Alameddine v R [2022] NSWCCA 219

Alameddine v R [2022] NSWCCA 219

Leave under s 132A was required despite the Crown's consent, but the trial judge's discretion miscarried. The judge failed to take into account that Hamdi Alameddine could not apply earlier because Rafat Alameddine had not consented, acted on a wrong principle by treating the appearance of judge shopping as persisting after accepting that no judge shopping occurred, and failed to take into account that the substantive judge-alone applications would inevitably succeed because the Crown consented. The Court therefore granted leave to appeal, allowed the appeal, granted leave under s 132A, and ordered judge-alone trials under s 132(2).

Jurisdiction
Australia
Judgment Date
07 October 2022
Procedural Posture
Criminal Appeal From Interlocutory Order / Applications for Leave to Appeal Under S 5 F(3)(a) of the Criminal Appeal Act 1912 (nsw) Against Refusal of Leave Under S 132 A(1) of the Criminal Procedure Act 1986 (nsw) to Apply for a Judge Alone Trial
Outcome
Leave to appeal granted; appeal allowed; District Court refusal of leave set aside; leave under s 132A granted; judge-alone trials ordered; proceedings remitted to the District Court to the extent necessary.
Legal Topics
['trial by Judge Alone' 'interlocutory Criminal Appeal' 'leave to Apply Less Than 28 Days Before Trial' 'judge Shopping' 'joint Trial of Co Accused']
['criminal Law' 'criminal Procedure' 'practice and Procedure'] ['trial by Judge Alone' 'interlocutory Criminal Appeal' 'leave to Apply Less Than 28 Days Before Trial' 'judge Shopping' 'joint Trial of Co Accused']

Case Brief

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Procedural Posture

Criminal Appeal From Interlocutory Order / Applications for Leave to Appeal Under S 5 F(3)(a) of the Criminal Appeal Act 1912 (nsw) Against Refusal of Leave Under S 132 A(1) of the Criminal Procedure Act 1986 (nsw) to Apply for a Judge Alone Trial

Legal Issues

  1. 1 ['Whether leave under s 132A of the Criminal Procedure Act 1986 (NSW) was required to apply for a judge-alone trial less than 28 days before trial where the Crown consented to the order.' 'Whether the trial judge erred by failing to have regard to evidence that Hamdi Alameddine could not apply earlier because his co-accused had not consented to a judge-alone trial.' "Whether the trial judge erred by failing to consider Rafat Alameddine's explanation for delay and by treating the appearance of judge shopping as remaining despite accepting there was no judge shopping." 'Whether the trial judge failed to consider the strength of the application for a judge-alone order, including that the Crown would consent if leave were granted.']

Ratio Decidendi

Leave under s 132A was required despite the Crown's consent, but the trial judge's discretion miscarried. The judge failed to take into account that Hamdi Alameddine could not apply earlier because Rafat Alameddine had not consented, acted on a wrong principle by treating the appearance of judge shopping as persisting after accepting that no judge shopping occurred, and failed to take into account that the substantive judge-alone applications would inevitably succeed because the Crown consented. The Court therefore granted leave to appeal, allowed the appeal, granted leave under s 132A, and ordered judge-alone trials under s 132(2).

Court Disposition

Leave to appeal granted; appeal allowed; District Court refusal of leave set aside; leave under s 132A granted; judge-alone trials ordered; proceedings remitted to the District Court to the extent necessary.

Orders

  • ['Grant leave to appeal to both applicants under s 5F(3)(a) of the Criminal Appeal Act 1912.' 'Appeal allowed.' 'Set aside the order made by his Honour Judge Hoy SC on 15 September 2022 refusing each applicant leave under s 132A(1) of the Criminal Procedure Act 1986 (NSW) to apply for an order they be tried by a...