District Court New South Wales Medium Neutral Citation: R v GSR (2) [2011] NSWDC 16 Hearing dates: 9 -10 February 2011 Decision date: 10 February 2011 Jurisdiction: Criminal Before: GD Woods QC DCJ Decision: Application for Judge Alone Trial Refused Catchwords: Trial by judge alone Trial by jury Commencement of proceedings Amendment of indictment Duplicity NSW Crimes Act S45, "excision of clitoris not being necessary for the health" Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Courts and Crimes Legislation Further Amendment Act 2010 Cases Cited: GG v R [2010] NSWCCA 230 R v Howard (1992) 29 NSWLR 242 R v Taylor [2003] NSWCCA 194 Category: Procedural and other rulings Parties: The Crown GSR Representation: Counsel: Margaret Cunneen SC (Crown) John Stratton SC (accused) Solicitors: Director of Public Prosecutions (NSW) Ken Scurr (accused) File Number(s): 2008/77882 Publication restriction: Suppression Order In Respect Of Accused's Identity And Name Of Towns To Which The Events Relate Judgment 1This judgment relates to an application by the defence for an order that trial be by judge alone, and an application by the Crown to amend the indictment. These matters are related. 2HIS HONOUR: On 1 November 2010 the accused was arraigned on and pleaded not guilty to each of the following charges: (1) For that he on 8 August 2002 at [...] in the State of New South Wales did maliciously inflict grievous bodily harm upon CDW with an intent to do grievous bodily harm. (2) In the alternative, that he on 8 August 2002 at [...] in the State of New South Wales did excise the clitoris of CDW. 3During the course of the trial, two significant changes were made to the indictment. One was the amendment of count 2, made on 3 November, to include the words 'it not being necessary for the health of [CDW]', that being an element of the offence charged under s. 45 of the NSW Crimes Act. On 22 November there was an amendment of the indictment by the deletion of count 1, following my ruling that counts 1 and 2 together were effectively duplex. 4The jury was directed that it was not required to reach a verdict on count 1. Count 2 was left to the jury but it could not agree and was discharged on 25 November 2010. The accused was granted continuing bail and the matter was stood over until 31 January 2011. 5Facing trial again, the accused GSR has duly filed an election under s.132 of the Criminal Procedure Act for trial by judge alone. The Crown has withheld its consent to that election and an issue arises as to whether or not the court may, under s.132(4), override the Crown's veto of the accused's election. 6Section 132 of the Criminal Procedure Act currently reads as follows: 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) ..." 7The initial question is as to legal power. 8The current version of s. 132 of the Criminal Procedure Act was introduced by the Courts and Crimes Further Amendment Act, Schedule 12.2 and came into force on 14 January 2011. (This, it is to be noted, is after the failure of the jury to reach a verdict in the trial of November 2010 but before the date when the accused was required to attend court in 2011 for further trial.) 9The statute amending section 132 included a transitional provision as follows: "70. Changes to trial or judge alone provisions. Section 132 as in force before its substitution by the Courts and Crimes Legislation Further Amendment Act 2010 continues to apply to criminal proceedings that were commenced in the ... District Court before that substitution." 10The trial of the accused is currently set for Monday 14 February 2011. In order to determine the mode of trial, it is necessary firstly to decide whether what is now before the court is "... criminal proceedings that were commenced ... in the District Court" before 14 January 2011. If so, there will be trial by jury. If not, the mode of trial will be either by jury or judge alone, subject to argument. 11The Crown submits that there is no power for the court to veto the Crown's refusal to consent to trial by judge alone. 12The Crown cites GG v R [2010] NSWCCA 230 at 68: "There is no doubt that the presentment of the indictment and arraignment of the accused person marks the commencement of the trial." The Crown argues that criminal proceedings in relation to this trial commenced in the District Court at the time of first arraignment on 1 November 2010. 13The Crown says that the amendments to the indictment did not bring the proceedings to any conclusion, that the originating process which commenced with the arraignment of the accused on 1 November 2010 continues to have effect, and that the new law does not apply. 14Part 3 of the Criminal Procedure Act 1986 is entitled "Trial Procedures". Section 130 states, relevantly, "1. In this section "court" means a Supreme Court or District Court. 2. The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned and any orders that might be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial" (emphasis added) 15In the case of GG v R the Court considered the line of authority which has determined that a trial commences with arraignment, and noted (at 69) that these cases must now be read with reference to the terms of section 130. The Court stated at 71: "The effect of s 130, therefore, is that the Supreme and District Courts have jurisdiction once the indictment is presented and the accused person is arraigned, and may engage in pre-trial processes prior to the empanelment of the jury." In light of GG and section 130, the Crown argued that the arraignment of the accused on 1 November 2010 marked the commencement of criminal proceedings in the District Court. 