R v Niguidula (No 8) [2023] NSWSC 593

R v Niguidula (No 8) [2023] NSWSC 593

Leave was refused because the matters advanced did not outweigh the strong consideration favouring trial by jury where the partial defence of substantial impairment required a moral judgment applying community standards. The publicity from the Crown opening created minimal risk of prejudice, the risk of unfitness had not increased, the compartmentalisation concern was substantially weaker after the accused accepted responsibility for an act causing death, and the only factor that had materially advanced since the earlier refusal was efficiency and delay, which was insufficient.

Jurisdiction
Australia
Judgment Date
02 June 2023
Procedural Posture
Criminal Prosecution for Murder; Application for Trial by Judge Alone / Application for Leave Under S 132 a of the Criminal Procedure Act 1986 (nsw) Made Within 28 Days of the Trial Date After Discharge of the First Jury
Outcome
Leave pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) was refused.
Legal Topics
['trial by Judge Alone' 'leave Under S 132 A' 'murder' 'manslaughter' 'substantial Impairment' 'jury Trial' 'pre Trial Publicity' 'delay and Efficiency']
['criminal Law' 'criminal Procedure'] ['trial by Judge Alone' 'leave Under S 132 A' 'murder' 'manslaughter' 'substantial Impairment' 'jury Trial' 'pre Trial Publicity' 'delay and Efficiency']

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Procedural Posture

Criminal Prosecution for Murder; Application for Trial by Judge Alone / Application for Leave Under S 132 a of the Criminal Procedure Act 1986 (nsw) Made Within 28 Days of the Trial Date After Discharge of the First Jury

Legal Issues

  1. 1 ['Whether leave should be granted under s 132A of the Criminal Procedure Act 1986 (NSW) for the accused to make a late application for trial by judge alone.' 'Whether the interests of justice favoured a trial by judge alone in light of delay, efficiency, publicity following the Crown opening to the discharged jury, risk of unfitness, and the defence of substantial impairment.' 'Whether the renewed application raised concerns about the appearance of judge shopping.' 'Whether the moral judgment involved in determining the partial defence of substantial impairment favoured trial by jury.']

Ratio Decidendi

Leave was refused because the matters advanced did not outweigh the strong consideration favouring trial by jury where the partial defence of substantial impairment required a moral judgment applying community standards. The publicity from the Crown opening created minimal risk of prejudice, the risk of unfitness had not increased, the compartmentalisation concern was substantially weaker after the accused accepted responsibility for an act causing death, and the only factor that had materially advanced since the earlier refusal was efficiency and delay, which was insufficient.

Court Disposition

Leave pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) was refused.

Orders

  • ['Leave pursuant to s 132A of the Criminal Procedure Act 1986 (NSW) is refused.']