners, together with a series of documents contemporaneously recording the events in question or ancillary events that provide an insight into the probability of relevant events occurring. 30 Because of the possible effects of s 130 of the Criminal Procedure Act, it may be necessary to recite some uncontroversial earlier events. The trial before Kirby J was a retrial. The original trial date was set in or about July 2005 and, on 4 July 2005, the trial date was vacated by order of Studdert J. The reconvened trial date was again vacated and the matter was adjourned for call-over. On 6 February 2006, a trial commenced before Newman AJ and a jury. On 7 February 2006, the jury was discharged and on 8 February 2006, a retrial commenced before Newman AJ. On 14 February 2006, Mr Christov withdrew instructions from his then counsel and Ms Nash appeared, the next day, 15 February 2006, for Mr Christov. 31 An application was made for the discharge of the second jury. On 16 February 2006, the jury was discharged and a new trial date was fixed, being 22 February 2006. When the proceedings next came before the Court on 22 February 2006, Newman AJ vacated the trial date and adjourned the matter to 1 March 2006. On 1 March 2006, the matter was adjourned to the call-over list and on 2 June 2006, the Court confirmed a trial date of 28 August 2006. 32 On 15 August 2006, as already stated, the matter was before the Court for a readiness hearing. The day prior thereto, 14 August 2006, a discussion occurred between the Crown Prosecutor in the trial, Mr Howard, his instructing solicitor Mr Hammond and Ms Nash, counsel for Mr Christov. That conference discussed the possibility of an election for a Judge alone trial. There are discrepancies in the various versions of the discussion. The differences in the terms of the discussion, in my view, are not critical. 33 Ms Nash recalls that her understanding of the requirements for an election were that an election must be made before the trial judge was known. As at 14 August 2006, it would have been known (because of the listing on the next day) that the hearing was to occur before Kirby J. However, the misunderstanding as to the requirement for an election is not wholly unbelievable. Authority suggests that a purpose of the requirements for election is to ensure that parties do not have the capacity to "judge shop", i.e. determine whether to embark on a Judge alone trial only in circumstances where particular judges are hearing the matter. The misunderstanding of the requirements by Ms Nash, if it were so, is a misunderstanding, at least, consistent with the previously stated purpose of the legislative requirements. 34 Mr Howard, the Crown Prosecutor, testifies that Ms Nash had informed him that an election, if made, would need to be filed before the trial date and denied any statement by Ms Nash which reflected a misunderstanding of the requirements. Ms Nash does not deny, but cannot recall, informing the Crown Prosecutor of the requirements of the rule. The only relatively contemporaneous note, taken by Mr Hammond, who was instructing Mr Howard for the Crown, reflects that the Crown Prosecutor had discussed with the Police, on 14 August 2006, a request, by then already made, by defence counsel, for a Judge alone trial. 35 As already stated, at the readiness hearing before Kirby J, the Crown Prosecutor made clear that he was giving consideration to a Judge alone trial and would be in a position to agree, or otherwise, early in the following week. The transcript records the Crown explaining the reasons therefor and undertaking to inform his Honour's Associate when a decision is reached. Later that day, on 15 August 2006, Ms Nash and Ms Havryliv, counsel and solicitor for Mr Christov respectively, visited Mr Christov at the Metropolitan Remand and Reception Centre (MRRC). Initially, Ms Nash did not recall such a conference and, to some degree, seems to have conflated the events of 15 August 2006 and 22 August 2006. 36 Ms Nash's diary carried no note of a visit to MRRC or a conference with Mr Christov for that date. Mr Christov was not in attendance at the pre-trial hearing before Kirby J. There is, however, a note of Ms Havryliv of that meeting and it is to this effect: "Conference MRRC 15 August 08

Nash informed Christov of call-over before SC and Kirby J.

Obtaining instruction on printout of criminal history.

Lengthy criminal history. CN took written instructions on each page.

Crown is considering. Will agree to judge alone only on the proviso that history is put to the Court.

Christov prefers a jury trial. 'Christina I am good in front of a jury'." The records at MRRC note the legal conference with Mr Christov by Ms Nash and Ms Havryliv on 15 August 2006. 37 The evidence before the Court is that the internally quoted words in the note were the exact words spoken by Mr Christov. Thereafter there was a series of meetings and discussions between counsel, some of which related to the Judge alone trial. 38 On 18 August 2006, Ms Havryliv wrote to the Legal Aid Commission of NSW in the following terms: "On 15 August 2006 we attended a Call-over in the Supreme Court that was listed by his Honour Judge [sic] Kirby to discuss and identify and [sic] pre-trial issues.

