Arthurs v The State of Western Australia - [2007] WASC 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ARTHURS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 182

CORAM: MARTIN CJ

HEARD: 31 JULY 2007

DELIVERED : 31 JULY 2007

FILE NO/S: INS 166 of 2006

BETWEEN: DANTE WYNDHAM ARTHURS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Accused's application for trial by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) - Charges of wilful murder, two counts of sexual penetration and unlawful detention - Substantial pre-trial publicity - Factors for consideration

Legislation:

Criminal Code (WA), s 651A
Criminal Procedure Act 2004 (WA), s 118
Criminal Procedure Rules 2005 (WA), r 28

Result:

Application for trial by judge alone granted

Category: A

Representation:

Counsel:

Applicant: Mr R W Keeley
Respondent: Mr T B L Scutt

Solicitors:

Applicant: Legal Aid WA
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Hinch v Attorney‑General (Vict) (1987) 164 CLR 15
Kingswell v The Queen (1985) 159 CLR 264
Martinez v The State of Western Australia [2007] WASCA 143
R v Glennon (1992) 173 CLR 592
The State of Western Australia v Iley [2006] WASC 107
The State of Western Australia v Tarau [2005] WASC 290
Western Australia v Martinez (2006) 159 A Crim R 380

MARTIN CJ: Dante Wyndham Arthurs has been charged with wilfully murdering Sofia Rodriguez‑Urrutia Rey‑Baltar Shu at Canning Vale on 26 June 2006. Mr Arthurs has also been charged with two counts of sexual penetration said to have been committed against the same victim at the same time and place. He has also been charged with the unlawful detention of Sofia Rodriguez‑Urrutia Shu at the same time and place. At the time of the alleged offences Mr Arthurs was 21 years of age and Ms Rodriguez‑Urrutia Shu was 8 years of age.
The trial of these charges has been set down for a period of approximately three weeks in October 2007, although I am told by defence counsel that there is some prospect that the trial may be shorter than that. The identity of the Judge allocated to conduct the trial is not known to the parties. Mr Arthurs applies for an order that he be tried by Judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA). His application is supported by an affidavit in accordance with rule 28 of the Criminal Procedure Rules 2005, and I will then refer to s 118 of the Criminal Procedure Act, which provides:
"118. Trial by judge alone without a jury may be ordered
(1)If an accused is committed on a charge to a superior court or indicted in a superior court on a charge, the prosecutor or the accused may apply to the court for an order that the trial of the charge be by a judge alone without a jury.
(2)Any such application must be made before the identity of the trial judge is known to the parties.
(3)On such an application, the court may inform itself in any way it thinks fit.
(4)On such an application the court may make the order if it considers it is in the interests of justice to do so but, on an application by the prosecutor, must not do so unless the accused consents.
(5)Without limiting subsection (4), the court may make the order if it considers -
(a)that the trial, due to its complexity or length or both, is likely to be unreasonably burdensome to a jury; or
(b)that it is likely that acts that may constitute an offence under The Criminal Code section 123 would be committed in respect of a member of a jury.
(6)Without limiting subsection (4), the court may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
(7)If an accused is charged with 2 or more charges that are to be tried together, the court must not make such an order in respect of one of the charges unless the court also makes such an order in respect of each other charge.
(8)If 2 or more accused are to be tried together, the court must not make such an order in respect of one of the accused unless the court also makes such an order in respect of each other accused.
(9)If such an order is made, the court cannot cancel the order after the identity of the trial judge is known to the parties."
Section 118(2) requires that any application of this kind must be made before the identity of the trial Judge is known to the parties. Because the identity of the trial Judge is not known to the parties, this application is brought within the time specified by that subsection. I will return in due course to the origins of s 118 and my view as to its proper construction, but I will deal firstly with the evidence in support of the application.
The solicitor acting for Mr Arthurs has sworn an affidavit in support of the application. In that affidavit the solicitor asserts the pre‑trial publicity and consequent notoriety which this case has attracted is likely to create a degree of prejudice in the minds of the jury which a direction from the Judge is unlikely to correct. He further asserts that the allegation of sexual assault, the nature of the injuries suffered by Ms Rodriguez‑Urrutia Shu and her age is likely to engender feelings of revulsion and antipathy towards Mr Arthurs which will not be able to be cured by a judicial warning.
The solicitor annexes to his affidavit some of the pre‑trial publicity which has been generated by this case. He also deposes that a search of Mr Arthurs' name on one common Internet search engine reveals 737 possible Internet sites upon which information is to be found about Mr Arthurs. Annexed to the solicitor's affidavit are extracts from many of those sites. I have read all the media articles attached to the solicitor's affidavit and I have reviewed the extracts from the web sites which have been printed and annexed to his affidavit. The material is voluminous. What follows is a necessarily brief reference to some of the more pertinent aspects of that material.
As I have mentioned, the offence is alleged to have occurred on 26 June 2006. Two days later an article published on the front page of The West Australian, this State's only daily newspaper, reported that Mr Arthurs had been arrested and charged with murder and sexual penetration. The article was published under the major headline, "My boy's not violent: alleged killer's mum." The article carried a number of lesser headlines, including - and I quote - "Pray for us and our little Sofia, plead victim's shattered family" and "Police Commissioner says case is the most shocking he has seen". The article goes on to report a conversation between a reporter employed by the newspaper and the mother of Mr Arthurs about one year earlier. It did so in the following terms:
