Solicitors: Ms Giannopoulos for the accused
File Number(s): 2019/00017894
[2]
INTRODUCTION
The Covid-19 pandemic has turned the world upside down. Over 215 000 people have died from the pandemic. Jury trials in this state have ceased and it is unclear when they will resume. It is against this back drop that Nathan Johnson who has been charged with one count of sexual intercourse without consent, applies for and consents to trial by judge alone. His application is opposed by the Director's representative.
[3]
THE COURT AND GOVERNMENT RESPONSE
The Chief Judge of the District Court has released various Practice Notes outlining essential adaptation of the Court processes and protocols responsive to the pandemic. Virtual court rooms have become the norm.
The Government passed 'emergency legislation' [1] to better equip the Court to function and conduct its business with efficiency in the circumstance of the current pandemic. The emergency legislation amendments that are relevant to this application were incorporated into the Criminal Procedure Act at Part 5.
The purpose of Part 5 is set out in section 353 of the act. It provides:
"The purpose of this Part is to enable criminal trial in the State to be conducted in a way that is appropriate given the public health emergency caused by the COVID-19 pandemic."
The Explanatory Note to the Bill states;
"Schedule 1 amends the Criminal Procedure Act 1986 to enable criminal trials to be conducted in an appropriate way during the Covid-19 pandemic, by enabling:
(a) a witness in a trial to give evidence before the trial in a pre-recorded evidence hearing, and
(b) the original evidence of a witness recorded in a trial to be used in a new trial, and
(c) a court to order judge alone trials in certain circumstances."
In the second reading speech the Attorney-General said,
"…Some of the amendments in the bill are extraordinary, which is why they generally have sunset clauses of between six months to 12 months. The Leader of the House has asked me to be brief, so I will not go into detail with many of the substantive amendments in the bill. The bill amends the Criminal Procedure Act 1986 to enable a judge to order that a relevant witness can give evidence by having their evidence recorded in advance of the trial, to enable a record of evidence given in the trial proceedings to be admissible in a subsequent trial, to facilitate more judge only trials, and to introduce a general regulation-making power for exceptional circumstances. This empowers regulations that will provide for altered arrangements for criminal proceedings, apprehended violence order proceedings, bail sentencing and the administration of sentences. The regulations made under this provision can override the provisions of any Act or other law and are not limited by regulation-making power in a relevant Act…"
It is clear from the second reading speech that the intention of the emergency legislation was to empower Courts with capacity 'to continue functioning' and to 'facilitate more judge alone trials'. This is consistent with the 'Purpose of the Part' 5 amendments to the act.
Section 365 provides:
"365 Judge alone trials
(1) A court may, on its own motion, order that an accused person be tried by a Judge alone.
(2) A court may make an order under subsection (1) only if -
(a) the accused person consents to be tried by a Judge alone or, for a joint trial, all the accused persons consent to be tried by a Judge alone, and
(b) if the prosecutor does not agree to the accused person being tried by a Judge alone, the court considers it is in the interests of justice for the accused person to be tried by a Judge alone, and
(c) the court is satisfied the accused person has sought and received advice from an Australian legal practitioner in relation to the effect of an order that the person be tried by a Judge alone.
(3) This section applies despite any other provision of this Act, including sections 132 and 132A."
It is the intent of parliament by reason of sub section (3) that sections 132 and 132A are subordinate to section 365. The purpose of the legislation enables the court to more easily make an order for a trial to be conducted by judge alone.
[4]
THE APPLICATION
Section 365 gives the court power, on its own motion, to make an order for a trial judge alone. One precondition for such an order is the consent of the accused. The accused consents to judge alone and invites the court, on its own motion, to order that the accused be tried by judge alone.
The alleged offence occurred at Moama on 31 March 2018. The complainant made a statement to the police on 1 April 2018. The accused was interviewed on 30 May 2018. He provided his DNA to police on 23 November 2018. A future court attendance notice was created on 14 January 2019. He was committed for trial on 8 October 2019. The trial is listed to commence on 9 June 2020.
The crown does not consent to a judge alone trial.
In considering the application I have read the Crown case statement which occupies 65 paragraphs and is undated.
[5]
THE ACCUSED'S SUBMISSIONS
The accused consents to a judge alone trial and has received advice from an Australian Lawyer about trial by judge alone. It is submitted that there is nothing unique or particular about this case that make it inappropriate for a judge alone trial. It is further submitted that the Crown would not be prejudiced by the matter proceeding as a judge alone trial.
The accused's counsel submits that it is in the complainant's interest that the matter be dealt with expeditiously and if a judge alone order is not made there will be a significant delay in the finalisation of the matter. Ms Cook submits that the legal maxim 'justice delayed is justice denied' has application.
[6]
THE CROWN SUBMISSIONS
The Crown correctly submits that the emergency legislation does not abrogate the Crown's right to oppose the making of an order for trial by judge alone.
The Crown's main submission is that there are underlying principles in relation to the benefits of community involvement in the criminal justice system. The Crown relies upon what was said in Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197, Brown v The Director of Public Prosecutions (NSW) [2018] NSWCCA 94 and R v Stanley [2013] NSWCCA 124.
The Crown submits that if the trial date was vacated there is a possibility that it may proceed before a jury late 2020. I wish I had the same optimism exhibited by the Crown. In my view there is no certainty that the matter would be reached in 2020. The Crown further submits that the delay is not such that the interests of justice should way in favour of a trial by judge alone. The Crown submits that the overriding consideration is community involvement in the criminal justice system.
[7]
CONSIDERATION
The single test governing the power to grant a trial by judge alone pursuant s365 is that of the 'interests of justice'. The Crown accepts that in the current Covid-19 pandemic, the interests of justice must incorporate the prejudice to the accused caused by a delay and the ability of the courts to continue their work. [2]
In R v Coleman [2020] ACTSC 97 Elkaim J at [41] said,
"As I tried to convey in UD the fact that a trial can be conducted sometime in the future is not necessarily the point. The legislation intends the business of the court to continue. If that involves a judge alone trial then the proposed order should be made unless it is not "otherwise in the interests of justice" (s68BA(3)(b)."
I respectfully adopt what was said by Elkaim J. It is the clear intention of the New South Wales Parliament that "the business of the court is to continue".
I have taken the following into account when assessing the interests of justice;
(a) the intent of Parliament for trials to continue
(b) the need for the complainant to give evidence in a timely and expeditious manner.
(c) the request by and the informed agreement of the accused for a judge alone trial
(d) to shorten the 'state of suspense' hanging over the head of a person who is presumed to be innocent.
(e) the adjournment of the trial would result in an unacceptable delay
One must be circumspect about the benefits flowing from community involvement in the trial process as advocated by the Crown in light of the intent of parliament.
In these extraordinary times it is incumbent upon judges of this court to attend to whatever work is able to be performed. This includes noting the clear intention of Parliament for the ordering of more trials to be conducted by judge alone.
I have carefully considered the submission of the Crown. I am of the view that it is in the interests of justice for the trial to be by judge alone. As Elkaim J observed in R v Coleman "the business of the court is to continue".
In accordance with s365 of the Criminal Procedure Act I direct that the trial proceed by judge alone. I confirm the trial date of 9 June 2020.
[8]
Endnotes
Covid-19 Legislation Amendment (Emergency Measure) Act 2020 No 1
R v U D (No 2)2020 ACTSC 90
[9]
Amendments
30 April 2020 - paragraph [17] - changed "here" to "there" in first sentence.
06 May 2020 - paragraph [15] - changed "he matte" to "the matter"
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Decision last updated: 06 May 2020