R v Monteleone

Decision date: 23 March 2026

Jurisdiction: Criminal

Before: Abadee DCJ

Decision: See [49]

Catchwords: CRIMINAL LAW – application for a trial by judge order – accused charged with personal violence offence – accused has pleaded guilty to alternative charge – applicant also committed breaches of apprehended violence order prior to the conduct giving rise to the alleged offence – risk prejudice not being ameliorated by jury direction – issue in trial will be whether the accused intended to kill the complainant when he stabbed her – whether that issue requires application of objective community standards – whether jury the more appropriate forum to draw inferences and make credibility and reliability assessment

Legislation Cited: Crimes Act 1900 (NSW), ss 27, 33
Criminal Procedure Act 1986 (NSW), ss 132, 132A
Evidence Act 1995 (NSW), s 137

Cases Cited: DPP (NSW) v Farrugia [2017] NSWCCA 197
R v Abrahams [2013] NSWSC 729
R v Adams (No 2) [2016] NSWSC 1359
R v Batak (No 6) [2025] NSWSC 658
R v Belghar [2012] NSWCCA 86
R v BT [2017] NSWSC 1095
R v Dawson [2022] NSWSC 552
R v Gittany [2013] NSWSC 1503
R v Mackie (No 2) [2018] NSWSC 1654
R v McNeil [2015] NSWSC 357
R v Stanley [2013] NSWCCA 124
R v White [2024] NSWSC 1369

Category: Procedural rulings

Parties: Rex (Crown)
Anthony Monteleone (Accused)

Representation: Counsel:
Mr R Kotsis (Crown)
Ms C O’Neill (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Karim + Nicol Lawyers (Accused)

File Number(s): 2024/00171278

Publication restriction: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 45.

judgment

(This is an edited version of reasons given orally on 23 March 2026).

Introduction

1. On 8 May 2024 Anthony Monteleone, stabbed his former partner (the complainant) with a knife in a carpark in Alexandria, leaving her wounded in the neck and in her chest.

2. Mr Monteleone was charged on indictment with the primary offence of wounding the complainant with intent to murder her (contrary to s 27 of the Crimes Act 1900 (NSW)). The second, alternative charge, is that he wounded the complainant with intent to cause grievous bodily harm (contrary to s 33(1)(a) of the Crimes Act).

3. He has pleaded not guilty to the primary count, but pleaded guilty to the alternative count. The sole issue for trial is whether the Crown can prove that he had the intent to murder the complainant.

4. On 22 December 2025, Mr Monteleone signed an election pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW) (‘CPA’) to be tried by a Judge alone. However, his application for trial by judge alone was only brought on 26 February 2026, being less than 28 days prior to the listed trial date. So Mr Monteleone, who I will henceforth refer to as the ‘applicant’, requires the Court’s leave under s 132A of the Criminal Procedure Act.

5. The Crown did not oppose the grant of leave. In this regard, I note that the identity of the trial judge would only have been recently become apparent and, indeed, only after he had brought the application. The Crown has been on notice of the application since 16 February 2026 when the applicant’s lawyers served the applicant’s signed election. Leave is granted to the applicant to bring his application.

6. This brings me to the application itself. The Crown opposes the application.

7. The application is supported by an affidavit of her solicitor, Nadia Karim. His Counsel prepared submissions (MFI 1) and the Crown prepared submissions in response (MFI 2).

8. There is no issue as to whether the precondition in s 132(6) is satisfied: the applicant has sought and received advice as to the effect of such an order from an Australian legal practitioner.

9. On the application, the applicant cited that parts of the Crown Case Statement (CCS) through which it is evident that the Crown proposes to rely upon (a) the applicant’s dealings with the complainant in the period from 13 April 2024 to 8 May 2024 (the day of the stabbing) (CCS 11-32); and (b) the applicant’s conduct after the stabbing (CCS 40, 58-61).

10. The first part of this CCS, which is in the nature of context evidence, is contentious. Objection is taken to it under s 137 of the Evidence Act 1995 (NSW) for being unfairly prejudicial. Certain potential dangers of misuse of evidence by a jury have been identified. These include the circumstances of the complainant’s report to police about his conduct on 19 April 2024, the AVO taken out against him on the complainant’s behalf (served on 20 April 2024), his conduct in breach of that AVO (27 and 28 April 2024) and a subsequent prosecution of him and imposition of a term of imprisonment to be served by intensive correction order.

