New South Wales Supreme Court CITATION : R v Biggs [2007] NSWSC 933 HEARING DATE(S) : 15/8/07, 16/8/07, 20/8/07 JUDGMENT DATE : 22 August 2007 JUDGMENT OF : Bell J at 1 DECISION : Adjourment granted CATCHWORDS : Adjournment of trial to permit election for trial by judge alone LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act 1986 CASES CITED : R v Coles (1993) 31 NSWLR 550 R v Perry (1993) 29 NSWLR 589 PARTIES : Regina John David Biggs (Accused) FILE NUMBER(S) : SC 2006/2506 COUNSEL : P Barnett (Crown) M Austin (Accused) SOLICITORS : Office of the Director of Public Prosecutions Legal Aid Commission of NSW (Accused) - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST BELL J Wednesday 22 August 2007 2506/2006 Regina v John David Biggs JUDGMENT – adjournment application to permit election for trial by judge alone 1 BELL J: On 15 August 2007 I adjourned the trial of the accused on the application of Mr Austin and with the consent of the Crown Prosecutor to Thursday 16 August 2007. These are my reasons for granting the application. 2 The trial was fixed by Barr J on 1 December 2006 to commence at Dubbo on 13 August 2007 with an estimate that it would take three weeks. The arraignment of the accused was deferred on a number of occasions to permit him to be medically examined to address psychiatric and cognitive issues. 3 On 2 February 2007 the venue of the trial was changed to Bathurst because the Dubbo Court House was not available. 4 On 6 July 2007 the accused was arraigned before Barr J and he entered a plea of not guilty. The trial date was confirmed. 5 On 13 August the trial was stood over to 15 August on Mr Austin's application, which was consented to by the Crown Prosecutor. Mr Austin informed the Court that he was in possession of a report from Dr Westmore who was of the opinion that the accused had the defence of mental illness available. A copy of Dr Westmore's report had been served on the Crown and as a consequence the Crown had retained Dr Neilssen to assess the accused. Dr Neilssen had interviewed the accused but his report was not to hand. Mr Austin did not wish the trial to commence without knowing what it was that Dr Neilssen may say. 6 One matter raised on 13 August was the possibility that Dr Neilssen's report may provide a foundation for the partial defence of substantial impairment provided by s 23A of the Crimes Act 1900 (NSW). Mr Austin indicated that in the event the issue at trial was confined to the defence of mental illness, the accused would wish to be tried by judge alone. No election had been made, since Mr Austin acknowledged that a trial by judge alone would not be appropriate were the partial defence provided by s 23A to be an issue between the parties. 7 On the morning of 15 August Mr Austin applied to adjourn the trial to the following day to permit his client to file an election for trial by judge alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) (the CPA). In support of his application Mr Austin informed the Court that Dr Neilssen's report had not become available until late on 14 August and that the defence of mental illness was seen as the sole issue in the trial. The accused wished to be tried by judge alone and the application for adjournment was made in order to comply with the requirements of s 132(4) of the CPA. 8 Section 132(4) of the CPA provides: An election must be made before the date fixed for the person's trial in the Supreme Court or District Court. 9 The Crown Prosecutor informed the Court that the Crown was willing to consent to the accused's trial proceeding before a judge alone. He raised for consideration the scope and effect of s 132(4), drawing to the Court's attention the decision of the Court of Criminal Appeal in R v Perry (1993) 29 NSWLR 589. 10 Mr Austin submitted that if his application was granted and the trial adjourned to commence on Thursday 16 August, the requirements of s 132(4) would be met. He noted that there was no fault on the part of the accused arising out of the late notice of the intention to elect to be tried by judge alone. The accused's wishes in this respect had been foreshadowed at an earlier time, but until the question of the psychiatric defences had been resolved, it had not been practical to make the election. 11 In Perry the election for trial by judge alone was made on the day fixed by the Judge for trial. Abadee J (with whose judgment Gleeson CJ and Meagher JA concurred) observed that s 32 (as s 132 was then numbered) was "somewhat inflexible". Notwithstanding that the defence and Crown had consented to the course that was taken, the Court allowed the appeal and directed a new trial by reason of the procedural irregularity. Abadee J observed: The words used, in particular, in s 32(4), are "must be made". The word "must" would suggest that the provision is thus a mandatory provision. 12 The circumstances of this application were somewhat closer to those considered by the Court of Criminal Appeal in R v Coles (1993) 31 NSWLR 550. In that case a notice was issued by the Criminal Listing Directorate specifying that the matter would be listed for trial on 23 November 1992 at Broken Hill. On that day the trial Judge was informed by counsel appearing for the accused of a difficulty with empanelling the jury, which arose because of late service of witness statements. In the absence of the jury panel counsel raised the possibility of the matter proceeding as a trial by judge alone. The Judge drew attention to the requirements of s 32 of the CPA. The solution proposed by the Crown Prosecutor, and assented to by counsel for the appellant, was to release the jury panel and for the trial to be re-fixed for hearing the following day to permit an election to be filed with the Registrar before the date fixed for trial. The election was duly prepared and signed and dated 23 November. The following day the appellant was arraigned and the election tendered and the trial proceeded without a jury. 13 Wood J (with whose judgment Finlay and Grove JJ concurred) noted that the initial allocation of a hearing date is often a nominal one. His Honour observed that cases which are "fixed" for trial are on occasions not reached and that cases may be adjourned for cause on the day appointed for