R v Homann [2018] NSWSC 198

Procedural Posture

Criminal Proceedings for Murder / Pre Trial Application for Trial by Judge Alone

Legal Issues

1. 1 ['Whether leave should be granted for an application for trial by judge alone brought fewer than 28 days before the trial date.' 'Whether it was in the interests of justice under s 132(4) of the Criminal Procedure Act 1986 (NSW) for the accused to be tried by a judge alone where the prosecutor did not agree.' 'Whether the issues raised by self-defence, mental illness and substantial impairment were more appropriately determined by a judge alone because of complexity, the obligation to give reasons, potentially distressing evidence and evidence of unlawful conduct by the accused.' 'Whether factual issues requiring application of objective community standards pointed against a judge-alone trial under s 132(5) of the Criminal Procedure Act 1986 (NSW).']

Ratio Decidendi

Although complexity of the legal and psychiatric issues, the benefit of published reasons, and the accused's preference provided some support for a judge-alone trial, those factors were outweighed by strong considerations favouring a jury trial. Self-defence and substantial impairment raised factual issues requiring application of objective community standards within s 132(5), the emotional and prejudicial aspects of the evidence could be managed by warnings and directions, and assessment of the accused's credit was suited to determination by a jury. The interests of justice therefore favoured trial by jury.

Court Disposition

Accused's application for an order for trial by judge alone refused.

Orders

• ['Leave under s 132A of the Criminal Procedure Act 1986 (NSW) to bring the application fewer than 28 days before trial was granted.' 'The application for an order for trial by judge alone was refused.']