"The mother of the man accused of murdering an eight‑year‑old schoolgirl inside a Perth shopping centre toilet told The West Australian last year that 'He hasn't got a violent bone in his body'.
Speaking to a reporter about an unrelated matter, Suzanne Arthurs said her baby‑faced 21‑year‑old son, Dante - now at the centre of one of the state's most chilling cases - did not have a criminal record.
For legal reasons, The West Australian cannot reveal why Mrs Arthurs and her son spoke to the newspaper this time last year."
I digress to observe that it must have been apparent to any reader of that article (and no doubt there were many, it having been published on the front page of the daily newspaper) that the reason the newspaper was talking to Mr Arthurs' mother a year earlier must have had something to do with an allegation of violent behaviour on his part. Otherwise, there would be no reason for her to deny his violent propensities.
Readers were also likely to have discounted her denial of his violent propensity by reason of their relationship, she being his mother. Astute readers may also have concluded that the legal reasons the newspaper could not reveal the context of the conversation in the previous year could either be due to the fact that such revelation would prejudice Mr Arthurs' trial, and therefore be a contempt of court, or perhaps contravene the legal prohibition upon the identification of children charged with offences in the Children's Court. Either view of the reference to "legal reasons" for not revealing the reason for earlier contact is likely to have raised serious misgivings about Mr Arthurs' past. The article goes on to report:
"At 5 am yesterday major crime squad detectives swooped on the family's Canning Vale home, just five minutes from the Livingston Marketplace shopping centre where pretty Banjup schoolgirl, Sofia Rodriguez‑Urrutia Shu was found naked and strangled in a disabled toilet near Big W.
About four hours later Mr Arthurs was charged at Cannington police station with deprivation of liberty, sexual penetration and murder.
A car and a computer hard drive were removed from the house.
His alleged crime has shaken the confidence of every parent in the State and left its mark on even the most experienced homicide investigators in the WA Police.
'It is an horrific offence against a young child, an innocent young child who made the fatal mistake of being in the wrong place at the wrong time,' murder inquiry boss Detective Senior Sergeant John Wibberley said.
Sofia's brutal fate was sealed soon after 4 pm on Monday when she went to the toilet during an after-school trip to the shopping centre with her 14‑year‑old brother, 11‑year‑old sister and uncle.
Police will allege that within seconds of her walking into a disabled toilet separate to the male and female rooms, Mr Arthurs grabbed Sofia, sexually abused her and strangled her."
The article continued:
"With police cars coming and going from the Arthurs' family home in Jeremiah Way much of yesterday, residents were stunned to hear of their neighbour's alleged crime against such a young, defenceless child.
One man said he read about Sofia's death over breakfast and when he saw the police and media in his street, he felt cold.
'He (Mr Arthurs) said hello every time we saw him but that was it,' the neighbour said.
For much of his childhood Mr Arthurs, who works part-time at a shop, lived in England but he returned to Perth with his family in 2001 to complete high school …
'We had a perfectly normal life,' Mrs Arthurs told The West Australian last year. 'We had eight years in England, living in the south of England'."
Later on in the article it is reported:
"What would motivate him to kill in the way he is alleged to have taken Sofia's life has baffled Police Commissioner Karl O'Callaghan."
Then a quote is attributed to the Commissioner of police in these terms:
"'It is one of the most shocking cases that I have ever heard of and I know much more detail and it's quite horrific,' he said."
The article also reports the appearance of Mr Arthurs in the Perth Magistrates Court. He is described as having stood silently with his head bowed. Pages 8 and 9 of the same edition of that newspaper were entirely devoted to the same story. Those pages included reports of the effect which the discovery of Ms Rodriguez‑Urrutia Shu's body has had upon the community. Those pages include statements such as these:
"Parents wept openly and young children walked solemnly from classrooms yesterday afternoon, after news their schoolmate had been murdered."
Other portions of those articles were directed to the effects which criminal conduct against children had had upon precautions taken by parents. In that context it was reported:
"So this is where we have come - to a place where parents must balance their children's need to learn with the fact that just one unlucky moment is all it takes to snuff out a life? where a rare, evil act changes a community for ever?"
It is a fair inference from the materials annexed to the solicitor's affidavit that during the course of 28 June 2006 rumours spread quickly and widely throughout Perth and presumably other parts of the state and possibly the country to the effect that Mr Arthurs had been involved in the murder of a young boy, James Bulger, in Liverpool in the United Kingdom 13 years before.
James Bulger's murder had attracted world-wide attention in part because he was murdered by two boys who were themselves very young at the time. The rumour to the effect that Mr Arthurs was one of the children who had committed this murder was apparently spread using the Internet and a comparison of the photograph of Mr Arthurs with a photograph of one of the boys convicted of murdering James Bulger.
The evidence does not establish the extent of the Internet publication of the rumour but it is a fair inference from the sensational nature of the rumour, coupled with the ease and speed with which matters can be published and republished on the Internet, that it is likely to have spread very widely and very quickly. It is also to be inferred that these rumours had circulated previously.
An article in the edition of The West Australian newspaper of 29 June 2006 was also published on page 1 under the heading "I didn't kill UK toddler." In this edition the newspaper revealed that the reason it had spoken to Mr Arthurs and his mother a year earlier was because of this same rumour. However, it is of course by no means certain that those who had read the previous day's edition of the newspaper would also have read this article. The article on 29 June 2006 reports and I quote:
