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“This is the first application to be decided where the parties have opposing views regarding the appropriateness of an order permitting a trial by judge alone.”: http://classic.austlii.edu.au//au/cases/vic/VCC//2020/1111.html.
First contested application for a trial by jury granted. @mchlftzgrld1977 for applicant.
First contested application for a trial by jury granted. @mchlftzgrld1977 for applicant.
“The difference in the delay if one compares the two modes of trial is somewhat less but still significant, particularly when one has regard to the very substantial delay that has already occurred since the applicant was charged by police in December 2013.”
“such applications involve accused persons, acting on legal advice, choosing to forego their right to a later jury trial and seek an earlier trial by judge alone. Some weight needs to be accorded to the subjective preference of an accused to be tried expeditiously“
“The relevance of the credibility of witnesses does not seem to have arisen for consideration in the three recent Victorian decisions, although it has been considered in some other Australian jurisdictions, particularly in NSW. The law in this area is far from settled”
Ooh. D argues: “There is a real chance of a mistrial and unfair prejudice to the applicant if the trial proceeds with a jury due to the complexity of the required tendency and context directions, the conduct of P at the previous re-trial and the recent death of C’s father.”
Ooh. P argues: “This case is unusual in that there have already been two previous jury trials which have involved significant community participation. In such circumstances, it is in the interests of justice for a consistent approach to be taken in relation to the re-trial.”
Gamble: “There is a very distinct difference, between an accused having to wait at least 7 months and possibly longer for their trial to be first tried by a jury and having to wait the same period for their third jury trial to commence more than seven years after being charged“.
“That the trial will be determined largely on an assessment of the credibility of the P witness is not a matter that militates either in favour or against. I do not proceed on the basis that there is some special advantage enjoyed by a jury in making assessments of credibility”
Gamble rejected both the D argument about the complexity of a jury trial and the P argument about the desirability of a jury retrial of a jury trial.
“The complainant in this case has been informed of the relative timeframes in which the two modes of trial could proceed. He has indicated to the prosecution that he has no preference for either mode notwithstanding that difference. His position is a neutral one.”
“it would be a regrettable situation if this re-trial was delayed until next year to allow for a jury trial and then, in the intervening period, the applicant’s health deteriorated to the extent where the re-trial was further delayed or even worse, could not proceed at all.”
(The prosecution is a historical child sexual abuse case alleging that D abused her stepson C 35 years ago. D is now 60, C is now 48.)
Surely P will appeal this to VSCA? First contested app, a number of tricky issues, case has previously been to VSCA, D on bail, etc.
