Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)
File Number(s): 2016/87940
[2]
EX TEMPORE Judgment
On 28 August 2017, the accused, Marita Cunningham, was arraigned in this Court on an indictment that charged her with murdering May Ritchie at Freshwater in this State on 20 March 2016. She pleaded not guilty. At the commencement of the trial, the Court was advised that an order for a judge alone trial had been made on 2 June 2017. Accordingly, the trial proceeded before me sitting without a jury.
Final submissions were completed on 31 August 2017 and judgment was reserved. While judgment was reserved, on 4 September 2017, my Associate advised the parties of my concern that a review of the file on "Justicelink" suggested that an order for a judge alone trial had not been made on 2 June 2017. The Court suggested to the parties that the matter proceed by the making of such an order, the re-arraigning of the accused, with the parties agreeing to re-tender the material from the trial conducted last week and to adopt their respective openings and submissions.
Senior Counsel for the accused, Ms Rigg SC, responded by stating that her client did not want to make any submissions on the issue and was content to proceed as suggested. However, when the matter was called on, she was content to adopt the Crown's position.
In its written submissions, the Crown Prosecutor submitted that a review of the transcript of a directions hearing on 2 June 2017 revealed that such an order had, in fact, been made, so there was no need to abort the trial in progress and, instead, the Court should proceed to deliver its verdict. In light of the Crown's submission, it is, therefore, necessary to determine whether such an order was made on 2 June 2017.
Sub-sections 132(1) and 132(2) of the Criminal Procedure Act 1986 provide:
132 Orders for trial by Judge alone
(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).
(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.
On 2 June 2017, the proceedings were listed for directions before Johnson J in the Arraignments List. The transcript of the directions hearing records that the parties announced their appearances and his Honour noted that the matter was listed for trial, commencing 28 August 2017, with a five day estimate. Senior Counsel for the accused told his Honour that:
"An application for trial by judge alone has been made and it has been consented to. The document has not been formally filed with the Registry."
The transcript records that a document was handed up to his Honour and that it was signed by the accused and on behalf of the prosecution. The document recorded their respective consents for a judge alone trial.
After further discussion, his Honour stated as follows:
"I note the accused has applied for trial by judge alone and the Crown has otherwise consented to that election so the matter will be a judge alone trial. That document will be placed with the file."
There was further discussion concerning the logistics of the trial. The transcript concludes with his Honour stating as follows:
"No further step need be taken today. I expect his Honour would have the accused arraigned. I will have the indictment filed.
1. I confirm the trial date of 28 August 2017 in the Supreme Court, Sydney, with an estimate of five days. In lieu of the usual orders I make the following orders:
2. Prosecution to file and served on accused notice of prosecution case in accordance with s 142 Criminal Procedure Act before 19 June 2017.
3. Defence to file and serve on prosecution the defence response in accordance with s 143 [of] the Act on or before 10 July 2017.
4. The prosecution is to file and serve on the accused the prosecution response to the defence response in accordance with s 144 of the Act on or before 24 July 2017."
The Associate's record of that date records that his Honour made the orders that I have just indicated. In respect of trial by judge alone, the Associate's record is as follows:
"Johnson J notes the accused has consented to a trial by judge alone and the Crown have likewise consented to that effect."
The Associate's record was loaded onto Justicelink.
The Crown Prosecutor submitted that that part of the transcript which records Johnson J stating, "so the matter will be a judge alone trial", recorded an oral order by his Honour under s 132(1) of the Criminal Procedure Act. I will return shortly to address that submission.
The Crown Prosecutor further contended that the requirement in Pt 75 r 3M(2) of the Supreme Court Rules 1970, that an order, or judgment of the court be entered as soon as practicable after it is given or made, as well as Pt 75 r 3M(3) and (4), which make provision for orders to be entered on the court's computerised court record system, or, failing that, by signature of the Judge, do not apply to a trial by judge order under s 132(1) of the Criminal Procedure Act.
