R v Ravindran [2013] NSWSC 1006

Supreme Court New South Wales

Medium Neutral Citation: R v Ravindran [2013] NSWSC 1006 Hearing dates: 19 July 2013 (In Chambers) Decision date: 19 July 2013 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: On the application of the accused, by and with consent of Terrance Thorpe Esq., Deputy Senior Crown Prosecutor, on behalf of her Majesty, the Queen, and on the grounds set out in the affidavit of Peter Maurice Murphy, Esq., solicitor, sworn on 19th July 2013, the Court orders: (1) Pursuant to s.132A Criminal Procedure Act 1986, grant the accused leave to apply for trial by judge alone; (2) Pursuant to s.132 of the said Act, the accused be tried for murder, commencing on 29th July 2013, by a judge alone without a jury. Catchwords: CRIMINAL LAW - application for judge alone trial Legislation Cited: Criminal Procedure Act 1986 (NSW) Category: Interlocutory applications Parties: Regina (Crown) Joshua John Ravindran (Defendant) Representation: T Thorpe (Crown) S Russell and D Randle (Defendant) Solicitor for Public Prosecutions (Crown) Peter Murphy Criminal Law (Defendant) File Number(s): 2011/133776

JUDGMENT 1The accused has been arraigned on the charge of murdering his father and is standing trial commencing today. 2By notice of motion lodged with my Chambers on Friday 19th July 2013, the accused applied for leave to make application for trial by judge alone. Section 132A Criminal Procedure Act 1986 (NSW) requires the grant of the Court's leave before an application for trial by judge alone made less than 28 days before the date fixed for trial may be entertained. 3In support of the application, and the application for leave, the accused read the affidavit of his solicitor, Peter Morris Murphy sworn on 19th July. The solicitor attached to his affidavit the signed and witnessed statement of the accused confirming that he wishes to be tried judge alone, sitting without a jury, and acknowledging that he has sought and received advice in relation to the effect of such an order from his counsel, Mr. Stephen Russell and Mr. David Randle. He confirms that he understands the advice received and, as I understand paragraph 4 of his statement, that with the benefit of that advice he has made his own free choice to make the application. 4Mr. Murphy has also attached a notice of consent signed on behalf of the Crown by the Deputy Senior Crown Prosecutor, Mr. Terrance Thorpe, who is prosecuting the accused. The learned Crown states that the prosecution does not oppose the grant of leave and "agrees to the accused being tried by judge alone". 5In the body of his affidavit, Mr. Murphy swears that the cause of death of the deceased will be a critical issue in the proceedings. This is consistent with my own knowledge of the case, from my involvement in the management of the case since March of this year. 6From Mr. Murphy's affidavit, and from what I have been told at various directions hearings, I understand that Professor Stephen Cordner, Director of the Victorian Institute of Forensic Medicine was qualified as long ago as May 2012 to provide an opinion for the preparation of the defence. There have been significant delays in obtaining Professor Cordner's report for various reasons, which have been previously explained by the defence, none of which, in my view, relate to a lack of proper forensic diligence on the part of the accused or his legal representatives. 7Mr. Murphy says, consistently with what I was told at the directions hearing on the morning of 15th July 2013, that Professor Cordner's report was finally received that afternoon. 8Following receipt of the report, counsel tendered advice and the accused provided instructions for leave to be sought to enable the application to be made. 9In my judgment the delay in the receipt of Professor Cordner's report provides a satisfactory explanation for the delay in making the present application. Its receipt was necessary for the completion of the defence preparations. Without it, I infer, it would have been difficult for counsel to provide accurate, reliable advice to the accused about which mode of trial was appropriate for his case. 10Accordingly, I granted leave for the application for trial by judge alone to be made late. 11By dint of s.132(2) of the Act, once leave to make the application is granted, the Court must make a trial by judge order if the accused and the prosecutor agree to trial by judge alone. In such circumstance the Act of Parliament allows the judge no discretion. Subject to s.132(6), that is the present case. As I accept the contents of the statement of the accused of 18th July 2013, I am satisfied that he has sought and received advice in relation to the effect of a trial by judge order from an Australian legal practitioner, and accordingly s132(6) is no bar to the making of a trial by judge order. 12I am of the view that s132(5) does not alter this legal outcome, as it only applies in a case to which s132(4) also applies. And that provision comes into play only when the prosecution does not agree to trial by judge alone. 13In all these circumstances, the necessary statutory conditions being satisfied, I am bound in law to accede to the application. 14For these reasons I made orders in chambers on 19th July 2013 in the following terms: On the application of the accused, by and with consent of Terrance Thorpe Esq., Deputy Senior Crown Prosecutor, on behalf of her Majesty, the Queen, and on the grounds set out in the affidavit of Peter Maurice Murphy, Esq., solicitor, sworn on 19th July 2013, the Court orders: (1)Pursuant to s.132A Criminal Procedure Act 1986, grant the accused leave to apply for trial by judge alone; (2)Pursuant to s.132 of the said Act, the accused be tried for murder, commencing on 29th July 2013, by a judge alone without a jury.