R v GSR (2) [2011] NSWDC 16

R v GSR (2) [2011] NSWDC 16

The proceedings commenced on 1 November 2010 when the accused was arraigned and pleaded not guilty on an indictment. The later amendments to count 2 and the removal of count 1 for the purposes of the first jury did not nullify, quash, terminate, or bring to an end the indictment or the criminal proceedings. Because the proceedings commenced before 14 January 2011, the former s 132 applied; as the Crown did not consent to trial by judge alone, the accused had to be tried by a judge and jury. The indictment could be amended to restore count 1 and count 2 could be severed without unfair prejudice to the accused.

Jurisdiction
Australia
Judgment Date
10 February 2011
Procedural Posture
Criminal Procedural Ruling / Defence Application for Trial by Judge Alone and Crown Application to Amend Indictment Before Retrial
Outcome
Application for judge alone trial refused; Crown application to amend indictment allowed.
Legal Topics
['trial by Judge Alone' 'trial by Jury' 'commencement of Criminal Proceedings' 'amendment of Indictment' 'duplicity' 'severance of Counts' 'crimes Act 1900 S 45']
['criminal Law' 'criminal Procedure'] ['trial by Judge Alone' 'trial by Jury' 'commencement of Criminal Proceedings' 'amendment of Indictment' 'duplicity' 'severance of Counts' 'crimes Act 1900 S 45']

Case Brief

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Procedural Posture

Criminal Procedural Ruling / Defence Application for Trial by Judge Alone and Crown Application to Amend Indictment Before Retrial

Legal Issues

  1. 1 ['Whether the current version of s 132 of the Criminal Procedure Act 1986 applied to permit the court to order trial by judge alone despite the Crown withholding consent.' 'Whether the criminal proceedings commenced before 14 January 2011 for the purpose of the transitional provision.' 'Whether amendments to the indictment, including removal of count 1 during the first trial and amendment of count 2, terminated the forensic life of the indictment or required a new indictment.' 'Whether the Crown should be permitted to amend the indictment to restore count 1 and sever count 2.']

Ratio Decidendi

The proceedings commenced on 1 November 2010 when the accused was arraigned and pleaded not guilty on an indictment. The later amendments to count 2 and the removal of count 1 for the purposes of the first jury did not nullify, quash, terminate, or bring to an end the indictment or the criminal proceedings. Because the proceedings commenced before 14 January 2011, the former s 132 applied; as the Crown did not consent to trial by judge alone, the accused had to be tried by a judge and jury. The indictment could be amended to restore count 1 and count 2 could be severed without unfair prejudice to the accused.

Court Disposition

Application for judge alone trial refused; Crown application to amend indictment allowed.

Orders

  • ['The indictment is amended by restoring count 1 in its original form.' 'Count 2 is severed and ordered to be tried separately.' 'The mode of trial will be by judge and a jury of twelve.']