11. The second part of the CCS that the applicant emphasised features evidentiary references to the applicant driving from the crime scene, disposing of phones and eventually setting his car alight. The applicant apprehends that the Crown will rely upon the evidence only as proof that the applicant wounded the complainant, and there would be no objection to the evidence with that limitation; however, even with that limitation, there would remain a risk of misuse of the evidence.

12. On the premise that the trial proceeded by jury, the applicant estimates that it will run for 5 to 7 days. If, on the other hand, it was heard by Judge alone, the applicant’s lawyers expect that it would be in the order of 3 days, with much of the evidence capable of being adduced by agreed facts. The Crown did not disagree with these estimates.

Statutory provision and principles

13. Section 131 of the CPA provides that criminal proceedings, relevantly, in the District Court are to be tried by a jury except as otherwise provided by this Part. Applications under s 132(1) are to be considered in the light of the circumstance that trial by jury is the ‘conventional approach’: DPP (NSW) v Farrugia [2017] NSWCCA 197 (“Farrugia”) per Basten JA (Button J agreeing) at [9].

14. Section 132 of the CPA provides:

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.

(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5) Without limiting subsection (4), 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.

(6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

(7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that:

(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and

(b) the risk of those acts occurring may not reasonably be mitigated by other means.

“Interests of justice”

15. I note the broad discretion in s 132(4), subject to s 132(6). But the Court’s consideration is confined to the evidence placed before it; in addition to matters of which the Court can take judicial notice: R v Belghar [2012] NSWCCA 86 at [90].

16. Counsel referred me to the statement of guiding principles of Yehia J in in R v White [2024] NSWSC 1369 which statement was reprised by her Honour in R v Batak (No 6) [2025] NSWSC 658 (“Batak”). Her Honour prefaced that statement of principles by noting the accused’s general constitutional right to trial by jury and explained why the subjective preference of an accused, and/or his belief that a jury trial may not be fair, is a relevant mandatory, and indeed weighty, consideration for applications under s 132(1), given that the accused has made a considered decision to forego the protections that come with a jury trial.

17. Then at [31]-[39] (the paragraph numbering being taken from Batak), her Honour observed (omitting citations):

“31. Firstly, there is no presumption that a trial should be conducted with a jury.

32. Secondly, an accused is not entitled to a trial by judge alone simply because he or she has made an election to be tried by a judge alone. However, the fact that an accused has decided, on legal advice, to relinquish his or her right to a jury trial is a matter to be weighed in determining where the interests of justice lie…It should be noted that a mere unstated apprehension without supporting evidence will not be sufficient.

33. Thirdly, the interests of an accused are not necessarily the interests of justice. The community receives important collateral benefits from a trial by jury in the involvement of the public in the administration of justice and in keeping the law in touch with community standards.

34. Acknowledging that the interests of justice are not limited to the interests of an accused does not detract from the emphasis that should be placed upon the fundamental importance of an accused receiving a fair trial. Underpinning that principle is the presumption of innocence and the substantial consequences that flow to an individual upon a finding of guilt. Furthermore, the interest of the community is not in ensuring that an accused is convicted but in ensuring that an individual accused of a crime receives a fair trial according to law.

35. Fourthly, s 131 of the CPA does not cast a burden of proof on an accused person. Although an accused carries an evidentiary onus, the Court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which “a presumption” of trial by jury is displaced.

36. Fifthly, Parliament has made it clear that it may be preferable “in the interests of justice” that there should be a trial by jury where an alleged offence involves objective community standards. Section 132(5) sets out a non-exhaustive list of issues requiring the application of objective community standards, including, but not limited to, an issue of reasonableness, negligence, indecency, obscenity or dangerousness. That does not mean that it necessarily follows, in a case involving the application of objective community standards, that there should be a jury trial. However, whether or not the issues involve the application of community standards is a relevant consideration. Each case will depend upon its own facts and circumstances.

37. …

38. Sixthly, efficiencies in the conduct of the trial without a jury is a relevant factor as part of the mix of issues which must be considered.

39. Seventhly, it is in the interests of justice to conduct a trial in the most efficient and flexible way possible, so as to minimise the prospect that any trial would not be able to be completed.”

18. At [68]-[80], her Honour explained why in her view, the circumstance that a trial is likely or necessarily to involve an assessment of the credibility of witnesses is a neutral consideration when considering what the interests of justice requires.