"After his arrest on Tuesday morning a frenzy of emails, letters and phone calls swept across Australia reigniting the rumours about Mr Arthurs' background."
The article goes on to report that in 2004 police investigated the claim about Mr Arthurs' past and further reports that on the previous evening Deputy Police Commissioner Chris Dawson had reacted strongly to the rumour by quashing it. The article also reports a denial of the truth of the rumour by the Federal government. Page 5 of that edition of the newspaper was also devoted to the story and dealt with the effect which the murder of Ms Rodriguez‑Urrutia Rey‑Baltar Shu had had upon her friends and schoolmates.
Page 1 of the next day's edition of The West Australian, that is on 30 June 2006, reported that a makeshift shrine to Ms Rodriguez‑Urrutia Rey‑Baltar Shu had been constructed, which had been visited by children and parents sobbing openly. An article on page 9 of that edition dealt again with the rumour to the effect that Mr Arthurs was one of the boys who had murdered James Bulger in Liverpool in 1993. The article emphatically denied any truth in the rumour.
The next day the same newspaper reported that Mr Arthurs had worked part-time at the Canning Vale shopping centre where Ms Rodriguez‑Urrutia Rey‑Baltar Shu's body was found. Two days later the same newspaper reported that the state government would consider the introduction of, and I quote:
"[A] Sofia's law - requiring authorities to alert residents if a convicted paedophile moved into their neighbourhood - as it emerged that more than a quarter of the state's released child sex offenders live in south-eastern Perth."
The same article went on to report that Mr Arthurs was not on the child sex offender register. Subsequent editions of the newspaper reported the same story. That newspaper, The West Australian, has regularly reported Mr Arthurs' appearances before the courts, including a report that one appearance was deferred in order that Mr Arthurs' lawyer could consider psychiatric issues.
More recently on 2 June 2007 on page 2 of The West Australian newspaper, there was an extensive report of the steps that had been taken to construct a chapel to honour Sofia Rodriguez‑Urrutia Rey‑Baltar Shu. The article reports the effect which her death had had upon her family and the steps which were being taken by the community to construct the chapel.
Extracts from The Australian newspaper which also circulates in Perth and throughout the state are also annexed to the solicitor's affidavit. They show that that newspaper also widely reported the alleged offence and the arrest of Mr Arthurs at the time. However, it seems that it did not report the alleged rumour relating to Mr Arthurs' involvement in the murder of James Bulger.
Annexures to the solicitor's affidavit also showed that the story was widely reported in The Sunday Times newspaper which circulates throughout the metropolitan area and the state.
As I have mentioned, the solicitor's affidavit also identifies the fact that a Google search of Mr Arthurs' name reveals more than 737 web sites that refer to him. Those web sites deal with a wide variety of topics, including the untrue rumour to the effect that he was responsible for the murder of James Bulger. Some of those web sites persist with that false assertion. Others assert, for example, that the rumour should be tested by the taking of DNA from Mr Arthurs.
A significant number of the Internet web sites contain material which proceeds on the assumption that Mr Arthurs is guilty of the offences which have been alleged against him and suggest consequences which should flow to him. Other sites make allegations about Mr Arthurs' past. Another site refers to Mr Arthurs in the context of an entirely unjustified reference to Martin Bryant who was notoriously convicted of multiple murders at Port Arthur in Tasmania.
Some of these web sites also refer to another assertion concerning Mr Arthurs which is potentially prejudicial and to which I will not give further currency or spread by repetition in this judgment. The State properly concedes that if that material was accessed by a juror during the course of the trial, despite the jury having been directed not to resort to the Internet, it could cause prejudice to the fairness of the trial.
Counsel for Mr Arthurs submits, and I accept, that that assertion which I will describe as "the other matter" would, if mentioned to the jury during the course of the trial, cause the trial to be aborted. The other matter is referred to on at least one web site which both parties accept is very commonly tracked by search engines and very often referred to by the public.
Section 118(3) empowers a court considering an application under that section to inform itself in any way it thinks fit. In the exercise of that power, I have reviewed the file and the evidence in matter CIV 1679 of 2006 pending in this Court. Those are proceedings in which the Director of Public Prosecutions alleges that Network 10 Perth Pty Ltd ("Network 10") committed a contempt of court by reason of a prominent segment of the evening news report broadcast by that television channel throughout the metropolitan area of Perth on 27 June 2006, the day Mr Arthurs was arrested.
Because those proceedings have not been finally determined and because Network 10 has not been represented before me and because Mr Arthurs' trial is pending, it would not be appropriate for me to publicly repeat the assertions made in that broadcast which I have viewed, nor to attempt to characterise its tenor or likely effect, although it is pertinent that the broadcast refers to the assertion which I have called "the other matter".
It is I think sufficient for present purposes to express the view that the broadcast gave rise to an arguable case of contempt of court because of the prospect that it might prejudice Mr Arthurs' trial by jury. Of course even if a contempt has been committed as to which I make no determination, it would not mean that a fair trial by jury was impossible, as the decisions of the High Court in the cases of Hinch v Attorney‑General (Vict) (1987) 164 CLR 15 and R v Glennon (1992) 173 CLR 592 show; but an arguable case of contempt does at least raise the prospect of prejudice in the event of trial by jury which is of course why the law of contempt exists.