As a result of these developments we attended MRRC on the afternoon of 15 August 2006 in order to take detailed instructions from our client relating to his new evidence.

This is important as the Crown is considering a Judge Alone Trial and if a Judge Alone Trial eventuates it will significantly shorten the proceedings as the only issue to be ventilated is whether Mr Christov can avail himself of a defence which would reduce murder to manslaughter based on substantial impairment." 39 At or about the same time as that letter was being written, Mr Howard, according to his evidence, conveyed his decision to consent to the election to Ms Nash and requested that the defence provide him with the Election Form. Shortly thereafter, and it seems, before 20 August 2006, a blank document purporting to be an Election Form (possibly one taken from another criminal lawyer's computer) was delivered to the Crown Prosecutor's chambers. According to Mr Howard, Mr Christov had not signed the Election Form, nor, necessarily, was the Form witnessed. Mr Howard refused to sign the Form until the accused had signed it and gave it to Mr Hammond to return to Mr Christov's solicitor, Ms Havryliv. 40 On 21 August 2006, a conference between the four legal representatives was held in Ms Nash's chambers, during which conference the election for a Judge alone trial was discussed and Mr Howard confirmed that he was prepared to consent to it. It is not suggested that an Election Form, either completed or otherwise, was provided to Mr Howard or Mr Hammond during the course of this conference. 41 At 8.28am on 22 August 2006, the Election Form, ultimately executed, for an application for a Judge alone trial was created in blank on the computer system at the office of Mr Christov's solicitor. Ms Nash and Ms Havryliv conferred, on that day, with Mr Christov. The evidence of Ms Havryliv is that she would usually drive Ms Nash to MRRC, but she cannot remember whether on that particular day she went to the office first (and drove Ms Nash) or went straight to Silverwater (picking up Ms Nash on the way). The note of the meeting between Ms Nash, Ms Havryliv and Mr Christov at MRRC on 22 August 2006 is in the following terms: "1. Issue of election NASH We need to have decision - VH to prepare document for signature by Crown

Nash Judge alone trial does not prevent normal issues arising as to possible appeal