19. Earlier, in R v Dawson [2022] NSWSC 552 (“Dawson”), Beech-Jones J made the following observations about the phrase:

“10. Generally, the phrase ‘interests of justice’ envisages a broad assessment of a variety of matters, some concerning the interests of the parties to the litigation, but also ‘interests wider than those of either party’ (BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [15], and at [169] and [172]). In the context of s 132, in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 (“Belghar”), McClellan CJ at CL held that s 131 does not create a presumption that the trial should be with a jury which an accused person must discharge. Instead, as each form of trial has its own characteristics, and depending on the particular case, the court may conclude that the interests of justice are best served by a trial before a judge alone rather than a trial by a jury. Further, the subjective views of an accused, and his or her belief that a jury trial may not be fair, are relevant factors to consider however they are far from determinative. What is more significant is the reason for that preference, whether those reasons are rationally justified, and whether they bear upon the question of a fair trial. The mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice, is not sufficient to make such an order as it is contrary to the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict.

11. In Simmons (No 4), Hamill J identified several considerations which may inform the assessment of whether the interests of justice warrant the making of an order for trial by judge alone. These include the potential to save court time and expense from having a matter proceed without a jury although the weight to be attached to this factor will vary from case to case. One advantage of a trial by a judge alone is the enhanced community confidence in the verdict that may be derived from the provision of reasons by a judge especially if it concerns complex engineering, scientific or medical issues. On the other hand, there is a ‘public interest in the administration of justice [being] carried out in public and in serious cases by the representatives of the public sitting as jurors’. Many authorities point to juries as the preferred body to make assessments of the credibility of witnesses. However, in Simmons (No 4) Hamill J regarded this factor as neutral given that judges have the ‘training and experience of making difficult decisions on credibility, putting aside matters of emotion, on an almost daily basis’.”

20. In Farrugia Basten JA (Button J agreeing) said (at [11]):

“Without seeking to be restrictive of the circumstances in which such orders are appropriate, it is helpful to note that the decided cases reveal [J]udge alone trials may be preferable in relation to lengthy complex trials involving significant disputes between experts and in cases where the judge is not satisfied that a fair trial can be achieved with a jury, perhaps because a particularly horrendous crime has inflamed public sentiment in a small community. On the other hand, it is clear that an order is not to be made because the judge has a preference for trials without a jury because, for example, a reasoned judgment is more transparent than a jury verdict, the trial is likely to be shorter and less expensive to run, or a ‘correct’ result is more likely.”

21. In response to some of the arguments raised on the applicant’s behalf, the Crown referred to other cases to establish the following propositions:

22. a working assumption in cases tried by juries is that they may come to the task with prejudice or might act emotionally in response to disturbing evidence. That is why presiding judges warn them not to allow emotion or prejudice to sway them: R v Stanley [2013] NSWCCA 124 (“Stanley”) at [48];

23. the system of criminal justice assumes that generally juries understand and follow directions they are given: Stanley [49];

24. there are some, but not all, authorities supporting the notion that on an assessment of the credibility or reliability of witnesses, the collective wisdom of the jury may be superior to the assessment of a judge: R v Mackie (No 2) [2018] NSWSC 1654 at [28];

25. there are some, but not all, authorities where a Court has found that a decision on an accused’s intention may engage the application of community standards: Stanley at [61] (which the Crown notes was another case where the sole issue was the accused’s intention); R v McNeil [2015] NSWSC 357 at [99] and [102].

The parties’ submissions

The applicant’s submissions

22. The applicant submits that the interests of justice are such that the Court should accede to the application.

23. First, there are the two aspects of the evidence that the Crown relies upon which are said to generate a risk of misuse by a jury. As to the part of it that concerns the applicant’s conduct towards the complainant leading up to the stabbing, there is a danger that the jury might conclude that he is of bad character; might engage in tendency reasoning or substitute it for the conduct giving rise to count 1. As to the part of it that concerns post-offending conduct, a jury might misuse it by reasoning that the applicant tried to evade detection because of his committing the more serious conduct that is count 1 rather than count 2. The applicant acknowledges that these risks may be mitigated by jury directions. Nevertheless, the risk remains especially given the relative complexity of the directions. That concern would effectively fall way if the trial was by judge alone.

24. Secondly, the issue at trial is whether the Crown discharges its burden of proving that the applicant had the intent to kill. The accused’s Counsel expects that there are potentially competing inferences, and determination of them should proceed with what was suggested to be a nuanced understanding of onus and burden of proof. There is a question mark as to whether the jury, collectively, would ultimately have that understanding.