It is clear from this review of the materials annexed to the solicitor's affidavit that his description of the publicity relating to this case as having been intensive and continuous is amply justified. There are at least five features of the publicity surround this case which appear to me to distinguish it from what I might describe as the normal range of publicity associated with notable criminal cases.
The first arises from the terms of the article published on the front page of The West Australian newspaper on 28 June 2006, and to which I have already referred quite extensively. That article was exceptionally prominent and had a number of unusual features to which I have referred, including most particularly the reference to the communications between that newspaper and Mr Arthurs and his mother a year earlier.
The second exceptional feature of this material is the sensational and untrue rumour, which seems to have spread widely and quickly, that Mr Arthurs was one of the two boys responsible for the death of James Bulger in Liverpool. Although that rumour was quickly quashed in the printed media, it seems to persist in some form or another in the Internet material to which I have referred.
The third distinguishing aspect of this material is the extensive Internet component which includes the circulation of the rumour to which I have referred and the persisting allegations against Mr Arthurs on the web sites to which I have referred and which apparently remain accessible.
The fourth aspect to which I would refer is the reference on some of those websites, including one which is very commonly referenced, to what I have described as "the other matter" which is potentially prejudicial to Mr Arthurs.
The fifth distinguishing aspect of the pre-trial publicity is the broadcast by Network 10 to which I have referred and which seems to me to have given rise to an arguable case of contempt by reason of possible prejudice to Mr Arthurs' trial.
As I have mentioned, the solicitor's affidavit refers in very general terms to the proposition that the circumstances of the offence are likely to engender feelings of revulsion and antipathy towards Mr Arthurs. I have reviewed the details of the alleged offence in the prosecution brief and of the evidence that might be led at trial. It is neither necessary nor appropriate for me to detail the circumstances which would be revealed by the evidence at this point in the proceedings, except to note that some of the material is likely to have a profoundly disturbing effect, testing the emotional strength of anybody required to review it, whether juror or Judge.
Having set the factual context for the consideration of the application for trial by Judge alone, I turn now to the legal aspects of that application. The trial of indictable offences by a Judge sitting without jury is a relatively recent development in this and other jurisdictions. Such a method of trial first became available in Western Australia with the passage of s 651A of the Criminal Code (WA) ("Code"), which was repealed when s 118 of the Criminal Procedure Act 2004 came into force. Under s 651A of the Code, an accused person could elect to be tried by Judge alone, provided the prosecutor consented, so under that regime the method of trial was essentially under the control of the parties.
In New South Wales the legislation takes a similar form to s 651A of the Code (see the Criminal Procedure Act 1986 (NSW), s 132) whereas in South Australia and the Australian Capital Territory an accused person may elect to be tried by Judge alone (see the Juries Act 1927 (SA), s 7, and the Supreme Court Act 1933 (ACT), s 68B).
A similar approach is taken in Canada where an accused may elect to be tried by Judge alone (see the Criminal Code (Can), s 536, s 554, s 558, s 560 and s 561). However, in some cases the consent of the Attorney‑General is required (see the Criminal Code (Can), s 473) and in other cases the Attorney‑General may intervene to require trial by jury (see the Criminal Code (Can), s 568).
New Zealand is perhaps the jurisdiction with legislation most analogous to s 118 of the Criminal Procedure Act of this State. Section 361A of the Crimes Act 1961 (NZ) provides that ordinarily a trial is by Judge and jury. However, under s 361B an accused person may apply for trial by Judge alone, in which event the Judge must grant the application, unless the interests of justice require a trial by Judge and jury (see s 361B(4) of the Crimes Act (NZ)). However, there is no power to elect trial by Judge alone if the offence carries a maximum sentence of 14 years imprisonment or more (see s 361B(5) of the Crimes Act (NZ)). Thus in New Zealand, the legislature has determined that trial by jury will be retained in the most serious cases. There is no equivalent restriction in the Western Australian legislation.
The explanatory memorandum to the Criminal Procedure Bill which introduced s 118 states that the provision is based on s 651A of the Code. It is, however, clear that there is a fundamental difference between s 118 and the previous law, in that s 118 reposes the decision with respect to the manner of trial in the Court, subject to the consent of the accused person, and requires the decision to be made "in the interests of justice".
The explanatory memorandum also states that s 118 implements some of the recommendations made in ch 30 of the final report of the Law Reform Commission of Western Australia ("Commission") in its review of the criminal and civil justice system, Project 92. It is a matter of record that the Director of Public Prosecutions and I were members of the Commission at the time it published that report. Section 19 of the Interpretation Act 1984 (WA) expressly authorises reference to the report of the Commission as an aid to the construction and interpretation of legislative provisions such as s 118 which are enacted in reliance upon such reports, for the purpose of confirming that the meaning of the provision is the ordinary meaning conveyed by its text, or for clarifying ambiguity or obscurity.
At the commencement of ch 30 of its report, the Commission reviews a number of submissions which it had received which were highly critical of trial by jury. However, it went on to express the view that there were sound principles which justified maintaining jury trials. In that context, it recommended at Recommendation 324:
"Trial by Judge alone should not, in general, be the preferred method of trial for serious criminal offences."
In its context, that recommendation should not be construed as casting light upon the exercise of a judicial discretion to be exercised in the interests of justice in a particular case but, rather, as relating to the basic structures to be provided for the trial of indictable offences. Viewed in context, the Commission should be taken as rejecting in that recommendation the proposition that trial by jury should be curtailed as a matter of course. It should not be construed as the expression of a preference for one mode of trial over another, as later recommendations of the Commission make clear.