Christov in agreement" The foregoing note is Exhibit A on the appeal. 42 As earlier stated, there is no clear recollection of all of the events that had occurred and there has been, quite understandably, a degree of reconstruction based upon the notes. Ms Nash has no record, in her diary, of the conference on 22 August 2006. Each of Ms Nash and Ms Havryliv take the view that Mr Christov, notwithstanding the words "Christov in agreement", did not agree, on 22 August 2006, to a Judge alone trial and the document (by this time created by Ms Havryliv's office) was not executed by Mr Christov at that time. Ms Havryliv was adamant that she did not have the Election Form document with her at the conference with Mr Christov, and understood the note "Christov in agreement" as being an agreement that the document would be prepared. 43 On the other hand, Mr Howard is definite that, at the time he affixed his signature to the Election Form, Mr Christov had signed the document and, as is clear from the Election Form itself, Mr Howard signed the document on 23 August 2006. 44 The records disclose that there was a further conference between Ms Havryliv and Mr Christov at MRRC on 24 August 2006. This conference occurred without the presence of Ms Nash, which, I hasten to add, is not a criticism of either Ms Nash or Ms Havryliv. 45 On 23 August 2006, Ms Nash handed Mr Howard the Election Form. According to Ms Nash it was a blank form that had been downloaded from "a criminal lawyer's" computer. Ms Havryliv gives no evidence as to the state of the Election Form, but attests to Mr Christov signing the Form on the morning of 28 August 2006, prior to the hearing. Mr Howard is adamant that the Form provided to him on 23 August 2006 was signed by Mr Christov, but not dated, and that his dating of the document, he considered, overcame the problems associated with the lack of date otherwise on the document. 46 On 24 August 2006, Ms Havryliv wrote to the Legal Aid Commission in relation to fees. The letter referred to a three-hour conference with the Director of Public Prosecutions on 21 August 2006, subpoenas that had been issued by the Crown returnable on 22 August 2006 and the level of preparation required. The letter also referred to a two-hour conference that Ms Nash and Ms Havryliv had with the Director of Public Prosecutions on 22 August 2006. The letter in part reads: " An application for a Judge Alone Trial has been made and the Crown has agreed. This will result in what was to be a four week trial being significantly reduced, therefore saving the Commission and the State a long drawn out trial. Ms Havryliv is currently on yet another conference with Mr Christov this afternoon, but will be available to discuss all these issues tomorrow." [Emphasis added.] 47 As already stated, on 24 August 2006, Ms Garrett, Kirby J's Associate, informed the Sheriff that the trial would be by Judge alone. Ms Garrett is of the view that the information she gave to the Sheriff's Office was given to her by the Crown. On 25 August 2006, the Criminal Registry caused the jury panels to be discharged. 48 There is no doubt that there were some pages of documents seen by and signed by Mr Christov on the morning of 28 August 2006. It is uncontroversial that, on that morning, Mr Christov signed the admissions as to fact upon which the trial proceeded and specific instructions to proceed to trial, notwithstanding the advice of counsel that he should plead guilty. 49 Each of the counsel involved in the proceedings was aware that the Election Form was required to be filed with the Court at least on a date earlier than the date fixed for trial. Neither of them expressed any concern at the time that, as earlier stated, Mr Howard tendered the Election Form. There is some inconsistency between the evidence given by Mr Howard, the Crown Prosecutor at the time, and Mr Hammond, his instructing solicitor. Mr Howard testifies that he gave specific instructions to Mr Hammond to file the executed Election Form. Mr Hammond denies those instructions and, indeed, testifies to his "panic" at the thought that it had not been filed. 50 Ultimately, the issue of fact is resolved by the determination of which of the various accounts is reliable. I reiterate that there is no suggestion that any of the witnesses is untruthful. Mr Christov bears the onus of proof, on the balance of probabilities, but the issue, in my opinion, does not depend upon onus. 51 In my view, the general thrust of the testimony of Mr Howard is to be preferred. Mr Howard's evidence is consistent, on the view I take, with the documentary evidence before the Court. I consider that the evidence of Ms Nash as to the initial opposition by Mr Christov to a Judge alone trial, while true, related to the conference on 15 August 2006, which Ms Nash had forgotten. I read the note of Ms Havryliv of the conference of 22 August 2006 quite differently from the reconstruction by either Ms Havryliv or Ms Nash. 52 The Election Form had been created on the morning of 22 August 2006. This was the Tuesday of the week prior to the trial commencing. Ms Nash was aware of the rule relating to the filing of the Election Form on a date earlier, at least, than the date for trial. If the document were not to have been signed on the Tuesday (in preparation for the conference with the Crown on the Wednesday), it would have been difficult, if not impossible, to file the document prior to the day that the trial was set for hearing. 