25. Thirdly, potentially trial by judge alone could almost halve the length of the hearing.

26. Fourthly, the applicant wants to have a trial by judge alone.

27. Fifthly, given the real issue as that has been identified, it does not concern the application of objective community standards. Further, given the forensic context, this is not a case where complainant’s credibility will likely be decisive and even if it was, that would be a neutral matter.

The Crown’s submissions

28. The Crown submits that the benefits of collective community decision-making in the matter are not outweighed by the matters raised by the applicant.

29. The Crown contends that the extent to which, if at all, prejudice might arise from the ‘pre-offending’ conduct referred to, that can be cured by the standard and uncomplicated directions. As to the ‘pre-offending’ conduct, the potential prejudice is slight when one considers the circumstances that: (a) the applicant would be pleading guilty to a much more serious offence against the same complainant; (b) the pre-offending occurred over a short period of time and did not involve the actual infliction of violent conduct. So the violent conduct in question in this case can be regarded as ‘isolated’. As to the ‘post-offending’ conduct, the Crown will not be adducing this with a view to seeking an Edwards direction. Again, in circumstances where the accused will plead guilty to charge 2, there is no realistic risk that evidence of that conduct would be misused that could not be ameliorated by directions.

30. The Crown cited some cases where the issue of intent to kill arises involved consideration of earlier violent conduct of the accused (R v Adams (No 2) [2016] NSWSC 1359 and R v BT [2017] NSWSC 1095). But even in those cases, the Court declined an application for trial by judge alone. In the latter case, the Judge emphasised that the jury would be instructed to put aside sympathy for the victim or prejudice against the accused. At any rate, standard directions can be given which articulate the limited proper uses of such evidence.

31. The Crown emphasises that proof of the accused’s intention will largely be drawn, firstly, by inference. A direction to juries about inferences is common. Intention is, the Crown submits, a matter that falls within s 132(5), but even if it did not, it was preferable for that matter to be determined by a jury.

32. Secondly, the trier of fact will need to assess the credibility and reliability of an account that the applicant gave to police. The credibility of the accused is also a matter that falls within s 132(5), but even if it was not, it is a matter preferably to be considered by a jury.

33. The Crown acknowledges that trial by judge alone carries the prospect of a shorter trial, but says that this is not a matter of significant weight given the narrowness of the issue to be determined.

Consideration

34. In applications of this kind, there are considerations pointing both ways. I regard them here as being finely balanced.

35. I start from the perspective that trial by jury is the conventional approach to crimes tried on indictment and the recognition of the institution of trial by jury as a bulwark against executive and judicial power.

36. Much of the debate contained the assumed premise that the Crown would be able to rely upon the parts of the evidence I earlier described as context evidence. That is contentious, but for the purpose of resolving this application, the assumption is appropriate to be made, since it puts the Crown case at its highest. I accept that the applicant has adduced evidence to found his subjective apprehension that notwithstanding the prospect of judicial directions that might ameliorate the risk, there are risks that the jury might misuse the evidence of the pre-offending conduct and conduct after the offending. However, there is force in the Crown’s contention that the ‘prejudices’ that the accused identifies, if the trial was to proceed by jury, would have to be weighed in a context where the jury would appreciate that he has already pleaded guilty to the alternative charge, which is itself inherently very grave, and where the earlier uncharged conduct did not itself constitute the commission of personal violence offences. There is also force in the Crown’s submission that in other cases cited to the Court, even where there were intimations or indications of earlier violent conduct committed before the alleged offence, the conventional approach of the mode of trial by jury still applied.

37. A question arises whether it is so clearly apparent that a jury will, in the face of judicial directions, be unable to put out of their mind prejudice towards the accused.

38. I do not find persuasive the suggestion that they will be such that they cannot render an impartial and dispassionate verdict. I agree with the Crown that, putting aside specific directions to deal with discrete types of evidence, there are general procedures and directions to guard against the risk. These include the circumstances that jury panels are informed about the nature of a case before empanelment and potential jurors are asked whether on that account, they consider that they could not act impartially and if that is so, they should apply to be excused. Further, once jurors are affirmed or sworn in, they are directed not to allow themselves to be moved by sympathy or prejudice, but are to approach their tasks objectively, dispassionately and impartially. These conventional expedients are adopted on the hypothesis that potential and actual jurors may be susceptible to emotion or prejudice and are intended to redress those concerns. Apprehension about lingering sympathy and prejudice even after those customary aspects of procedure is not a good reason for trial by judge alone. In short, the mere apprehension that the allegations, in effect, concern conduct engaged in with an intent to murder, in a context of prior stalking or intimidation, are likely to engage sympathy for a complainant on the one hand and potential prejudice against an accused, is insufficient to dispense with the conventional approach.