In par 30.6 of its report the Commission reported that trials conducted in the absence of a jury have a number of limitations. The first limitation it observed was the lack of community input, which it considered might be significant in relation to offences which included elements defined according to community standards, such as what is reasonable, provocation, self‑defence, fraud or indecency. It seems likely that those observations were the genesis of s 118(6). After reviewing what it considered to be the relative strengths and weaknesses of trial by jury as compared to trial by Judge without jury, the Commission recommended [Recommendation 328]:
"Trial by Judge alone should be available as an alternative to trial by jury in appropriate cases on indictment but not as of right for either the defence or the prosecution."
In par 30.10 of its report, the Commission referred to a number of reasons a defendant might elect trial by Judge alone. It reported that those may include, and I quote:
"[T]he belief that his or her trial might otherwise be prejudiced by previous media publicity or by evidence which the jury might find revolting."
It is pertinent to observe that those factors are precisely the factors which Mr Arthurs asserts justify an order for trial by Judge without jury in this case. It is also pertinent to observe that the Commission expresses its views by reference to the belief of an accused, a subject to which I will return. In the same paragraph the Commission goes on to observe:
"A defendant might elect trial by Judge alone if he or she considers, that because of racial, religious or cultural differences, the risk of a prejudiced jury exists."
I digress to observe that these considerations might often be apt to trials in regional parts of this state in which Aboriginal persons are often tried by juries composed entirely or almost entirely of non‑Aboriginal persons, despite the best efforts of the Sheriff's office to encourage Aboriginal people to participate in jury service. It is also pertinent to observe again that this observation by the Commission is cast in terms of the state of mind of the accused person.
In the same paragraph of its report the Commission refers to the danger of "judge shopping" if applications for trial by Judge alone could be made with knowledge of the identity of the Judge who is to conduct the trial. Against that danger it recommended [Recommendation 329]:
"The application to have a matter heard by judge alone should be dealt with by a judge other than the proposed trial judge once a case is committed to the higher court."
Section 118 contains provisions which prevent Judge shopping. See s 118(2) and s 118(9). However, it does not contain a requirement that the application be dealt with by a Judge other than the proposed trial Judge. Given the identity of the authors of the Commission's report, it will be no surprise to learn that I favour the adoption of that practice wherever possible. It is a practice which has been adopted in this case as I will not be the trial Judge, whatever the outcome of this application. It is, I think, a matter of regret that that practice was not followed in the case of Western Australia v Martinez (2006) 159 A Crim R 380 in which E M Heenan J was placed in the invidious position of having to determine whether or not he would conduct the trial in question without a jury.
The Commission went on to make a number of recommendations relating to the procedures to be adopted in respect of applications for trial by Judge alone, including recommendations relating to the procedures to be adopted where there has been a joinder of charges or a joinder of accused, which recommendations are embodied in s 118(7) and s 118(8). In the context of a consideration of the reasons for which an order might be made for trial by Judge without jury, the Commission observed (at par 30.14):
"The current law allows the prosecution to veto a defendant's application for trial by Judge alone. This approach gives rise to a strong perception of unfairness. Where the prosecution opposes an application for trial by Judge alone, the Judge should have an overriding discretion to grant the trial on the terms requested by the defendant. Our Recommendation 277 should provide legislative assistance to Judges in the exercise of their discretion."
Recommendation 277(2) of the Commission was in the following terms:
"When parliament is of the view that the proper adjudication of an offence requires a jury trial in order to establish contemporary community standards, the legislation should stipulate that there is a presumption that the offence should be tried by jury."
However, it is clear that this recommendation of the Commission has not been implemented.
Similarly, Recommendation 337 of the Commission has also not been implemented in the express provisions of s 118. That recommendation was:
"Unless the Judge is of the opinion that the interests of justice require the trial to be by a judge and jury, and with due consideration of recommendation 277, the application should be granted."
It is clear that the Commission had in mind a structure in which the legislature would identify categories of offences in which there would be a presumption against trial by Judge without jury and that in all other cases there would be a presumption in favour of trial by Judge without jury upon application by an accused person. Plainly, s 118 has not embodied that approach. It is reasonable to infer from the legislature's rejection of those proposals that it intended that there would not be a preference for one mode of trial over another. That view of s 118 is supported by its express language.
Because of the significant differences between s 118 and the legislation applicable in other comparable jurisdictions, little guidance to the construction and application of s 118 is to be derived from decisions in those other jurisdictions. Further, because of the relative novelty of s 118, case law in this state as to its interpretation and application is very limited.
In the limited time available my researches have only identified three decisions dealing with the section. Two of those, The State of Western Australia v Tarau [2005] WASC 290 and The State of Western Australia v Iley [2006] WASC 107, were cases in which the application was granted on the ground that the essential issue for determination was whether the accused person was not guilty by reason of insanity. Because that issue will obviously turn largely upon the evaluation of expert evidence in each of those cases it was considered appropriate to grant the application.