53 The reference in the note of the conference of 22 August 2006 to "VH to prepare document for signature by Crown" is not, on my reading of the note, a reference to what is to occur. Ms Nash was seeking to persuade Mr Christov to agree to a Judge alone trial. Ms Nash has testified that it was difficult to persuade Mr Christov to agree to anything. The matter had been raised with him on 15 August 2006 and he had expressed the view that he was "good in front of a jury". Ms Nash was, as the note makes clear, telling Mr Christov that it was necessary for the defence to prepare a document for signature by the Crown, hence the need to have a decision immediately. That is the context in which the phrase, "VH to prepare document for signature by Crown", occurs in Exhibit A. 54 Mr Christov tested that persuasiveness by questioning his rights of appeal, if there were a Judge alone trial. After Ms Nash assuaged Mr Christov's concerns about his rights on appeal, Mr Christov agreed to the Judge alone trial and signed it. That document (executed as to the signature and witness only) was given to the Crown on 23 August 2006 at the earlier mentioned conference. The Crown completed the execution of the document on 23 August 2006 and dated it. 55 Unless one were prepared to accept that Mr Howard fraudulently entered the date, it must have been signed by Mr Howard on 23 August 2006. The only other alternative, consistent with the election not being prepared as at that date, is that Mr Howard signed an otherwise blank document. While there is some evidence to this effect, it is an unlikely scenario and one that is denied by Mr Howard. 56 Such a finding also accounts for the letter from Ms Havryliv to the Legal Aid Commission to the effect that, as at 24 August 2006, an application for a Judge alone trial "has been made". 57 Further, such a finding explains the cancellation of the jury panel, the communication with the Sheriff's Office, the existence of the stamp on the Election Form, Exhibit A in the trial, and the implied acceptance by all of the Counsel, at the time the document was tendered, that its timing created no issue. It does not explain the recollection of Ms Nash and Ms Havryliv that the document was signed at Darlinghurst on the morning of the trial. However, given that there were other documents signed by Mr Christov on the morning, this may explain the confusion in relation to that aspect. As to the discrepancy between Mr Howard and Mr Hammond as to who, if anybody, delivered the document, the discrepancy is irrelevant and easily explicable. Mr Hammond's recollection is understandably vague. Notwithstanding Mr Hammond's recollection, in my view, on the evidence as a whole, the likelihood is that the Election Form was then filed, either in the Registry or by delivery to the Associate to Kirby J (the stamp on it being one used by both the Registry and the Associate). The cancellation of the jury was confirmed thereafter. 58 Moreover, the explanation, or submission, that the phrase, "Christov in agreement", in the note of the conference of 22 August 2006, was a reference to Mr Christov's agreement to the preparation of the document, is inconsistent with the known fact that the document had already been prepared and had been created at 8.28am that morning. While there is no evidence as to whether the document had been printed at that point, there is also no suggestion that the document created that morning was subsequently modified, which fact would be ascertainable from the document's properties recorded on the computer from which its date of creation was derived. 59 On the basis of the above finding of fact, the Election Form (which is otherwise in the prescribed Form and was endorsed with the consent of the Director of Public Prosecutions, or a person authorised on his behalf) was filed before 28 August 2006, being the date fixed for the trial. As a consequence of that finding, there was compliance with the Rules and the conditions established by s 132 of the Criminal Procedure Act have been satisfied. Strict Compliance with Conditions 60 Much of the submissions related to the necessity to comply strictly with the conditions prescribed by s 132 and the Supreme Court Rules in relation thereto. Further, there was significant debate on the proper construction of those conditions. Strictly, it is unnecessary, and probably undesirable, for the Court to reach a concluded view as to the necessity for strict compliance, or the proper construction of the legislation. 61 At one stage, Mr Game SC submitted that the provisions of s 132 of the Criminal Procedure Act were jurisdictional. There is support for such a submission, which derives from statements of this Court relating to trials before the District Court of NSW: R v Fisher (Court of Criminal Appeal, Gleeson CJ, 22 May 1995, unreported); R v Perry (1993) 29 NSWLR 589; R v Coles (1993) 31 NSWLR 550. Different issues arise in relation to trials and orders (and verdicts) of the District Court of NSW and of the Supreme Court of NSW, because of the status of the Supreme Court as a superior court of record: see R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union [1951] HCA 3; (1951) 82 CLR 208 at 240-241. Whether the requirements of s 132 are jurisdictional or not, for a trial to occur in accordance with law, there must be either a trial before a jury or an election that allows a trial by Judge alone. In the case of a trial by Judge alone, in the absence of a valid election, there is no trial in accordance with law: Quartermaine v R [1980] HCA 29; (1980) 143 CLR 595; AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438. In those circumstances, there is no occasion for the operation of the proviso. 62 The foregoing does not, however, provide support for the proposition that the Supreme Court Rules require strict compliance. Compliance is required of the conditions in s 132 of the Criminal Procedure Act. 63 The terms of s 132(6) make clear that the legislature intended that the section might operate in the absence of rules of court. Section 132(6) enables the making of rules; it does not compel the promulgation of such rules. In order to comply with s 132 of the Criminal Procedure Act, the accused must elect in accordance with the section and the judge must be satisfied that, before making such election, the accused had received advice in relation to the election from an Australian legal practitioner. The other conditions that require compliance relate to co-accused in one proceeding and/or all offences with which the accused is charged. Lastly, the election may be made only with the consent of the Director of Public Prosecutions and must be made before the date fixed for the accused's trial. 64 The Crown initially submitted, in effect, that an election was made when there was an intention formed for the Judge alone trial to occur. However, the election cannot be made without its publication. 