R v Robert Bretherton [2013] NSWSC 1036

Supreme Court New South Wales

Medium Neutral Citation: R v Robert Bretherton [2013] NSWSC 1036 Hearing dates: 2 August 2013 Decision date: 06 August 2013 Before: Harrison J Decision: Application for a trial by judge order pursuant to s 132(1) Criminal Procedure Act 1986 is dismissed Catchwords: CRIMINAL LAW - application by accused for trial by judge alone - charge of murder - plea of guilty to manslaughter - single issue of diminished responsibility by reason of substantial impairment caused by an abnormality of mind - whether application of objective community standards - whether in the interests of justice to make trial by judge order Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Cases Cited: Arthurs v State of Western Australia [2007] WASC 182 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 R v Majdalawi [2000] NSWCCA 240; (2000) 113 A Crim R 241 R v Trotter (1993) NSWLR 428 Category: Procedural and other rulings Parties: Crown Robert Bretherton Representation: Solicitors: Director of Public Prosecutions (Crown) Purcell Lawyers (Accused) Counsel: P Barnett SC (Crown) S Corish (Accused) File Number(s): 2011/367057 Publication restriction: Nil

Judgment 1HIS HONOUR: The accused is due to stand trial commencing on 26 August 2013 in Newcastle on an indictment charging that on 16 November 2011 at Bellbird in the Sate of New South Wales he murdered Jodie Jurd. The accused has entered a plea of guilty to manslaughter but not guilty of murder. The Crown has not accepted that plea in satisfaction of the indictment. On 2 August 2013 the accused filed an application pursuant to s 132 of the Criminal Procedure Act 1986 for trial by judge alone. He relies upon an affidavit sworn on 1 August 2013 by his solicitor. The application is opposed. 2Section132 is in the following relevant terms: "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)..." 3It is convenient and efficient to observe that s 132(4) is the principal provision requiring consideration in the circumstances of the present application. Some attention is also given to s 132(5).