The third case which I have identified is the decision to which I have already referred, namely the decision of Heenan J in Martinez. In that case applications for trial without jury were made by each of three accused persons jointly indicted on charges of murder. After reviewing the legislative provisions Heenan J observed at [5]:
"There is no limitation or elaboration of the criteria for the grant of such an order, namely that 'It is in the interests of justice to do so,' but it is expressly stated that the court may make such an order if it considers any of the circumstances specified in s 118(5) arise or are likely to arise. It follows, therefore, that subject to the factors specifically stated in the section and already described, the discretion of the court to grant such an order is at large, and that circumstances which may lead to the refusal to make such an order (but will not necessarily do so) may arise if the court considers that the trial will involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness …"
I respectfully agree entirely with that view of the section. However, his Honour goes on to draw an inference from s 118(6) of more general application which, with respect, I would not myself draw despite the principle of judicial comity to the effect that I should follow the decision of another Judge of this Court even though I am not bound by it. It will be recalled that s 118(6) refers to trials which:
"[W]ill involve a factual issue that requires the application of objective community standards such as an issue of reasonableness, negligence, indecency, obscenity or dangerousness."
Heenan J considered that subsection (at [6]; see also his Honour's reasons at [27]):
"… can be taken further as also reflecting an approach, itself not conclusive, in a case involving issues in which there may be expected to be legitimate scope for differences of opinion the need for the criminal law to reflect an objective community standard is better served by a decision by a panel of fact finders. That simply reveals, as a starting point, that such a panel of fact finders is likely to better reflect the objective standards of the community as a whole than any individual."
With the greatest of respect to his Honour, the application of the subsection has been clearly limited by the legislature to trials in which issues are likely to arise which will involve the determination of the question of whether the particular conduct established in that case falls on one or other side of the line between acceptable and unacceptable conduct in circumstances in which there is a range or spectrum of conduct which may or may not be acceptable according to contemporary community standards.
Thus, when the legislature refers to reasonableness, negligence or dangerousness it is plainly contemplating a spectrum of conduct which may or may not be so categorised depending upon contemporary community standards. The same observation is true of the other specific instances given in the subsection; that is, indecency or obscenity, the bounds of which will vary from time to time by reference to contemporary community standards.
Again with respect to his Honour, it is difficult for me to see how concepts of that kind can have any application to charges of homicide except perhaps cases involving manslaughter by negligent conduct, or possibly cases involving self‑defence or provocation. In cases of intentional homicide no questions of objective community standards commonly arise because, of course, all reasonable members of our community oppose the taking of human life. The same observations appear to me to apply to the other charges against Mr Arthurs; that is charges of unlawful sexual penetration of a child under the age of 13 and unlawful detention.
The observations made by Heenan J to which I have referred might be construed as suggesting a basic preference or fundamental starting point of preference for trial by jury which, in my respectful opinion, the words of the section do not sustain. However, after referring to the fact that the legislature did not stipulate a category of offences for which trial by Judge alone should not be available his Honour concluded (at [23]):
"This can only mean, in my view, that one should not approach an application for trial by Judge alone for a serious offence on the footing that there is a preliminary, presumptive or other inclination that trial by jury must be regarded as the preferential starting point. Rather, despite some initial inclinations to the contrary during the course of argument, I am satisfied that one should adopt a neutral position in relation to the preferred mode of trial on any such application and focus upon what are the interests of justice in the particular case. Doing that, as I consider I must, does not mean that one should ignore the expressions of view that cases involving community values, or a combination of factors upon which a judgment reflecting community standards is likely to be necessary, may be better taken by a jury of 12 than by an individual Judge."
I respectfully agree entirely with that view. However, where I respectfully differ from his Honour is in his apparent view that cases such as the one he was considering in which the essential question was whether a particular accused person had committed an act which is on any view abhorrent to community values or community standards is a case in which there should be some form of preference for jury trial.
Further, it is I think clear from the approach taken by Heenan J in the evaluation of the considerations which were applicable to the case before him that despite the presumption of neutrality to which he referred, because of the breadth of the view which he took as to cases involving community standards in fact he started from a presumption in favour of jury trial and assessed whether the applicants for trial by Judge alone had made out a case for departure from that presumptive position. That construction of the approach taken by his Honour is supported by his Honour's reference to the observations of Deane J in Kingswell v The Queen (1985) 159 CLR 264 at 301:
"In a legal system where the question of criminal guilt is determined by a jury of ordinary citizens, the participating lawyers are constrained to present the evidence and issues in a manner that can be understood by laymen. The result is that the accused and the public can follow and understand the proceedings. Equally important, the presence and function of a jury in a criminal trial and the well‑known tendency of jurors to identify and side with a fellow citizen who is, in their view, being denied a 'fair go' tend to ensure observance of the consideration and respect to which ordinary notions of fair play entitle an accused or a witness. Few lawyers with practical experience in criminal matters would deny the importance of the institution of the jury to the maintenance of the appearance, as well as the substance, of impartial justice in criminal cases."

