R v Johnson [2020] NSWDC 153

District Court New South Wales

Medium Neutral Citation: R v Johnson [2020] NSWDC 153 Hearing dates: 30 April 2020 Date of orders: 30 April 2020 Decision date: 30 April 2020 Jurisdiction: Criminal Before: Grant DCJ Decision: Direct trial by judge alone. Catchwords: Trial by Judge alone – Crown opposes application – COVID 19 Pandemic – Business of the court to continue Legislation Cited: Criminal Procedure Act 1986 Covid-19 Legislation Amendment (Emergency Measure) Act 2020 Cases Cited: Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 Brown v The Director of Public Prosecutions (NSW) [2018] NSWCCA 94 R v Stanley [2013] NSWCCA 124 R v Coleman [2020] ACTSC 97 Category: Procedural and other rulings Parties: Regina (Crown) Nathan Johnson (accused) Representation: Counsel: Ms Cook for the accused

Crown: Ms Morgan, Trial Advocate for the Crown

Solicitors: Ms Giannopoulos for the accused File Number(s): 2019/00017894

Judgment

INTRODUCTION 1. The Covid-19 pandemic has turned the world upside down. Over 215 000 people have died from the pandemic. Jury trials in this state have ceased and it is unclear when they will resume. It is against this back drop that Nathan Johnson who has been charged with one count of sexual intercourse without consent, applies for and consents to trial by judge alone. His application is opposed by the Director's representative.

THE COURT AND GOVERNMENT RESPONSE 1. The Chief Judge of the District Court has released various Practice Notes outlining essential adaptation of the Court processes and protocols responsive to the pandemic. Virtual court rooms have become the norm. 2. The Government passed 'emergency legislation' [1] to better equip the Court to function and conduct its business with efficiency in the circumstance of the current pandemic. The emergency legislation amendments that are relevant to this application were incorporated into the Criminal Procedure Act at Part 5. 3. The purpose of Part 5 is set out in section 353 of the act. It provides: "The purpose of this Part is to enable criminal trial in the State to be conducted in a way that is appropriate given the public health emergency caused by the COVID-19 pandemic." 1. The Explanatory Note to the Bill states; "Schedule 1 amends the Criminal Procedure Act 1986 to enable criminal trials to be conducted in an appropriate way during the Covid-19 pandemic, by enabling: (a) a witness in a trial to give evidence before the trial in a pre-recorded evidence hearing, and (b) the original evidence of a witness recorded in a trial to be used in a new trial, and (c) a court to order judge alone trials in certain circumstances." 1. In the second reading speech the Attorney-General said, "…Some of the amendments in the bill are extraordinary, which is why they generally have sunset clauses of between six months to 12 months. The Leader of the House has asked me to be brief, so I will not go into detail with many of the substantive amendments in the bill. The bill amends the Criminal Procedure Act 1986 to enable a judge to order that a relevant witness can give evidence by having their evidence recorded in advance of the trial, to enable a record of evidence given in the trial proceedings to be admissible in a subsequent trial, to facilitate more judge only trials, and to introduce a general regulation-making power for exceptional circumstances. This empowers regulations that will provide for altered arrangements for criminal proceedings, apprehended violence order proceedings, bail sentencing and the administration of sentences. The regulations made under this provision can override the provisions of any Act or other law and are not limited by regulation-making power in a relevant Act…" 1. It is clear from the second reading speech that the intention of the emergency legislation was to empower Courts with capacity 'to continue functioning' and to 'facilitate more judge alone trials'. This is consistent with the 'Purpose of the Part' 5 amendments to the act. 2. Section 365 provides: "365 Judge alone trials (1) A court may, on its own motion, order that an accused person be tried by a Judge alone. (2) A court may make an order under subsection (1) only if— (a) the accused person consents to be tried by a Judge alone or, for a joint trial, all the accused persons consent to be tried by a Judge alone, and (b) if the prosecutor does not agree to the accused person being tried by a Judge alone, the court considers it is in the interests of justice for the accused person to be tried by a Judge alone, and (c) the court is satisfied the accused person has sought and received advice from an Australian legal practitioner in relation to the effect of an order that the person be tried by a Judge alone. (3) This section applies despite any other provision of this Act, including sections 132 and 132A." 1. It is the intent of parliament by reason of sub section (3) that sections 132 and 132A are subordinate to section 365. The purpose of the legislation enables the court to more easily make an order for a trial to be conducted by judge alone.