16The Crown cited R v Howard (1992) 29 NSWLR 242 where the CCA, (at 247) considered how proceedings for an offence on indictment might be brought to a conclusion in one of three ways: trial, plea of guilty or the entry of a nolle prosequi. The Court held that in presenting a new indictment for murder (even though the accused had previously been arraigned but not tried for manslaughter) the Crown had communicated to the Court the entering of a nolle prosequi in relation to the manslaughter indictment. 17The Crown argues here that it is now proceeding with an indictment which pleads the same offence as presented in first trial which commenced on 1 November 2010. The Crown has not, in terms or impliedly, communicated to the Court the entry of a nolle prosequi as in Howard. The Crown argues that the proceedings which commenced on 1 November 2010 have not been brought to a conclusion by any of the three identified means referred to in Howard, or otherwise. 18The decision of Howard was also considered by the Court in R v Taylor [2003] NSWCCA 194. In that case, the appellant was first arraigned on 5 October 2001 before Kirby J on an indictment that charged him with the murder of Adam Scott. The indictment was dated 26 September 2001 and signed by a Crown Prosecutor on behalf of the Director of Public Prosecutions. The appellant entered a plea of not guilty and the trial was fixed for hearing. On the date when the appellant was called for trial, the indictment presented was not the indictment which had been presented before Kirby J on 5 October 2001. This indictment differed in two respects only. It was now dated 25 March 2002 and was signed by a different Crown Prosecutor. The appellant was arraigned and pleaded not guilty. A jury was empanelled and the trial proceeded. The appellant was convicted. 19The Court in Taylor held that the presentment of the second indictment on 25 March 2002 did not signal the conclusion of the indictment first presented on 5 October 2001. The Court stated at 148, "The presentation of an indictment charging the appellant in the same terms, but signed by a different Crown Prosecutor, did not amount to communication to the Court of a determination by the Director of Public Prosecutions that there be no further proceedings upon the indictment charging the appellant with the murder of Adam Scott. The indictment upon which the appellant was arraigned before Kirby J was not brought to a conclusion in any of the ways identified in Howard." 20The Crown argued that the present circumstances can be likened to the case of Taylor. The indictment presented on 1 November 2010 has not been brought to a conclusion in any of the ways identified in Howard and Taylor. The indictment stands, and may now be further amended. 21Mr Stratton SC for the accused argued that the circumstances of the first inconclusive trial were such that the new law concerning judge alone trials does now apply. 22He submitted that in the present case, the indictment upon which the Crown seeks to rely is not the same as the indictment finally relied upon in the first trial. The position in the present case is not the position in Taylor, where the accused was arraigned on an indictment in identical terms to the indictment upon which the accused was first arraigned. 23Mr Stratton further submitted that in the present case, each count on the indictment is defective for different reasons. On 22 November 2010 the court ruled that the indictment was defective because it was duplicitous, and ruled that count 1 should be deleted. Mr Stratton submits that count 2 was also defective, in that it did not contain an element of the offence, namely 'it not being necessary for the health of [CDW]'. 24Finally he submitted that in substance and reality, the Crown must now present a different indictment to that presented on 1 November 2010. It follows that the current version of s. 132 Criminal Procedure Act applies, and the Court may order that the trial proceed by judge alone even without the consent of the Crown. 25The trial of the accused in November 2010 was quite unusual. Count 1 was based on a common provision, s.33 of the Crimes Act, much litigated and glossed. Count 2 was based on a new provision, not previously litigated, in which the Parliament disapprobated in New South Wales the cultural practice of ritual female "circumcision" as practised by certain tribal groups of North African background. 