R v DLW [2020] NSWDC 205

District Court New South Wales

Medium Neutral Citation: R v DLW [2020] NSWDC 205 Hearing dates: 15 May 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 31 Catchwords: CRIMINAL PROCEDURE – application for trial by judge alone – reliance upon COVID-19 pandemic – weight of interests of justice to the accused and the community as considerations – impact of indefinite delay on commencement of trial Legislation Cited: COVID-19 Legislation (Emergency Measures) Act 2020 (NSW) Crimes Act 1900 (NSW), s 66A Criminal Procedure Act 1985 (NSW), ss 132, 132A, 365 Cases Cited: R v Stanley [2013] NSWCCA 124 R v Swain [2020] NSWDC 198 Category: Procedural and other rulings Parties: Director of Public Prosecutions Mr DLW Representation: Counsel: Ms K Tennant for the Director of Public Prosecutions Mr S Schaudin for the accused

Solicitors: Solicitor for the Director of Public Prosecutions David Kelly Lawyers for the accused File Number(s): 2017/134016 Publication restriction: Non Publication Order on the names of the complainant and the accused, or any information that may identify any of them. Pseudonyms have been used for the names of the complainant and the accused.

Judgment

INTRODUCTION 1. The accused, DLW, is currently in custody and has been since 5 July 2017. The accused faces back-to-back trials. In both trials, he faces serious charges of sexual offences against children. The circumstance that he faces back to back trials is attributable to earlier interlocutory decisions of the Court; which have effectively resulted in his being separately tried in relation to alleged offending conduct against different complainants in different years. 2. In relation to the first of those trials, this has been fixed to commence on 25 May 2020. 3. In relation to the first trial, the accused is charged, on an indictment, with the offences that in 2009, in Budgewoi, he: * had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 6 or 7 years, contrary to s 66A of the Crimes Act 1900 (NSW); * had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 6 or 7 years, contrary to s 66A of the Crimes Act 1900 (NSW); and * had sexual intercourse with a child (BW), who was at that time under the age of 10 years, namely 6 or 7 years, contrary to s 66A of the Crimes Act 1900 (NSW). 1. On 21 April 2020, the accused signed the prescribed form (Form 146) electing to be tried by judge alone. The form contained his written acknowledgement of his having sought and received advice in relation to that election from his barrister. 2. Earlier, on 23 March 2020, the accused had indicated to the Court at call-over of his intention to bring this application for his first trial to be by judge alone. On that occasion, the Court made a series of orders. Relevantly, one of the orders was that if his application for trial by judge alone was unsuccessful, he would receive priority for the first trial from 16 November 2020. Such marking of his case as having priority is no guarantee that it will occur then. If it does not, his first trial may not proceed at all then in 2020. 3. The Crown opposes the accused's application for trial by judge alone.