Regina v BD

Reasons for decision on application by the accused that the accused be tried by Judge alone.

1. These are extraordinary times in which we are currently living and working because of the Covid-19 pandemic. The Government has acted swiftly to enact legislation to ensure as much as possible the courts can still function and hear and determine at least some cases. The respective Heads of Jurisdiction have likewise acted swiftly to ensure that the courts can still function as efficiently and as safely as they can in the circumstances. The profession in general and the bar in particular have embraced the virtual court room and are co-operating to help the system of the administration of justice continue to function again, as best it can in the circumstances. However, despite these extraordinary and unprecedented times the Crown maintain what has become an expected and almost routine opposition to trials being determined by judge alone, particularly in matters involving allegations of sexual assault. Be that as it may, this application must be determined in accordance with principle including the applicable and recently enacted Emergency Measures legislation.
2. Despite the amendments to the Criminal Procedure Act, 1986 by virtue of the provisions of Schedule 1 of the Covid-19 Legislation (Emergency Measures) Act, 2020, in this matter the Crown objects to an application by the accused for trial by judge alone. Because of s 365(2) of the Criminal Procedure Act, which is part of the Emergency Measures legislation a determination will need to be made whether an order for a judge alone trial is in the interests of justice.
3. It occurs to me that the interests of justice will need to include a consideration of the Covid-19 pandemic and prevailing situation within the community. Authorities such as Pambula District Hospital v Herriman (1988) 14 NSWLR 387 on the issue of efficiency and pragmatism do not have the force they once did in at least in the present circumstances. A fair reading of the Emergency Measures legislations includes that the evidentiary onus on the accused in an application for a judge alone trial has been dispensed with at least while the Emergency Measures are in place.