39. There is also force in the Crown’s submission that it is assumed that juries will understand and follow directions given to them. Counsel for the applicant will have the opportunity of providing input to the Judge as to what those directions should be; particularly in relation to warnings and the limitations upon specific types of different evidence.

40. I find that given the narrowness of the issue identified for its adjudication, the trier of fact will necessarily be required to draw inferences and, moreover, be required to form an assessment of the credibility and reliability of the applicant, as he gave an account in his interview with police. It is convenient to tease out these two aspects separately.

41. Contrary to the applicant’s submission, the subject matter of the case is not such that there will be any apparent complexity in a jury being asked to draw inferences. A conventional direction on inferences will, it would be expected, be given to them. Further, I agree with the Crown that notwithstanding what I accept are genuine concerns in the applicant, there may be an advantage to him if there are twelve of his peers, deploying their unique experience of life and wisdom, to draw the inferences rather than a judge. It will be an advantage to him, in spite of what he may think, that a unanimous verdict is rendered that is substantially affected by the process of drawing inferences.

42. Similarly, although views plainly differ on this matter, I consider that findings about credibility and reliability are preferably determined by a jury of 12, rather than a single judge. It is not just a case where the trier of fact can rely upon the manner in which a witness presents, and accordingly, the jury will be instructed, in effect, not to allow demeanour-based observations to overwhelm their rational consideration of the content of what the witnesses say. Again, a strength of trial by jury is that when consideration is given by the trier of fact to alternative explanations or hypotheses potentially advanced by an accused, he will have twelve persons, from different walks of life, applying their common sense in evaluating them. It also goes without saying that to the extent that the accused gives a contrary account as to his state of mind, such as in an ERISP, the jury will be provided with a Liberato direction to accompany standard directions about the onus and standard of proof.

43. I would also add that community confidence is more likely to be bolstered by the use of a jury, as the ‘constitutional tribunal of fact’, reaching a unanimous verdict, than a judgment derived from the fact-finding process of a single judge. That is especially so for a very serious offence such as the one for which the applicant is primarily charged.

44. I acknowledge the accused’s preference. It is no small thing to forego a constitutional right, and that has occurred in circumstances where he has received legal advice. That preference cannot, however, be determinative.

45. Whilst views on the matter also differ, for myself, and with great respect to those who do not share this view, I doubt whether the issue of what the accused’s intention was when he engaged in the conduct that wounded the complainant requires ‘the application of objective community standards’. What the accused’s intention was, to the contrary, is a matter of this particular accused’s subjective belief. It ultimately comes down to an assessment, to adopt the words of Harrison J in R v Abrahams [2013] NSWSC 729 at [47], of what this accused “was thinking” when he stabbed the complainant.

46. To reiterate, I agree with the Crown that it is preferable for a jury to engage in the process of drawing inferences and making assessments of witness credibility and reliability.

47. I acknowledge the likelihood that trial by judge alone would not insignificantly reduce the length of the hearing. But against that, the trial, on a single charge, would not likely be very long in any event, and I did not understand that the mode of trial would likely affect the scope of agreement as to facts currently being negotiated as between the Crown and the applicant’s lawyers. Further, the evidence is not comparable to the situation in R v Gittany [2013] NSWSC 1503, where the relative scarcity of financial resources for an accused’s lawyers for a long jury trial was an influential consideration.

48. Finally, and with reference to some of the illustrations furnished in Dawson and Farrugia*,* it is of some significance that this case does not strike me as falling within the type of case particularly apt for trial by judge alone. The trial will not be lengthy or complex. It will not involve any, or any significant dispute, between experts. It will turn on a single question of fact. The trial of an inherently serious offence will not occur in a remote small town, but in the city of Sydney. Nor is this a case, like Dawson, where an applicant has cited the presence of adverse pre-trial publicity potentially affecting the pool of jurors. Nor is it a case that is peculiarly apt to excite or inflame passions, such as a case where it is shown that the accused is a member of an outlaw motorcycle gang or where the crime is one of terrorism.

49. The applicant’s application for a “trial by judge order” is refused.

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Amendments

18 May 2026

Amendment to coversheet.