New South Wales Consolidated Acts

CRIMINAL PROCEDURE ACT 1986 - SECT 164A

164A Judge unable to continue in trial by jury

(1) If the presiding judge of criminal proceedings being tried by a jury in the District Court or the Supreme Court dies, becomes ill or is otherwise unable to continue the proceedings (the
"former presiding judge" ), the senior judicial officer of the relevant court may, after hearing submissions from the parties to the proceedings--

(a) nominate another judge of the court (the
"new presiding judge" ) to take over the conduct of the proceedings, or

(b) discharge the jury and order a new trial.

(2) Before making a decision to nominate a new presiding judge, the senior judicial officer must consider whether it would be in the interests of justice to do so, including (but not limited to) the following matters--

(a) whether the new presiding judge will be available to take over the conduct of the proceedings within a reasonable time,

(b) whether a transcript, audio or video recording of all of the proceedings is available,

(c) the time that will be required for the new presiding judge to familiarise himself or herself with any available transcript or audio or video recording of the proceedings, and with any evidence that has been given in the proceedings,

(d) the submissions from the parties,

(e) the progress of the trial, including whether any key witnesses for the prosecution or the defence have given evidence,

(f) the history, estimated length and complexity of the trial,

(g) the availability of witnesses,

(h) whether the decision to nominate a new presiding judge would be unfair to any of the parties to the trial.

(3) If the senior judicial officer of the relevant court is unable to make a decision, the senior judicial officer may nominate another judge of the relevant court to make a decision in accordance with this section.

(3A) To avoid doubt, this section does not apply--

(a) to a pre-recorded evidence hearing, or

(b) if the former presiding judge presides only over a pre-recorded evidence hearing and does not preside over the proceedings after that hearing.

Note--: Section 294I(7) further provides for different judicial officers presiding over a pre-recorded evidence hearing and the remainder of the proceedings.

(4) If a new presiding judge takes over the conduct of the proceedings, an order or ruling made by the former presiding judge is binding on the new presiding judge unless, in the opinion of the new presiding judge, it would not be in the interests of justice for that order or ruling to be binding.

Note--: Section 5F (Appeal against interlocutory judgment or order) of the Criminal Appeal Act 1912 does not extend to a decision made under this section.