R v Batcheldor [2015] NSWSC 1300

Supreme Court New South Wales

Medium Neutral Citation: R v Batcheldor [2015] NSWSC 1300 Hearing dates: 25 August 2015 Date of orders: 07 September 2015 Decision date: 07 September 2015 Jurisdiction: Common Law Before: McCallum J Decision: Application for trial by judge alone refused Catchwords: CRIME - application for trial by a judge alone - whether in the interests of justice – complexity and potential prejudice surrounding issue as to applicant's state of mind Legislation Cited: Crimes Act 1900 (NSW), s 18 Criminal Procedure Act 1986 (NSW), ss 131, 132, 132A Cases Cited: Batcheldor v R; Walsh v R [2014] NSWCCA 252 R v Belgar [2012] NSWCCA 86; 217 A Crim R 1 R v Dean [2013] NSWSC 661 R v Gittany [2013] NSWSC 1503 R v Stanley [2013] NSWCCA 124 Category: Procedural and other rulings Parties: Regina Lauren Mae Batcheldor (Accused/Applicant) Representation: Counsel: B Hatfield (Crown) D Dalton SC (Accused/Applicant)

Solicitors: File Number(s): 2010/47811 Publication restriction: Not to be published until after conclusion of trial

Judgment 1. HER HONOUR: Lauren Batcheldor stands charged with the specially aggravated kidnapping of Matthew Digby and with his murder. The events giving rise to those charges occurred between 22 January 2010 and 25 January 2010. The accused was previously tried jointly with Richard Walsh. Walsh was alleged to have killed the deceased; Ms Batcheldor was alleged to have been complicit in the murder. Each was found guilty of both charges. The Court of Criminal Appeal subsequently quashed Ms Batcheldor's conviction and ordered a new trial. Walsh's appeal was dismissed: Batcheldor v R; Walsh v R [2014] NSWCCA 252. 2. Ms Batcheldor's new trial is listed to commence on 21 September 2015. This judgment determines her application for an order pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) that, on this occasion, she be tried by a judge alone. 3. The applicant required leave to make the application as it was made less than 28 days before the date fixed for trial: s 132A of the Act. The application was foreshadowed at a directions hearing on 17 August 2015 (35 days before the trial date) but was not brought until 25 August 2015 (27 days before the trial date). The matter was previously listed for trial on an earlier date but that date had to be vacated due to the illness of counsel then briefed to appear for the applicant. Mr Dalton SC, who appeared for the applicant at the first trial, was overseas at the time of those events. Whilst overseas, he accepted the brief to appear at the adjourned trial and, in doing so, accommodated dates suitable to the Crown. In the circumstances, the Crown did not oppose leave to make the application and I considered that it should be granted. 4. Section 131 of the Criminal Procedure Act provides that, except as otherwise provided in the Act, criminal proceedings in the Supreme Court or the District Court are to be tried by a jury. Section 132(2) provides that if both the accused and the prosecutor agree to a trial by judge order, the Court must make the order. If the prosecutor does not agree, the Court has a discretion to make such an order if it is in the interests of justice to do so: s 132(4). The Crown does not agree to a trial by judge order in the present case. 5. I considered the principles relating to an opposed application for trial by judge alone in R v Gittany [2013] NSWSC 1503 at [2] to [9]. For the reasons there stated at [6] to [8], it must now be taken to be a binding statement of principle that there is no presumption in favour of trial by jury which must be rebutted before an order for trial by judge alone can be made: R v Belgar [2012] NSWCCA 86; 217 A Crim R 1 at [96] per McClellan CJ at CL; R v Stanley [2013] NSWCCA 124 at [42] per Barr AJ, Macfarlan JA and Campbell J agreeing at [1] and [2] respectively; R v Dean [2013] NSWCA 661 at [52] per Latham J. However, although not burdened by any such presumption, the applicant bears an evidentiary burden to establish that a trial by judge alone is in the interests of justice. 6. The Crown case is summarised in detail in the judgment of the Court of Criminal Appeal at [5] to [35]. The Crown indicated that that summary would provide an adequate indication of the Crown case for the purposes of the present application. 7. Mr Dalton submitted that it is in the interests of justice that the applicant be tried by a judge alone for four reasons (which, upon analysis, may reduce to three): 1. the fact that the applicant has previously been found guilty of the charges; 2. the degree of adverse media publicity regarding the applicant (including publicity as to the prior conviction and the subsequent successful appeal) the effect of which it was submitted would be highly prejudicial; 3. the complexity of the legal issues involved; 4. the transparency that would attend a trial by judge alone due to the obligation of a judge to give reasons. 1. In support of the application, Mr Dalton read the affidavit of Matthew John Barnes sworn 25 August 2015. The Crown read the affidavits of Detective Inspector Andrew Marks and Nicholas Scully affirmed and sworn respectively on 24 August 2015.