R v Cunningham (No 2) [2017] NSWSC 1233

R v Cunningham (No 2) [2017] NSWSC 1233

Because both the accused and the Crown had consented to trial by judge alone by 2 June 2017, no further deliberative process was required by the Court before making an order under s 132. In that context, Johnson J's statement that the matter would be a judge-alone trial was sufficient for an order for trial by judge alone to be inferred. Any failure to enter such an order did not invalidate it or the trial, so the trial was properly constituted and should continue.

Jurisdiction
Australia
Judgment Date
05 September 2017
Procedural Posture
Common Law Criminal / Ruling During Judge Alone Murder Trial on Whether the Trial by Judge Order Had Been Made; Judgment Had Been Reserved Before Verdict
Outcome
Trial continues
Legal Topics
['trial by Judge Alone' 'implied Order' 'entry of Orders' 'validity of Trial']
['criminal Law' 'criminal Procedure'] ['trial by Judge Alone' 'implied Order' 'entry of Orders' 'validity of Trial']

Case Brief

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Procedural Posture

Common Law Criminal / Ruling During Judge Alone Murder Trial on Whether the Trial by Judge Order Had Been Made; Judgment Had Been Reserved Before Verdict

Legal Issues

  1. 1 ['Whether an order for trial by judge alone had been made on 2 June 2017.' 'Whether any failure to enter a trial by judge order on the court record meant the order was a nullity or affected the validity of the trial.' "Whether the accused's trial before a judge without a jury was properly constituted."]

Ratio Decidendi

Because both the accused and the Crown had consented to trial by judge alone by 2 June 2017, no further deliberative process was required by the Court before making an order under s 132. In that context, Johnson J's statement that the matter would be a judge-alone trial was sufficient for an order for trial by judge alone to be inferred. Any failure to enter such an order did not invalidate it or the trial, so the trial was properly constituted and should continue.

Court Disposition

Trial continues

Orders

  • ['The trial shall continue.']