R v Quintana (No. 5) [2020] NSWSC 724

Supreme Court New South Wales

Medium Neutral Citation: R v Quintana (No. 5) [2020] NSWSC 724 Hearing dates: 29 May 2020 Date of orders: 11 June 2020 Decision date: 11 June 2020 Jurisdiction: Common Law Before: Lonergan J Decision: The proceedings are to be tried by judge alone. Catchwords: PRACTICE AND PROCEDURE – application by accused for trial by judge alone – COVID-19 pandemic – business of the court to continue – Crown witness located overseas and subject to extradition request – prior trial listings vacated due to no fault of accused – application granted Legislation Cited: COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: R v Quintana [2020] NSWSC 22 Texts Cited: New South Wales Legislative Assembly, Second Reading Speech (Hansard), 24 March 2020 Category: Procedural rulings Parties: Regina (Crown) Rey Quintana (Accused) Representation: Counsel: A Evers (Applicant) D Daleo (Respondent)

Solicitors: Alpha Law Practice (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/00067200 Publication restriction: Nil

Judgment 1. The accused has made a further application for a judge alone trial. The Crown opposes the application and maintains the position that the trial must proceed before a jury. 2. In January 2020 I refused an application made by the accused for a judge alone trial, primarily because of s 132(5) of the Criminal Procedure Act 1986 (NSW) and the considerations that arise under that subsection, and the authorities that deal with those considerations: R v Quintana [2020] NSWSC 22. 3. The landscape of litigation in NSW has completely changed since the time I decided that application with the arrival of the COVID-19 pandemic, which has caused a shutdown of all but essential services, and extensive restrictions on social interactions in an effort to slow the spread of this deathly virus and to protect the community. 4. The extraordinary circumstances led to the enactment of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) which commenced on 25 March 2020. 5. In the Second Reading Speech on 24 March 2020 the Attorney General stated that the Bill sought to "prepare NSW services and institutions for the impacts of COVID-19 in line with critical health advice" and that the amendments to the Criminal Procedure Act were to, amongst other things, "facilitate more judge only trials". 6. Schedule 1 of the legislation titled "Amendment of Criminal Procedure Act 1986 No 209" inserted as Part 5 "Response to COVID-19 pandemic" includes the following: 353 Purpose of Part The purpose of this Part is to enable criminal trials in the State to be conducted in a way that is appropriate given the public health emergency caused by the COVID-19 pandemic. 1. Division 4 headed "Judge alone trials" 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. 1. Interestingly, the test if the Crown opposes such an order is identical to that articulated in s 132 of the Criminal Procedure Act, that is, I must have regard to the interests of justice. Specific reference to the discretion to refuse the application set out in s 132(5) is omitted. That signals to me a subjugation or at least subordination of those considerations to the need for the business of the Court to continue. 2. Whilst some social restrictions are now easing and small numbers of people are allowed to gather, and some trials with juries are soon to proceed in this and other Courts over the next month or two, the future, effected as it is by the reality of COVID-19 remains uncertain, and s 365 remains in force. 3. For the reasons that follow, I have decided that the trial should proceed as a judge alone trial.