trial, either because the Crown or the accused is not ready. Such cases are re-fixed. His Honour noted that the practice with country circuits and in some metropolitan courts, where there are running lists, may involve either no specific date being fixed or a date which is nominal. His Honour went on to say this (at 553): I am not prepared to construe s 32 so as to exclude the possibility of a new date for trial being fixed by the trial judge. It seems to me, as a matter of principle, that is what occurs when a matter is stood out of a daily list, and listed for a new date. I am unable to identify any satisfactory basis for framing a distinction which would be dependent on the reason for the adjournment or the re-fixing of the trial. This does not mean that s 32(4) is stripped of all practical application. It remains a matter for the trial judge to refuse an adjournment, or request to stand the matter over to another day, where the purpose is only to secure a non jury trial. If it appears to a trial judge, in the position in which McDevitt DCJ found himself, that judge shopping is taking place, or that there is a reasonable apprehension of that occurring then the adjournment can be refused, and the matter forced on for hearing on the day first fixed for trial. 14 In the circumstances of Coles it was held that there had been not the slightest risk of "judge shopping" or of the appearance of "judge shopping". The sittings were at Broken Hill and formed part of a proclaimed sittings presided over by a single judge, whose identity was well-known prior to the sittings commencing. The Court held that the legislation had left open the procedure that had been followed and that the relevant date for trial for the purposes of subsection (4) was the date re-fixed by his Honour on the application of the appellant's counsel. 15 In Coles, Wood J also said this (at 553); Initially, I entertained concern that the procedure followed was a stratagem, admittedly adopted with the consent of the Crown, to avoid the clear legislative intent referred to in R v Perry, and as such should not be permitted. 16 Mr Austin's application was frankly advanced with a view to permitting an election to be made by the accused (and consented to by the Director of Public Prosecutions) so that the trial might proceed by judge alone. It seemed to me that the clear legislative intent to which Wood J referred in Perry is that described by Gleeson CJ (at 594): I have no doubt that one of the legislative purposes underlying s 32(4) of the Criminal Procedure Act is concerned with an important matter of appearances. One of the reasons why legislation provides that an election for trial without jury must be made before the date fixed for trial is that if an election could be made on the date fixed for trial, it might appear that accused persons were making such elections in the light of a knowledge of the identity of the trial judge. It is, of course, impossible to eliminate altogether appearances of that kind, and there may well be circumstances in which elections will in fact be made in the light of some knowledge of the identity of a trial judge. However, it clearly goes someway towards eliminating such appearances if elections have to be made before the trial date. 17 Grove J in Coles identified the most important legislative purpose underlying s 32(4) as inhibiting "judge shopping" and, so far as practicable, eliminating the appearance of the same. 18 No question of judge shopping or the appearance of the same arises in the circumstances of this case. It was known to the parties well in advance of Monday 13 August that I would be the trial judge. In the week prior to 13 August my Associate made contact with the parties to inform them that the Court would not be sitting in the trial on Friday 17 August. My Associate had been informed that the Crown would not have its psychiatric report available on 13 August. In these circumstances I had directed that the jury panel be summonsed for Wednesday 15 August. The forensic consideration that inhibited an election under s 132 of the CPA being made prior to 15 August did not depend on the identity of the Judge, but related to the contents of Dr Neilssen's report. 19 In these circumstances, while the application for an adjournment was plainly advanced in order to permit the accused to elect to be tried by judge alone, I did not consider this to be a stratagem to avoid the clear legislative intent of s 132(4) of the CPA. 20 The experience of the Court in trying persons charged with murder is that in cases where the sole issue is mental illness it is common for the Crown to consent to trial by judge alone. In these cases normally no factual issue of substance falls for determination. Unlike the partial defence of substantial impairment, no question arises of a judgment as to whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. The issue involves an assessment of expert psychiatric opinion and the application of the McNaghton rules to the facts in light of the psychiatric evidence. The experience of the Court is that trials by judge alone on such an issue are likely to be substantially shorter than a trial with a jury. 21 In Coles Wood J noted the power of the trial judge in the exercise of discretion to refuse an adjournment in a case in which it appeared that judge shopping was taking place. In a case such as the present, in which no such suggestion could reasonably be made and in which the interests of justice in the efficient conduct of the trial consistent with the wishes of the accused and the Crown would be promoted by the adjournment, I considered the proper exercise of discretion favoured the grant of it. 22 Taking into account the judgment in Coles with respect to the meaning of the words "the date fixed for the person's trial" in s 132(4), I considered that an election consented to by the Director of Public Prosecutions on 15 August would admit of a trial by judge alone on the refixed date of trial provided I was satisfied that the accused, before making the election, had sought and received advice in relation to the election from an Australian legal practitioner. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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