26I formed a certain view, and gave a brief judgment on 22 November 2010, as follows: "In this matter at the conclusion of the evidence and counsel's submissions, but before the summing-up, it has become apparent, on the basis of the way the trial has been conducted and rulings made by me as to the applicable law, that there is no substantial difference between count 1 and count 2. This arises even though the charges are structured on the basis of quite different provisions of the Crimes Act - count 1, based on s. 33 & 35, and count 2 based on s.45. Effectively, the two charges are duplicitous. In terms of s.21(1) of the Criminal Procedure Act 1986, the indictment is "defective". However the merits of the case and the interests of justice can be effectively served simply by amending the indictment to delete count 1 from the consideration of this jury. I am of the opinion, in terms of s.21(2) of the Act, that the accused would be prejudiced or embarrassed in his defence if the trial were to proceed on the indictment as presently structured. Theoretically I might order a separate trial on count 1. However if this trial proceeds to finality on count 2, it seems to me that any subsequent trial on count 1 would either be barred as res judicata (if not autrefois convict or acquit), or at least stayed as an abuse of process. For this reason I adopt the course of utilising s.21(1) rather than s.21(2). Accordingly I order that the indictment be amended by the deletion of count 1 from the consideration of the jury, and I will mark the indictment accordingly." 27Prior to giving this judgment I had asked counsel how I might be assisted in my directions to the jury I said, transcript p 703: "Now I'm going to go off the bench for about 20 minutes while you settle a form of words which assists me to direct the jury precisely how the second charge is an alternative. And what I should tell them would be a possible basis upon which they could reach, "not guilty" (one), "guilty", (two). Very well, I will go and have a cup of tea while you do that. Thank you." 28Following the luncheon adjournment, counsel were unable relevantly to assist. The following exchange took place (pp.704-705): "CROWN PROSECUTOR: Your Honour, we've twisted it and turned it as much as we can, but in view of your Honour's directions being virtually the same in relation to both, the Crown will elect to proceed only count 2. HIS HONOUR: What do you say about that, Mr Stratton? ... STRATTON: As I understand it, the Crown will seek to amend the indictment by the elimination of count 1, and that will certainly simplify matters for the jury. HIS HONOUR: That's right, effectively, there is then a ... the matter won't be re litigated. So there won't be a verdict on count 1. It will simply be excised from the ... removed from the trial. STRATTON: Yes. HIS HONOUR: And the essential ... the gist of the trial will be litigated on count 2. Just let me have a look at the-- ... HIS HONOUR: Yes. Should we do it by way of a substitute indictment? STRATTON: Your Honour, I'm in my learned friend's hands. ... CROWN PROSECUTOR: Your Honour, it would be my application just that we take it away, on the present indictment, just to strike it out. HIS HONOUR: Strike it out. I think that's the easiest way to do it. CROWN PROSECUTOR: And after all, it shows the history of the matter. HIS HONOUR: It shows the history, yes. Yes, very well." 29Mr Stratton argues that although count 2 now has a continuing forensic life, count 1, as presented at the arraignment in November 2010, has been abandoned by the Crown and is forensically dead. Count 1, Mr Stratton says, may only be revived by the presentation of a new indictment. Its commencement will be when the new trial starts - presumably 14 February 2011. This postdates 14 January 2011, so the new section 132 applies and thus there may be trial by judge alone notwithstanding the Crown's purported veto. 30The Crown argues that notwithstanding the exchanges at transcript pp. 703-704, and notwithstanding the purported "deletion" of count 1 from the indictment, the original indictment is still forensically alive. The proceedings "commenced" in November 2010; no trial has been completed; there has been no plea of guilty; and the charges have not been marked nolle prosequi or "no further proceedings". 31Submitting that the original indictment is still alive, the Crown seeks orders to amend it by ruling count 1 back in, and severing count 2. 32I remain of the view that counts 1 and 2 are effectively duplicitous. In my opinion, if count 1 is litigated to finality, it will not be open to the Crown to prosecute the accused for count 2 - the "autrefois" plea, or the doctrine of res judicata, or the doctrine of abuse of process, would in reality probably prevent it. However I am not making a decision about this, which is hypothetical. 33Mr Stratton points out that in my judgment of 22 November 2010, I specifically relied on section 21(1) of the Criminal Procedure Act, rather than on section 21(2). These provisions are as follows: "21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment." 34Note that section 21(1) does not use the word "delete", used by me in my judgment; nor does it use the word "strike out", employed by Madam Crown at transcript p. 705 line 25 - "strike it out". 35On reflection, now being removed from the white heat of an ongoing and complex trial, it is clear that I was not making an order that count 1 should be quashed or regarded, by itself, as a nullity. The vice was not in count 1, but in the combination, in the same indictment, of counts 1 and 2. A judge does not have any power during a trial simply to cancel or nullify a charge before the court. With some qualifications, the selection and prosecution of charges before the court is a matter for the DPP or the Attorney-General. These are executive, not judicial decisions. 