Deane J goes on:
"The institution of trial by jury also serves the function of protecting both the administration of justice and the accused from the rash judgment and prejudices of the community itself. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over‑responsive to authority or remote from the affairs and concerns of ordinary people."
Although of course observations from any member of the High Court are entitled to great respect, it must be observed that those observations were made in a very different legal context to the present; namely, a context in which the question was whether a provision of the Customs Act1901 (Cth), which left certain issues of fact relating to the penalty for an offence to be determined by the court, and not by the jury, contravened s 80 of the Constitution.
The question of whether trial by jury is by reason of the policy considerations identified by Deane J generally to be preferred to trial by Judge without a jury is, with respect, a matter for the legislature, not the courts. As I agree with Heenan J that in s 118 the legislature has expressly declined to stipulate any general preference for one form of trial over another, observations of the kind made by Deane J as to the general desirability of one form of trial over another are, with respect, not germane to the issues which arise under s 118, save to the extent that they identify factors which may have a particular resonance due to the circumstances of a particular case.
Further, with the greatest of respect to Deane J, the proposition that "the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge" appears to be an assessment of a sociological nature, unsustained by any empirical evidence.
The subsequent events in the Martinez (see Martinez v The State of Western Australia [2007] WASCA 143) case showed that there is room to doubt the correctness of that assertion. In that case, the jury trial which was the consequence of his Honour's rejection of the application for trial by Judge alone became the subject of significant community disquiet, as was the decision of the Court of Appeal in the subsequent successful appeal. For my own part, I do not think it can be confidently asserted that one form of trial enjoys greater community acceptance than another.
That observation is reinforced by consideration of a significant aspect of trial by Judge without jury which is not referred to by Deane J in Kingswell, nor by Heenan J in Martinez. That is the fact that in a trial by Judge without jury, the Judge will provide detailed reasons for the verdict at which he or she arrives. Those reasons can then be carefully evaluated, both by the community and by any appellate court. By contrast, the decision of a jury is entirely inscrutable. Our community has come to expect reasoned justice in all civil cases, in all summary trials, in all administrative tribunals and at least in the sphere of Commonwealth administration, the vast majority of administrative decisions.
The obligation to provide reasons not only disciplines the decision‑maker but also provides a transparency and capacity for evaluation which the community has come to expect. In that context, the lack of any obligation on the part of a jury to provide reasons is somewhat anomalous but, as I have observed, in my view it is no part of the function of a Judge determining an application under s 118 to act upon a general view as to the desirability of one form of trial over another.
Nevertheless, the obligation of a Judge sitting without a jury to provide detailed reasons for decision may, in a particular case, be a significant consideration in favour of the grant of an application.
By the terms of s 118, the legislature has expressly declined to constrain the exercise of the discretion conferred upon a Judge hearing such an application. It has required the discretion to be exercised by reference to the broadest possible considerations, namely, the interests of justice, and although it has identified some of the factors which a court might take into account, it has expressly done so on the basis that the identification of those factors will not constrain the exercise of the discretion in a particular case.
In that context it would be unwise for any court to embark upon a process which the legislature has itself eschewed of identifying factors which might act as a constraint upon the exercise of the discretion or which will compel its exercise one way or the other. However, it may nevertheless be appropriate to identify factors which may be of significance depending upon the circumstances of the particular case. Some of those factors emerge from the report of the Commission, which led to the enactment of the legislation.
As I have already observed, it seems to me to be of some significance that the Commission referred to the subjective view of an accused person as to whether or not he or she would receive a fair trial from the jury. It is, I think, entirely consistent with the interests of justice for weight to be given to the subjective views of an accused person, provided of course that they are not fanciful or irrational. Thus, in my opinion an apprehension by an accused person, which is not fanciful or irrational, that he or she may not get a fair trial by jury because, for example, of pre‑trial publicity or because of their ethnic, religious, cultural or other peculiar circumstances, may be entitled to significant weight.
Therefore, in some cases the fact that an accused person has made an application for trial without jury and has an apprehension, which is not fanciful or irrational, that his or her trial by a jury may be prejudiced by any circumstance may of itself be sufficient to produce the conclusion that it is in the interests of justice for the application to be granted if there are no countervailing considerations in favour of trial by jury. However, in the present case I have no evidence before me as to the subjective views of Mr Arthurs on this issue, save as might be inferred from the fact of his application. In future cases, if the subjective views held by an accused person are to be relied upon, it would be preferable if direct evidence of those views is given. In this case, for reasons which I will now give, it is unnecessary to determine the weight to be given to the inference that might be drawn as to the subjective views of the accused, given the other factors that are present.