65 It has been said that one of the purposes of the requirements in s 132 of the Criminal Procedure Act is to avoid "judge shopping". If that were a purpose, it is not achieved by the requirements of the Act or the Rules. In the Supreme Court, the practice adopted, in these proceedings, by Kirby J, is universally adopted in relation to criminal trials. In the District Court, if the election has not been filed prior to the date fixed for trial, the device is utilised to adjourn the proceedings to the next day and on that date re-arraign the accused and continue the trial, the election having been filed on the date prior thereto: R v Coles (1993) 31 NSWLR 550. 66 However, one of the other purposes of the requirements of s 132 of the Criminal Procedure Act is the achievement of certainty in the validity or legality of the process adopted. It would defeat the purpose of the provisions for there to be an election that is not communicated to the Court. It is unnecessary to determine how that communication could be effected other than by the filing of a document in the form prescribed by the rules. 67 The foregoing, as earlier stated, is not necessary for the determination of the proceedings. Nor is it inconsistent with the judgments to which reference has been made on the necessity for strict compliance with the provisions of the statute. Compliance with the statute does not import strict compliance with the rules and the form prescribed thereby. In my view it is unnecessary and inappropriate for the Court to embark upon the determination of whether, in relation to a trial in the Supreme Court, the provisions of s 132 of the Criminal Procedure Act are "jurisdictional". Sentence Appeal: Utilitarian Value of the Manner of the Conduct of the Trial 68 The issue raised in the sentence appeal is that Kirby J did not take into account the utilitarian value in the manner in which Mr Christov conducted the trial. As earlier stated, the trial by Judge alone had benefits in the duration of the trial. Further, Mr Christov made admissions, consented to the tender of a large number of statements and did not cross-examine a number of Crown witnesses. The trial, because it was a trial by Judge alone, could be limited to the issue of substantial impairment and the determination of whether the act amounted to murder or manslaughter. There is no doubt that the effect of these matters saved Court time. 69 In R v Doff [2005] NSWCCA 119, this Court (Wood CJ at CL, Adams and Bell JJ) said at 58(c): "The efficient way in which the Appellant's trial was conducted, including the making of extensive admissions, which while not demonstrating contrition or remorse, did show a willingness to facilitate the course of justice by refraining from resort to dilatory and technical objections of no merit. We do not see why this should not be taken into account for the purposes of sentencing, particularly in a case where there was a single issue of substance which it was appropriate for decision by a jury." 70 The Crimes (Sentencing Procedure) Act 1999 prescribes, in s 21A thereof, aggravating and mitigating factors that are required to be taken into account in the determination of a sentence. A sentencing judge is not, pursuant to those provisions, required to take into account the utilitarian value of the manner of the conduct of the trial. A plea of guilty is required to be taken into account by a sentencing judge, as is pre-trial disclosure. But the admissions made under s 184 of the Evidence Act 1995 were not pre-trial disclosures: see also s 22A of the Crimes (Sentencing Procedure) Act. 71 If the utilitarian value of the manner in which a trial is conducted were a mandatory factor to be considered in sentencing, then a failure to take such factor into account would be an error of law. But the Act does not so provide. The factor to which this Court referred in Doff, supra, is a factor that may be taken into account by a sentencing judge. But there is no requirement to take it into account. There may be circumstances where the failure to take such a factor into account would be an error that should, and would, be corrected on appeal. But this is not such a case. It is essential that a sentence imposed, regardless of the factors available, not be disproportionate to the offence committed. 72 The submissions of Mr Christov, on this issue, deal with a number of statements by Kirby J in the course of the sentencing proceedings as to his Honour's approach to the factor. Comments by judicial officers in the course of proceedings are not a considered view, and often do not express the view of the judicial officer at all. Such comments may be made to focus the attention of counsel on issues that need to be addressed or to refine the issues that are before the judicial officer. It is only in exceptional circumstances that such comments should be taken into account for the purpose of determining the attitude of a judicial officer to a particular aspect.

73 Sentencing is a discretionary exercise that should not be the subject of interference except on one of the well-established bases. Ultimately, the question that must be addressed by this Court on the sentence appeal is whether a less severe sentence is warranted in law and should have been imposed: see s 6(3) of the Criminal Appeal Act 1919. I am not satisfied that a lesser sentence is warranted. Conclusion 74 For the foregoing reasons I propose that the Court should make the following orders:

(iii) Appeal against sentence be dismissed. 75 McCALLUM J: I agree with the analysis of Rothman J and his Honour's conclusion that a duly signed election was filed before 28 August 2006. I also agree with the concurring reasons of Giles JA. I accept, as do Giles JA and Rothman J, that each of the witnesses gave evidence to the best of his or her recollection. In particular, I do not doubt the sincerity of Ms Havryliv's conviction that she did not have the election form with her when she saw Mr Christov on 22 August 2006. However, I think she must be mistaken in that respect. 76 I agree with the reasons of Rothman J in respect of the sentence appeal and with the orders proposed by his Honour.

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