When is a Person Eligible for a Judge-Alone Trial in NSW?

In 1993, Douglas Johnson was just 18-years old when he stabbed 25-year old fellow soldier Peter Miller in the neck with such force that the tip of the blade protruded the base of his victim’s nose.

Mr Miller was admitted to hospital but eventually self-discharged and returned to his father’s home.

But the savage attack did little to quench Johnson’s thirst for violence, as he lured and stabbed Miller him several times more – striking the heart and killing him.

Johnson was convicted of murder and sentenced to 22 years in prison with a non-parole person of 15 years, which was later increased to 17 years when he stabbed a relative with a shiv in a prison cell.

Johnson was eventually released from prison in 2015, but he was apparently not rehabilitated.

Another murder

In July of 2017, 47-year old Johnson entered a shoe store in Campsie and confronted 45-year old David Morrison, a man with whom he had an argument at a methadone clinic days earlier.

CCTV footage shows Johnson stride towards and push Morrison, before a physical altercation ensues during which Johnson produces a knife and stabbed his victim to death.

Johnson elected for a judge-alone trial, during which he raised self-defence – claiming he feared Morrison and a friend were going to “jump” Johnson and his girlfriend and “were trying to ambush me”.

But on Friday, 22 February 2019 Justice Stephen Campbell of the NSW Supreme Court rejected that argument, finding instead that Johnson was “bent of a confrontation” when he entered the store.

His Honour found the defendant guilty of murder and adjourned the case for a sentencing hearing in May of this year.

The offence of murder

Murder is an offence under section 18 of the Crimes Act 1900 (NSW) which carries a maximum penalty of life imprisonment.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. The defendant voluntarily committed an act or made an omission,
2. That act or omission caused the death of another person, and
3. The defendant had the intention to kill, cause grievous bodily harm, your conduct exhibited a reckless indifference to human life, occurred during an attempt to commit, or during or after the commission of an offence punishable by at least 25 years in prison.

The offence also carries ‘standard non-parole periods’ (SNPPs), which vary depending on who was killed.

An SNPP is a reference point for the sentencing judge when deciding the minimum time a person must spend behind bars before being eligible to apply for release from prison on parole, to serve the remainder of their sentence in the community.

The SNPP for murder is 20 years in prison, but increases to 25 years where the person killed was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work, or a person under the age of 18 years.

The most common legal defence to murder is self-defence.

Self-defence

The defence of self-defence is contained in section 418 of the Crimes Act 1900 (NSW).

The section states that a person is not criminally responsible for his or her conduct if the person believes the conduct was carried out in self-defence, and the conduct is a reasonable response in the circumstances as he or she perceives the.

Self-defence is a complete defence, which means the person is entitled to be found not guilty for their actions.

The defence is available where the conduct is necessary to:

(a) defend himself or herself or another person, or

(b) prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) protect property from unlawful taking, destruction, damage or interference, or

(d) prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.

This extends to the situation where a person steps in to defend another person against an assault.

However, section 420 of the Act makes clear that self-defence is not available where a person uses force that involves the intentional or reckless infliction of death only to protect property or prevent a trespass.

And section 421 provides that where a person uses excessive force to defend themselves or another, including to prevent the unlawful deprivation of liberty, and that force results in their target’s death, the person will be criminally responsible for manslaughter rather than murder provided that he or she believed the conduct was necessary in the circumstances.

Significantly, section 419 stipulates that if evidence of self-defence is raised, the prosecution must then prove beyond a reasonable doubt that the actions did not amount to self-defence. If the prosecution is unable to do this, the defendant must be acquitted.

Judge-alone trials in New South Wales

Amendments in 1990 to the Criminal Procedure Act 1986 (NSW)(the Act) allowed for trials by judge alone in respect of state offences where the prosecution consented.

The Act was amended in 2011 to enable the defendant to apply for such a trial in the absence of consent.

The relevant substantive rules are now embodied in sections 132, 132A and 133 of the Act.

Section 132 provides that a defendant or prosecutor may apply for a District or Supreme Court trial to be tried by a judge alone – which is referred to as a ‘trial by judge order’.

The section says that upon such an application being made, the court:

• Must make such the order if both parties agree,
• Cannot make the order if the defendant disagrees,
• May make the order if the prosecution disagrees if it is in the interests of justice to do so,
• May refuse to make the order if the trial will involve a factual that requires the application of objective community standards, such as reasonableness, negligence, indecency, obscenity or dangerousness,
• Must refuse to make the order unless satisfied the defendant has sought and received advice about such orders from an Australian lawyer, and
• May make the order despite any of the above if there is a substantial risk a jury trial may lead to an offence of interfering with jurors, witnesses or judges under sections 320 to 326 of the Crimes Act 1900 (NSW),and that risk cannot be mitigated.

Section 132A requires that an application under section 132 for criminal proceedings must be made at least 28 days before the trial date, except with the leave (permission) of the court.

It further provides that an application must not be made in a joint trial – meaning a trial with more than one defendant – unless all defendants apply and each application is made in respect of all offences being tried.

Section 133 empowers a judge sitting alone in criminal proceedings to make findings of fact, which is normally the responsibility of the jury. It requires the judge to include the applied principles of law and findings of fact in any judgement, and to take into account any warnings that would normally be given to the jury.

‘Objective Community Standards’

The provision in section 132 that the court may refuse a judge alone application by a defendant if the case involves the application of ‘objective community standards’ has been the subject of judicial interpretation.

Some situations are relatively straightforward, such as offences which contain essential elements embodying reasonableness, indecency or offensiveness. Others are less clear-cut, such as those involving questions of credibility and intent.

In the 2008 High Court case of AK v State of Western Australia Heydon J provided the following guidance:

“Examples of factual issues requiring the application of “objective community standards” include whether behaviour was “threatening, abusive or insulting”; whether conduct was “dishonest”… whether an assault is “indecent”; and whether an accused person had a particular intention.”

The 2008 NSWCC case of R v Belghar involved a family altercation at a shopping centre whereby one family member was charged with attempted murder and attempting to inflict grievous bodily harm with intent. Chief Justice McLelland found in that case that the facts did not require the application of community standards.

Making an application

Application under section 132(1) are made by completing and filing NSW Supreme Court Form 74AJ

The application is an interlocutory decision, the refusal of which may be appealed under section 5F of the Criminal Appeal Act 1912.