36On 22 November 2010 I did not have the legal authority to quash or abrogate any count in the indictment. I had a power to amend. It may perhaps be unfortunate that I used the term "delete" when, under section 21(1), I only had the power to "amend". While the Crown used the term "strike out" at p. 705 line 25, I thought at that time and believe now that she used the expression merely for the purpose of the trial then immediately ongoing. She was not authorised over the luncheon adjournment on 22 November 2010 to enter a "no further proceedings" or "No Bill" direction and did not purport to do so. While it is true, as Mr Stratton says, citing Howard's case at p.248, that "No particular formality is necessary" (for a No Bill), nonetheless such a direction cannot be manufactured out of the possibly loose language of Judge or Crown Prosecutor in the hurley burley of trial. 37As I see it, the proceedings commenced when the accused was arraigned in the absence of the jury on 1 November 2010, on an indictment. 38At that stage, count 2 alleged simply that the accused "did excise the clitoris of [CDW]". 39During argument I pointed out to the Crown that this did not mention what was a statutory element of the charge - that the excision be "not necessary for the health of [CDW]". The Crown sought to amend, and I allowed this amendment, without objection by the defence. 40When the trial opened before the jury on 3 November 2010, a substitute piece of paper headed "Indictment" was the basis of the arraignment. It was dated 3 November 2010. Of course the mere substitution of the piece of paper, and the amendment, did not detract from the legal position that the "proceedings" commenced on 1 November. 41Likewise, in my view, notwithstanding the further amendment of 22 November, the "proceedings" still had "commenced" on 1 November 2010. 42Among the numerous decisions in this general area, it is necessary to remember that various transitional provisions are worded differently. The "commencement of proceedings" is different from the "commencement of a hearing", the "institution of proceedings", or the "institution of proceedings for the offence". 43Some degree of uncertainty which affects the law of this general area is reflected in paragraph 100 of the judgment of Beazley JA in GG v R [2010] NSWCCA 230: "However, I accept that the position is not clear and it may be that the hearing of the trial commences upon the first arraignment after the indictment has been presented. Notwithstanding that there may be some uncertainty on this point, it does not affect the position in this case, as the appellant was not arraigned prior to 1 January 2009. Accordingly, it is not necessary to finally determine whether a trial, that is, a criminal proceeding on indictment, commences at the time of the first arraignment, regardless of whether that was in the presence of the jury to be empanelled. In the appellant's case, the hearing of his trial commenced on 23 March 2009, after the commencement of s 165B." 44Noting the possible uncertainties and having carefully considered the helpful submissions of senior counsel, my reasoning is as follows: The proceedings against the accused commenced on 1 November 2010 when he pleaded not guilty to 2 counts on an indictment. The indictment was amended on 3 November 2010 and words were added to count 2. The fact that another piece of paper was substituted is irrelevant. On 22 November 2010 the indictment was amended pursuant to my judgment of that date. Count 1 was removed and was not left to the jury for resolution. Count 2 was left to the jury. Ultimately the jury could not agree and no verdict was rendered. Nothing that occurred in court or out of it on 22 November 2010 nullified, quashed or terminated the forensic life of the indictment. The fact that the jury could not reach a verdict on count 2 left the indictment with continuing legal force as part of a criminal proceeding which had commenced on 1 November 2010 and which had not yet been terminated. Continuing bail was granted to the accused until 31 January 2011, without specification as to what charges he would then face. The Crown now seeks to rely on the indictment previously presented and asks for the amendment of the indictment to restore count 1, and the severance of count 2. In my view the power to amend under s.21 of the Criminal Procedure Act has not ceased merely because the first jury could not agree. I do not accept the defence submission that the Crown could now only proceed as proposed by way of ex officio indictment on count 1. The Crown does not purport to do so and relies on the continuing viability of the present indictment in whatever way it has been amended to date. I accept this argument. There is no unfair prejudice to the accused in proceeding as the Crown proposes. Amendment to restore count 1 creates no forensic surprise or unfair disadvantage to the accused. He knows the case he has to meet and has, in effect, already done so once. I allow the amendments sought. The indictment is amended by restoring count 1 in its original form. Count 2 is severed and I order its separate trial. Its ultimate fate will be a matter for further determination on another occasion, considering other arguments. Since the proceedings commenced before 14 January 2011, the old version of s.132 of the Criminal Procedure Act applies. Since the Crown does not consent to trial by judge alone, the mode of trial will be by judge and a jury of twelve. I so order. 45My associate will send you by electronic means a copy of that this afternoon and we will resume at 10 o'clock for any consequential discussions. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2011