I come now to sum up the considerations that appear to me to be relevant to this case and to identify the particular considerations which I bring to bear.
Consistently with the views I have already expressed, I reject the State's suggestion that the public interest in this case supports a conclusion that a trial by jury is to be preferred because of an increased likelihood of community acceptance of a jury's verdict. Acceptance of such a proposition does not appear to me to be consistent with the legislative framework in which I am required to determine the application. Rather, I start from an entirely neutral position without predisposition or preference to one form of trial over another.
I note that none of the factors specifically identified by the legislature in s 118(5) and s 118(6) appear to me to have any application to this case; that is, the trial is not one of unusual complexity or length nor is there any prospect of interference with a jury nor does it appear from the materials presently available to me that the trial will involve a factual issue requiring the application of objective community standards.
In the circumstances of this case, as, in my respectful view, was the situation in the Martinez case, the community standards applicable to the conduct alleged are clear and uncontroversial. As in the Martinez case, the critical question in this case appears to be whether the accused person is a person who has in fact contravened those standards.
Therefore, none of the factors specifically identified by the legislature apply to shift the position of neutrality from which one starts in considering applications of this kind, and if one starts from a position of neutrality, I do not consider that there are any factors which point in favour of trial by jury which arise from the particular circumstances of this case. There are, however, a number of factors which appear to me to support the proposition that a trial by Judge without jury is, in the circumstances of this case, in the interests of justice.
Turning first to the pre‑trial publicity, as I have mentioned, it is fair to categorise that publicity as extensive, continuous and in some respects extraordinary. Those extraordinary aspects include, perhaps most significantly, the continuing assertions of an extraordinary character made against Mr Arthurs from a variety of sources on the Internet and the television broadcast which has arguably prejudiced Mr Arthurs' ability to obtain a fair trial by jury.
There are of course many cases dealing with the extent to which prejudice that might be occasioned by pre‑trial publicity can be ameliorated by an appropriate warning and direction to the jury, and it is standard practice in Western Australia to direct juries that they should not make any access to the Internet to conduct any of their own inquiries in relation to any aspect of the case before them. However, there is, I think, room for doubt as to the efficacy of these processes, particularly in cases which have achieved the notoriety of this case. So in my opinion there is some weight in the proposition that there is a prospect that the fairness of Mr Arthurs' trial might be prejudiced by the extensive publicity to which I have referred if he is tried by a jury.
The second factor which I take into account is the possible effect which the evidence as to the circumstances of the offence might have upon a jury. As I mentioned earlier, it is, I think, neither necessary nor appropriate for me to detail those circumstances other than to observe that the evidence is likely to test the emotional strength and fortitude of any person required to consider it in detail, whether juror or Judge.
Despite their training and experience, it would, I think, be unwise to assume that Judges are any less vulnerable to human emotions and frailty than any other member of the community. However, it is in this context that an obligation to provide reasons appears to me to be of particular significance. Through the performance of that obligation, the accused person, the community and where necessary an appeal court can evaluate whether, and if so the extent to which emotion may have influenced the decision, at least to a greater extent than in the case of a jury verdict. That consideration seems to me to lend weighty support in this case to the proposition that trial by Judge without jury is in the interests of justice.
A third factor which I take into account is allied to the second in that it draws upon the significance of the obligation to provide reasons in the event of a trial by Judge without jury. While it could not be said that the complexity and length of this trial is such that it would be burdensome on a jury, there are more than 70 prosecution witnesses named on the indictment, although we do not yet know how many of those witnesses are to be called. The latest estimate as to the length of trial I have received is one of ten days.
I am, however, told by defence counsel that there are likely to be issues requiring the detailed evaluation of expert evidence, including expert pathological and psychiatric evidence. I accept though that it is difficult to be certain as to precisely the extent of that evidence at this stage.
I do not for one moment suggest that those are issues which are beyond the capacity of a jury and although this is not a factor upon which I would place considerable weight, from my review of the prosecution brief there do appear to be aspects of this case in respect of which the delivery of reasoned decisions for judgment would be in the interests of justice.
Bringing all these considerations together, starting from a position of neutrality as to the mode of trial to be adopted, it does not seem to me that in the particular circumstances of this case there are any particular factors which would support trial by jury. On the other hand, there are in my opinion three factors which support the conclusion that it is in the interests of justice for Mr Arthurs to be tried by a Judge without a jury, and I so direct.