The Crown Prosecutor noted that the Supreme Court Rules only apply to proceedings specified in the Third Schedule to the Supreme Court Act 1970. He contended that these "proceedings" that lead to the making of an order for a trial by judge on 2 June 2017 do not answer that description. In the alternative, the Crown Prosecutor submitted that any failure to enter the order did not mean that an order was not made, or otherwise affect the validity of this trial. Instead, so it was submitted, it only meant that the order remained to be entered.
Before I address if an order was made, I observe that Pt 75 of the Supreme Court Rules do apply to orders made under sub-s 132(1) of the Criminal Procedure Act in respect of trials in this Court. The proceedings specified in the Third Schedule to the Supreme Court Act include "proceedings in the [Supreme] Court for the prosecution of offenders on indictment". At this point, the only "proceedings" in this Court are proceedings of that character and a trial by judge order is an order made in such proceedings.
In his submissions, the Crown Prosecutor pointed to other parts of the Third Schedule to the Supreme Court Act as indicating that the reference to "proceedings in the Supreme Court … for the prosecution of offenders on indictment" does not mean that every order made under the Criminal Procedure Act in relation to such proceedings is covered by Pt 75 of the Rules.
In particular, he pointed to that part of the Third Schedule to the Supreme Court Act which refers to "proceedings … under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act". Proceedings under that Division concern committals for sentence. It is submitted that its inclusion in the Third Schedule to the Supreme Court Act is an indication that not everything done under the Criminal Procedure Act is caught by that part of the Third Schedule that refers to "proceedings in the Supreme Court for the prosecution of offenders on indictment".
In my view, the inclusion of a reference to committals for sentence simply removes any doubt as to whether proceedings following the committal for sentence answer the description of prosecution of offenders on indictment. The inclusion of that part of the Third Schedule does not detract from the conclusion that orders for a judge alone trial made in criminal proceedings that are for the prosecution of offenders on indictment should be entered in accordance with Pt 75 r 3M(2). Nevertheless, I accept the Crown Prosecutor's alternative submission that the failure to have any such order entered, assuming it was made, does not mean it is a nullity, or affect the validity of the current trial. That said, that such an order was not recorded on the Associate's record and entered on the court's computerised records system is some indication that the order was not made.
As I stated, the Crown's principal contention that an order was made turns upon the words stated on 2 June 2017 by Johnson J, namely, "so the matter will be a judge alone trial". The Crown Prosecutor contended that, given the making of such an order required no further deliberative process by the Court, that those words were sufficient to record the making of an order. Another reading of those words is they were not an order, but, simply, an observation as to what the consequences of the consent executed by the accused and on behalf of the Crown would be. That reading finds support in the absence of any reference to it in the orders made at the end of the transcript and the manner in which it was later documented in the Associate's record.
In Wu v R [1999] HCA 52; 199 CLR 99, an order for the continuation of the trial with eleven jurors was implied from an observation of the trial judge that we will "carry on with eleven", (at [3] per Gleeson CJ and Hayne J and at [38] Kirby J.) Generally, whether such an implication will be made will depend upon the context in which the words were stated by the judicial officer and, most importantly, the extent of the deliberative process required before the relevant order can be made(see R v Radju [2001] NSWCCA 103; 53 NSWLR 471.) Thus, the less deliberation, or consideration that is required before an order is made, the more readily the courts can infer, or imply, that such an order has been made based on the words that were uttered.
In this case, as at 2 June 2017, consents from the accused and the Crown had both been given, so that no further deliberative process was required by the court before an order under s 132(1) was made (s 132(2)). In those circumstances and while the matter is not free from doubt, I am satisfied that an order for a trial by judge alone can be inferred from the exchange that took place.
Accordingly, it follows that this trial shall continue and I will now deliver my verdict.
As I indicated, I will deliver a summary of the court's reasons and then publish the full reasons shortly.
[For verdict see R v Cunningham [2017] NSWSC 1176]
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 18 September 2017