R v Macdonald; R v Maitland (No 2) [2022] NSWSC 1208

Supreme Court New South Wales

Medium Neutral Citation: R v Macdonald; R v Maitland (No 2) [2022] NSWSC 1208 Hearing dates: 18 August 2022 Date of orders: 18 August 2022 Decision date: 18 August 2022 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: The trial of Ian Michael Macdonald and John William Maitland on the indictment dated 6 February 2017 with respect to two counts in the case of Mr Macdonald of wilful misconduct in public office and two counts in the case of Mr Maitland of aiding and abetting the offences alleged against Mr Macdonald will be tried by judge alone. Catchwords: CRIMINAL PROCEDURE – application for trial by judge alone – consent – application granted Legislation Cited: Criminal Procedure Act 1986 (NSW), s 132 Category: Procedural rulings Parties: Regina (Crown) Ian Michael Macdonald (Accused) John William Maitland (Accused) Representation: Counsel: P Hogan (Crown) R Rajalingam (Macdonald)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Michael Bowe Solicitors (Macdonald) J W Maitland (self-represented) File Number(s): 2015/59990; 2015/59940 Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED) 1. HIS HONOUR: In this matter Mr Macdonald faces trial in this Court in relation to two counts of wilful misconduct in public office, the first alleged to have been committed on or about 21 August and the second alleged to have been committed on or about 15 December, both in 2008. 2. Mr Maitland faces trial on counts that, with respect to each of the charges against Mr Macdonald, Mr Maitland did beforehand aid, abet, counsel and procure the commission of Mr Macdonald's offence. 3. Both accused have provided a form in the prescribed form making an election for trial by a Judge alone pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW). In the case of Mr Macdonald, it indicates that advice in making the election has been sought and received from his solicitor Mr Bowe who acts in these proceedings. In those circumstances, it is clear that Mr Macdonald has received advice from a lawyer with an understanding of the issues in the proceedings. 4. In relation to Mr Maitland, his form indicates that he has received advice in relation to his election from a barrister. Mr Maitland has given evidence before me this morning that the barrister from whom he received advice is Mr Dean Jordan of senior counsel. Mr Jordan SC was Mr Maitland's counsel in the first trial of these proceedings, these matters being a retrial. In those circumstances, I am satisfied that Mr Maitland has received appropriate advice from a lawyer with an understanding of the issues involved. 5. In each case the form has been signed by the Deputy Senior Crown Prosecutor indicating that the Director of Public Prosecutions consents to the election for trial by a Judge alone. 6. Section 132(1) of the Criminal Procedure Act provides that an accused or the prosecutor in criminal proceedings in this Court may apply to the Court for an order that the accused person be tried by a Judge alone. 7. Section 132(2) provides that the Court must make such an order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. 8. Having regard to the election made by the accused and the consent indicated by the prosecutor, s 132(2) operates in the present case. That operation is subject to s 132(6) which provides that the Court must not make a trial by judge order unless satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. 9. Having regard to what I have said above, I am satisfied that both accused have sought and received advice as required under subs (6). Having regard to these matters, I order that the trial of Ian Michael Macdonald and John William Maitland on the indictment dated 6 February 2017 with respect to two counts in the case of Mr Macdonald of wilful misconduct in public office and two counts in the case of Mr Maitland of aiding, abetting, counselling and procuring the offences alleged against Mr Macdonald be tried by a Judge alone.