R v Gokhan Eyuboglu [2019] NSWSC 181

R v Gokhan Eyuboglu [2019] NSWSC 181

The requirement for leave to bring a late application for trial by judge alone should not, in this case, be used to override the parties' unanimous position merely because the judge was concerned that the foreshadowed defences involved community standards. Leave was justified because the Crown did not oppose it, judge shopping was not suggested, the defence position had developed, the application was made before the trial date, and obtaining instructions from the accused may have been difficult due to schizophrenia. Once leave was granted, s 132(2) mandated an order for trial by judge alone because the Crown and accused agreed.

Jurisdiction
Australia
Judgment Date
21 February 2019
Procedural Posture
Criminal Proceedings on an Indictment Containing a Single Count of Murder / Application by the Accused for Leave and an Order for Trial by Judge Alone
Outcome
Leave granted; application granted; trial to proceed by judge alone.
Legal Topics
['murder' 'trial by Judge Alone' 'leave for Late Application' 'mental Illness Defence' 'substantial Impairment' 'community Standards']
['criminal Law' 'criminal Procedure'] ['murder' 'trial by Judge Alone' 'leave for Late Application' 'mental Illness Defence' 'substantial Impairment' 'community Standards']

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Procedural Posture

Criminal Proceedings on an Indictment Containing a Single Count of Murder / Application by the Accused for Leave and an Order for Trial by Judge Alone

Legal Issues

  1. 1 ['Whether leave should be granted for a late application for trial by judge alone under s 132A(1) of the Criminal Procedure Act 1986 (NSW).' "Whether the judge's concern about the appropriateness of a judge-alone trial where the foreshadowed defences involve community standards could justify refusing leave despite the Crown not opposing leave and both parties agreeing to judge-alone trial." 'Whether, once leave is granted and the Crown and accused agree, s 132(2) of the Criminal Procedure Act 1986 (NSW) requires an order for trial by judge alone.']

Ratio Decidendi

The requirement for leave to bring a late application for trial by judge alone should not, in this case, be used to override the parties' unanimous position merely because the judge was concerned that the foreshadowed defences involved community standards. Leave was justified because the Crown did not oppose it, judge shopping was not suggested, the defence position had developed, the application was made before the trial date, and obtaining instructions from the accused may have been difficult due to schizophrenia. Once leave was granted, s 132(2) mandated an order for trial by judge alone because the Crown and accused agreed.

Court Disposition

Leave granted; application granted; trial to proceed by judge alone.

Orders

  • ['The trial of R v Eyuboglu, listed to commence on 4 March 2019, is to proceed by way of judge alone before Button J.']