Supreme Court New South Wales Medium Neutral Citation: R v Jenkin [2018] NSWSC 634 Hearing dates: 30 April – 1 May 2018 Date of orders: 01 May 2018 Decision date: 01 May 2018 Jurisdiction: Common Law Before: Hamill J Decision: (1) Leave is granted pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) (2) Order that the accused is to be tried by Judge alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) Catchwords: CRIMINAL LAW – trial by Judge alone – application brought late – whether leave should be granted – where prosecution consent to a trial by Judge alone – operation of statute – application granted Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 132, 132A Cases Cited: R v Simmons; R v Moore (No 4) [2015] NSWSC 259 Category: Procedural and other rulings Parties: Regina Mark Kenneth Jenkin Representation: Counsel: Mr M Fox (Crown) Mr P Lowe (Accused) Solicitors: Director of Public Prosecutions NSW (Crown) O'Brien Solicitors (Accused) File Number(s): 2015/00345562 Publication restriction: No Ex Tempore Judgment (REVIsed) 1. The accused Mark Jenkin makes an application under s 132 of the Criminal Procedure Act 1986 (NSW) for a trial by judge order. Because the application was made late, that is to say less than 28 days before the date fixed for the trial, he is required to obtain the leave of the Court before such an application can be made: see s 132A of the Criminal Procedure Act. 2. I have in previous cases expressed concern about the late notice of applications such as this and the appearance that that gives. [1] However, in the present case, an affidavit of his solicitor, that is Mr Jenkin's solicitor, sets out the reasons for the late application. The first of those is that, for reasons beyond control of the solicitor and beyond the control of Mr Jenkin, counsel was briefed late and Mr Jenkin did not receive advice about s 132 until 9 April 2018. As I said in the course of argument last week, that is something that solicitors with the experience of those retained by Mr Jenkin could have advised him upon. In any event, I accept that he was not so advised. 3. Second, only relatively recently, although in accordance with the notice requirements, did the prosecution provide a tendency notice. At least part of the application for a Judge alone trial is based upon the evidence to be tendered pursuant to the tendency notice, and the prejudice that might flow from that evidence. The accused has also been making applications for severance of counts and for separate trials from his co-accused. The application for a separate trial was successful but the application for severance was refused yesterday. I accept in the particular circumstances of this case, that this too raised questions relevant to the application for a Judge alone trial. 4. Further he was previously to be tried with two co-accused, a Mr Turner and a Mr Cowan. The Crown agreed to separate his trial from that of Mr Turner. Mr Turner has never indicated a desire to be tried by Judge alone. Mr Cowan looked like he may consent but then changed his mind last weekend. The application for trial by Judge alone could not succeed in the absence of an application by all co-accused. Once Mr Cowan's case was separated, counsel for Mr Jenkin immediately asked if I would entertain the application and of course I indicated that I would. That occurred yesterday. 5. To this point the Crown has steadfastly opposed an application for a Judge alone trial and filed written submissions to that effect. Time has been set aside in order to entertain this and other pre-trial applications. However, this morning when I came onto the bench at 10 past 10 (there being some delay in having the accused brought into Court) I was advised by the Crown Prosecutor that the Director had reconsidered his position overnight and now consents to a trial by Judge alone. 6. On my own analysis of the matter, based upon the evidence, written submissions and oral submissions made yesterday – and while I had come to no conclusion one way or the other, other than that I was probably inclined to let the trial run before a jury but was awaiting further submissions on particular topics – I did form the view that the application had real substance. 7. For all of those reasons, I have come to the view that the accused should have leave under s 132A to make an application for an order for a trial by Judge alone under s 132. 8. Section 132 subs(2) indicates: "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." 1. Accordingly, there is no real discretion and the merits of the matter do not arise as the section requires me to make this order, provided I am satisfied that the accused has sought and received advice in relation to the effect of such an order. I take it from the affidavit material Mr Lowe that you would say that that has been established satisfactorily: MR LOWE: We have given the advice and he has given those instructions. HIS HONOUR: Well I am so satisfied on your say-so, and accordingly, I make an order that the accused Mark Kenneth Jenkin be tried by Judge alone. 1. I make the following orders: - 1. Leave is granted pursuant to s 132A Criminal Procedure Act 1986 (NSW). 2. Order that the accused is to be tried by Judge alone pursuant to s 132 Criminal Procedure Act 1986 (NSW). ********** Endnote 1. R v Simmons; R v Moore (No 4) [2015] NSWSC 259 at [18]-[32]. Amendments 09 May 2018 - 9 May 2018 - typographical correction 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: 09 May 2018